Case 2:18-cv-02217-SJO-FFM
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17DISTRICT
Filed 03/29/18
4 Page ID #:216
UNITED
STATES
COURTPage 1 of Priority
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

CASE NO.: CV 18-02217 SJO (FFMx)
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DATE: March 29, 2018

Stephanie Clifford v. Donald J. Trump et al.

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PRESENT: THE HONORABLE S. JAMES OTERO, UNITED STATES DISTRICT JUDGE
Victor Paul Cruz
Courtroom Clerk

Not Present
Court Reporter

COUNSEL PRESENT FOR PLAINTIFFS:

COUNSEL PRESENT FOR DEFENDANTS:

Not Present

Not Present

========================================================================
PROCEEDINGS (in chambers): ORDER DENYING PLAINTIFF'S MOTION FOR EXPEDITED
JURY TRIAL [Docket No. 16]
This matter is before the Court on Plaintiff Stephanie Clifford's ("Plaintiff") Motion for Expedited
Jury Trial Pursuant to Section 4 of the Federal Arbitration Act, and for Limited Expedited Discovery
("Motion"), filed March 27, 2018.1 The Court found this matter suitable for disposition without oral
argument and vacated the hearing set for April 30, 2018. See Fed. R. Civ. P. 78(b). For the
following reasons, the Court DENIES Plaintiff's Motion
I.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff filed her Complaint in the Superior Court of the State of California for the County of Los
Angeles on March 6, 2018, seeking declaratory judgment that an alleged non-disclosure
agreement (the "Agreement") between herself, Essential Consultants, LLC ("EC"), and current
United States President Donald J. Trump ("Mr. Trump") is void, invalid, or unenforceable. (See
generally Notice of Removal, Ex. 1 ("Compl."), ECF No. 1-1.) This Agreement had been the
subject of a separate Temporary Restraining Order ("TRO") that was issued against Clifford during
arbitration proceedings unilaterally initiated by EC. (Decl. Michael J. Avenatti in Supp. Mot.
("Avenatti Decl.") ¶ 5, ECF No. 16-2.) EC removed the instant action to federal court on March
16, 2018. (See generally Notice of Removal, ECF No. 1.) Mr. Trump joined the Notice of
Removal the same day. (Joinder, ECF No. 5.) Plaintiff filed a First Amended Complaint ("FAC")
on March 26, 2018, adding a claim for defamation against Michael Cohen ("Cohen"), named in
the Agreement as the attorney for EC. (See generally FAC, ECF No. 14.)
In the Notice of Removal, EC states that it "intends to file a Petition to Compel Arbitration with this
Court at the earliest possible time permitted by the Federal Rules of Civil Procedure and Local

1

The Court notes that the Motion exceeds the page limit set forth in the Court's Initial
Standing Order. (See Initial Standing Order ¶ 24, ECF No. 11.) The parties are advised
to carefully review the Initial Standing Order and the local rules of this Court.
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 Case 2:18-cv-02217-SJO-FFM
Document
17DISTRICT
Filed 03/29/18
UNITED
STATES
COURTPage 2 of 4 Page ID #:217
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

CASE NO.: CV 18-02217 SJO (FFMx)

DATE: March 29, 2018

Rules of this Court, to compel this action to the Pending Arbitration Proceeding." (Notice of
Removal 3.) The Joinder filed by Mr. Trump likewise states that he "intends to join in EC's
anticipated Petition to Compel Arbitration under the Arbitration Agreement." (Joinder 2.) Based
on EC's stated intention to file this petition, Plaintiff now moves for an expedited jury trial and
limited discovery under section four of the Federal Arbitration Act ("FAA"). (See generally Mot.,
ECF No. 16.)
II.

LEGAL STANDARD

Section four of the FAA provides in relevant part that:
A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate
under a written agreement for arbitration may petition any United States district court
. . . for an order directing that such arbitration proceed in the manner provided for
in such agreement. Five days' notice in writing of such application shall be served
upon the party in default . . . . The court shall hear the parties, and upon being
satisfied that the making of the agreement for arbitration or the failure to comply
therewith is not in issue, the court shall make an order directing the parties to
proceed to arbitration in accordance with the terms of the agreement . . . . If the
making of the arbitration agreement or the failure, neglect, or refusal to
perform the same be in issue, the court shall proceed summarily to the trial
thereof. If no jury trial be demanded by the party alleged to be in default . . . the
court shall hear and determine such issue. Where such an issue is raised, the
party alleged to be in default may . . . on or before the return day of the notice
of application, demand a jury trial of such issue, and upon such demand the
court shall make an order referring the issue or issues to a jury in the manner
provided by the Federal Rules of Civil Procedure, or may specially call a jury
for that purpose. If the jury find that no agreement in writing for arbitration was
made or that there is no default in proceeding thereunder, the proceeding shall be
dismissed. If the jury find that an agreement for arbitration was made in writing and
that there is a default in proceeding thereunder, the court shall make an order
summarily directing the parties to proceed with the arbitration in accordance with the
terms thereof.
9 U.S.C.A. § 4.
Courts confronted with the issue have generally determined that "the return day of the notice of
application," by which a plaintiff must file a demand for jury trial, is the date on which the plaintiff's
opposition to a petition to compel arbitration is due. See Burch v. P.J. Cheese, Inc., 861 F.3d
1338, 1349 n. 19 (11th Cir. 2017) (holding that the plaintiff's due date for his opposition is the
"dispositive return day of the notice of application"); Castillo v. Lowe's HIW, Inc., No. C13-4590
TEH, 2013 WL 12143002, at *4 (N.D. Cal. Dec. 2, 2013) ("If Plaintiff desired a jury trial on this
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17DISTRICT
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COURTPage 3 of 4 Page ID #:218
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

CASE NO.: CV 18-02217 SJO (FFMx)

DATE: March 29, 2018

issue, he was required to demand one in his opposition to Defendant's motion to compel
arbitration or prior to the date the opposition brief was due."); Alvarez v. T-Mobile USA, Inc., No.
CIV. 2:10-2373 WBS, 2011 WL 6702424, at *9 (E.D. Cal. Dec. 21, 2011).
II.

DISCUSSION

In her Motion, Plaintiff requests an expedited jury trial and limited discovery concerning the
existence of a valid arbitration agreement in anticipation of EC's forthcoming petition to compel.
Plaintiff cites a number of factual disputes that would potentially require determination by a jury,
including (1) whether "David Dennison," one of the parties named in the Agreement, is a
pseudonym for Mr. Trump; (2) whether Mr. Trump had knowledge of the Agreement; and (3) the
role of EC and Cohen in the formation of the Agreement. (Mot. 7.)
While Plaintiff is correct that "a party alleged to be in default" is entitled to demand a jury trial on
a valid question regarding "the making of an arbitration agreement," this question must in fact be
"in issue." 9 U.S.C.A. § 4. Absent a petition "for an order directing that such arbitration proceed
in the manner provided for in such agreement," 9 U.S.C.A. § 4, such a demand is untimely. While
EC and Mr. Trump have stated their intention to file a petition to compel arbitration, they have not
yet done so. If such a petition were filed, a number of the questions raised in Plaintiff's Motion
may be answered in the petition, thus limiting the need for discovery on these issues. If such a
petition is never filed, Plaintiff's Motion is moot. Accordingly, Plaintiff's Motion is premature and
must be denied.
The Court's finding is further bolstered by the fact that neither EC nor Mr. Trump have filed a
responsive pleading in the action.2 Under Federal Rule of Civil Procedure ("Rule") 15(a)(3),
"[u]nless the Court orders otherwise, any required response to an amended pleading must be
made within the time remaining to respond to the original pleading or within 14 days after service
of the amended pleading, whichever is later." Fed. R. Civ. P. 15(a)(3). The time remaining for EC
and Mr. Trump to respond to the original pleading is governed by Rule 81(c), which provides that
a defendant who does not answer before removing an action to federal court must answer or
present other defenses or objections within the longer of: "(A) 21 days after receiving—through
service or otherwise—a copy of the initial pleading stating the claim for relief; (B) 21 days after
being served with the summons for an initial pleading on file at the time of service; or (C) 7 days
after the notice of removal is filed." Fed. R. Civ. P. 81(c)(2). As no proof of service has yet been
filed with the Court, the time period allotted under Rule 81(c)(2)(B) is inapplicable. (See generally
Dkt.; see also Notice of Removal 2 ["[n]either of the Defendants has been served with a copy of

2

Cohen, who was added as a party to the FAC on March 26, 2018, has not yet been
served in the action, and must be properly served under Rule 4 of the Federal Rules of Civil
Procedure. See Fed. R. Civ. Proc. 4.
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 Case 2:18-cv-02217-SJO-FFM
Document
17DISTRICT
Filed 03/29/18
UNITED
STATES
COURTPage 4 of 4 Page ID #:219
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

CASE NO.: CV 18-02217 SJO (FFMx)

DATE: March 29, 2018

the Summons or Complaint"]; Joinder 2 ["Mr. Trump has not been served with the summons or
complaint in this action"].)
The Notice of Removal does state, however, that "EC has obtained from the California Superior
Court" the Summons and Complaint. (Notice of Removal 7.) While EC does not specifically name
the date that it obtained these documents, the latest that receipt could have occurred would have
been March 16, 2018—the date the Notice of Removal was filed with copies of the Summons and
Complaint attached. As Mr. Trump joined the Notice of Removal, both parties would be required
to file an answer or responsive pleading to the original pleading on or before April 6, 2018. Under
Rule 15, service of the FAC on March 26, 2018 would extend the time to respond until April 9,
2018. However, because Plaintiff has not yet filed a certificate of service with the Court regarding
service of the FAC—as required under Rule 5(a)(1)(B) and Rule 5(d)(1)—the exact deadline is
unknown. See Fed. R. Civ. Proc. 5(a)(1)(B) (stating that "a pleading filed after the original
complaint" must be served on every party; Fed. R. Civ. Proc. 5(d)(1) (stating that any paper after
the complaint that is required to be served must be filed "together with a certificate of service"
within a reasonable time after service).
Given that Plaintiff has failed to follow certain of the Court's procedural requirements that would
trigger a responsive pleading deadline for the defendants, and that such a responsive pleading
may answer a number of questions raised by Plaintiff's Motion, the Court declines to prematurely
address these issues.3
III.

RULING

For the foregoing reasons, the Court DENIES without prejudice Plaintiff Stephanie Clifford's
Motion for Expedited Jury Trial Pursuant to Section 4 of the Federal Arbitration Act, and for Limited
Expedited Discovery. The Court further ORDERS Plaintiff to file the required proofs or certificates
of service for the FAC within fourteen (14) days of the date of this Order. Defendants Essential
Consultants, LLC and Donald J. Trump must file responsive pleadings within fourteen (14) days
of the date service is accomplished, and Defendant Michael Cohen must file a responsive pleading
within twenty-one (21) days of the date service is accomplished.
IT IS SO ORDERED.

3

The parties are advised that the instant litigation is not the most important matter on the
Court's docket. Requests for expedited proceedings, hearings, and discovery not clearly
supported by the record and law are discouraged.
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