Petitioner, the plaintiff in the wrongful death case below, originally filed her complaint in California state court. She included in the caption a jury demand that would have satisfied federal rules and procedures if filed in federal court. See Fed.R.Civ.P. 38. Before filing its response to the complaint, the defendant removed the action to the federal court. No further jury demand was made until the pretrial conference held months after all responsive pleadings had been filed. At that time, the district court held that petitioner had waived her right to a jury trial and set the case for a bench trial. Petitioner seeks a writ of mandamus directing the district court to conduct a jury trial.

While mandamus relief is extraordinary and is available only in very limited circumstances, the wrongful denial of a jury trial is an appropriate basis for such relief. See Dairy Queen v. Wood, 369 U.S. 469, 82 S. Ct. 894, 8 L. Ed. 2d 44 (1962); Myers v. U.S. District Court, 620 F.2d 741 (9th Cir.1980). Thus, the only question presented here is whether the district court erred in denying petitioner's request for a jury trial.

Fed.R.Civ.P. 81(c), relating to the removal of actions, provides that the federal rules govern an action once it is removed, and that repleading shall not be necessary unless the district court so orders. Rule 81(c) provides that Rule 38(b) applies to jury demands in removed actions where responsive pleadings have not been filed prior to removal. See Lewis v. Time, Inc., 710 F.2d 549, 556 (9th Cir.1983). The rule further provides that a new jury demand is not necessary when a pre-removal demand has been made that satisfies state law, or when state law does not require an affirmative demand.

The district court held that, because petitioner's jury demand did not satisfy California law, which requires an express demand at the time the case is set for trial, petitioner waived her right to a jury trial under Fed.R.Civ.P. 81(c) and 38(b) by not filing a new demand after removal.

Petitioner does not argue that her original jury demand satisfied state law, or that California does not require an affirmative demand. See Cal.Code of Civil Proc. Sec. 631. Rather, petitioner asserts that the jury demand contained in her complaint satisfied Rule 38(b) when it was filed in the district court upon removal.1 Petitioner's argument is primarily based on the provision of Rule 81(c) that states that repleading shall not be necessary unless the district court so orders.2 Petitioner asserts that her complaint, when removed to federal court, became a part of the federal court record, and that her jury demand was filed at that time in accordance with Rule 38(b).

We agree. Although this court is aware of no federal cases addressing the circumstances present here, the history and purpose of Rule 81(c) supports petitioner's incorporation theory. Prior to the 1963 amendments to the rule, there were no explicit exceptions to the requirement of filing a new jury demand in removed actions. Nevertheless, the majority of federal courts addressing the issue held that a new jury demand need not be filed after removal where one had been filed in state court because the previously filed demand became a part of the federal court record. See Talley v. American Bakeries Co., 15 F.R.D. 391 (E.D.Tenn.1954); Advisory Committee Notes to Fed.R.Civ.P. 81, 28 U.S.C.A. at page 32 (West 1970). The 1963 amendment was enacted to adopt the majority view. See Advisory Committee Notes, supra, at page 32.

In addition to the plain language of Rule 81(c), which states that repleading shall not be necessary, and the history of the rule, it is important to consider the purpose of the federal jury demand requirements, which is to notify counsel and the court as early as possible that a jury is sought. See Gallagher v. Delaware & H.R. Corp., 15 F.R.D. 1 (3rd Cir.1953). In this case, notice has been given to defendants' counsel since commencement of the action and to the district court upon removal.

Furthermore, there is a presumption against unintended waivers of the right to jury trial. See Pradier v. Elespuru, 641 F.2d 808, 811 (9th Cir.1981); Christenson v. Diversified Builders, Inc., 331 F.2d 992 (10th Cir.1964). In fact, the additional exception in Rule 81(c) for cases removed from states not requiring a jury demand was enacted in 1963 "[i]n order still further to avoid unintended waivers of jury trial ..." Advisory Committee Notes, supra, at page 32.

We therefore hold that, where a pre-removal jury demand would satisfy federal but not state requirements, that demand is incorporated into the federal record upon removal, and is deemed to satisfy Rule 38(b).

Accordingly, the petition for writ of mandamus is granted. The district court is ordered to vacate its orders denying petitioner's requests for a jury trial, and to set the case for trial by jury.