ORDER

KIMBERLY J. MUELLER, District Judge.

Target Corporation ("defendant") moves to strike plaintiffs' jury demand. Def.'s Mot. Strike Pls.' Jury Demand ("Mot.") at 1, ECF No. 18-1. The court heard argument on April 25, 2014, with Ilija Cvetich appearing for plaintiffs and Anthony J. Musante appearing for defendant. For the reasons below, the court construes the motion to strike under Federal Rule of Civil Procedure 12(f) as a motion to strike under Rule 39(a)(2) and GRANTS the motion.

I. BACKGROUND

Plaintiffs, former employees of defendant, allege various employment claims. Compl. ¶¶ 32-77, ECF No. 2-1. They filed suit in California Superior Court, Yolo County on June 21, 2013, id. at 13, and defendant answered on August 2, 2013, Notice of Removal, Ex. B, ECF No. 2-2. On the basis of diversity jurisdiction, defendant properly removed on August 5, 2013. Order Denying Pls.' Mot. Remand at 1-2, ECF No. 11.

In anticipation of the January 9, 2014 scheduling conference, the parties filed a joint status report on December 6, 2013. Joint Status Report at 6, ECF No. 13. At the conference, the court directed the parties to brief whether plaintiffs had waived the right to a jury trial and to calendar the matter for hearing no later than March 28, 2014. Status (Pretrial Scheduling) Order at 4, ECF No. 15. Defendant filed the instant motion on March 17, 2014, Mot. at 7, plaintiffs opposed on April 10, 2014, Pls.' Opp'n to Mot. ("Opp'n") at 5, ECF No. 19, and defendant replied on April 18, 2014, Def.'s Reply to Opp'n ("Reply") at 6, ECF No. 20.

II. STANDARD

Federal Rule of Civil Procedure 12(f) permits a court to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." However, "Rule 12(f) does not authorize district courts to strike claims . . . precluded as a matter of law" because such claims do not fall within one "of the five categories cover[ed]" by Rule 12(f). Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 974-75 (9th Cir. 2010). To "read Rule 12(f) in a manner that allow[s] litigants to use it as a means to dismiss some or all of a pleading . . . would . . . creat[e] redundancies within the Federal Rules of Civil Procedure[] because a Rule 12(b)(6) motion . . . already serves such a purpose." Id. at 974. Further, to do so would result in "[a]pplying different standards of review[] when the . . . underlying action is the same" because Rule 12(f) motions are reviewed for abuse of discretion, while Rule 12(b)(6) motions are reviewed de novo. Id.

"`Where a motion is in substance a Rule 12(b)(6) motion, but is incorrectly denominated as a Rule 12(f) motion, a court may convert the improperly designated Rule 12(f) motion into a Rule 12(b)(6) motion.'" Kelley v. Corr. Corp. of Am., 750 F.Supp.2d 1132, 1146 (E.D. Cal. 2010) (quoting Consumer Solutions R.E.O., LLC v. Hillery, 658 F.Supp.2d 1002, 1021 (N.D. Cal. 2009)). This allows the court to avoid different standards of review but remains consistent with "`[t]he function of a 12(f) motion . . . to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial.'" Consumer Solutions, 658 F. Supp. 2d at 1020 (quoting Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993)).

"[M]otions challenging the legitimacy of a jury demand are frequently identified as `motions to strike.' Such motions, however, have only rarely been associated with Rule 12(f). . . . It is arguable that a motion to strike a jury demand is more appropriately made under Rule 39(a)(2). . . ." Brown v. Aetna Life Ins. Co., No. EP-13-CV-131-KC, 2013 WL 3442042, at *5 (W.D. Tex. July 8, 2013) (citations omitted). Under Rule 39(a)(2), "[w]hen a jury trial has been [properly] demanded . . ., the action must be designated on the docket as a jury action," "unless . . . the court . . . finds . . . there is no federal right to a jury trial."

III. ANALYSIS

Defendant argues plaintiffs failed to timely demand a jury trial. Mot. at 1. It asserts that plaintiffs did not make a demand sufficient to meet the requirements under either state or federal law, if ever, until filing of the joint status report. Id. However, the report was not filed until the period authorized by Rule 38 had elapsed. Id. Thus, defendant concludes, plaintiffs have waived their right to a jury trial. Id.

Plaintiffs concede they did not "demand[] a jury trial . . . [until] the parties submitted their [joint status report]" and the original complaint, still operative, "does not explicitly demand a jury trial." Opp'n at 3. Nonetheless, they insist defendant was aware of plaintiffs' intention to try the case to a jury before the Rule 38 deadline passed, as evidenced by defendant's "acknowledge[ment] that this case would proceed by jury trial and presumabl[e] anticipat[ion of] Plaintiffs' jury demand." Id. (citing Notice of Removal ¶ 15). Because the demand requirement serves to provide notice, plaintiffs argue the court "has the discretion to grant Plaintiffs' jury demand and . . . should use its discretion . . . here." Id.

As a prefatory matter, because defendant asserts that the jury demand is untimely and thus precluded as a matter of law, the demand is not properly the subject of a motion to strike under Rule 12(f). See Whittlestone, Inc., 618 F.3d at 974-75. Additionally, although the court may construe a motion to strike as a motion to dismiss where the challenged claim is allegedly precluded as a matter of law, Kelley, 750 F. Supp. 2d at 1146, a jury demand is not a claim or part thereof and, therefore, not properly the subject of a motion to dismiss under Rule 12(b)(6), see FED. R. CIV. P. 12(b).1 Instead, a motion to strike a demand for jury trial is properly brought under Rule 39(a)(2), see Brown, 2013 WL 344042, at *5, and the court construes defendant's motion as such, cf. FED. R. CIV. P. 8(e) ("Pleadings must be construed so as to do justice.").

"[T]he purpose of a jury demand is to inform the court and opposing counsel that certain issues will be tried to a jury." Lutz v. Glendale Union High Sch., 403 F.3d 1061, 1065 (9th Cir. 2005). At a minimum, courts "insist . . . that the jury demand be sufficiently clear to alert a careful reader that a jury trial is requested. . . ." Id. at 1064. "A party waives a jury trial unless its demand is properly served and filed." FED. R. CIV. P. 38(d). However, the court "`indulge[s] every reasonable presumption against waiver' of the jury trial right." Lutz, 403 F.3d at 1064 (quoting Aetna Ins. Co. v. Kennedy ex rel. Bogash, 301 U.S. 389, 393 (1937)).

Rule 81 governs jury demands in a removed action. FED. R. CIV. P. 81(c)(3). Under the rule, "a party [is] entitled to a jury trial . . . if the party serves a demand within 14 days after" removal. Id. "[F]ailure to make a timely jury trial request in federal court . . . ordinarily mean[s] that [the party] waived [the] right to trial by jury." Lutz, 403 F.3d at 1063 (citation omitted). "However, Rule 81(c) provides two possible avenues around waiver in removal cases": (1) if the party "made a proper jury request under state law before the case was removed," id. (emphasis in original) (citing FED. R. CIV. P. 81(c)); or (2) "if [the] state complaint already contained a jury demand that would have satisfied Rule 38(b)," id. at 1064 (citations omitted).

Additionally, the court in its discretion "may, on motion, order a trial by a jury of any or all issues." FED. R. CIV. P. 39(b); see also Lewis v. Time, Inc., 710 F.2d 549, 556 (9th Cir. 1983) ("The district court, in its discretion, may order a jury trial on a motion by a party who has not filed a timely demand for one." (citation omitted)), overruled on other grounds by Unelko Corp. v. Rooney, 912 F.2d 1049, 1052-53 (9th Cir. 1990). Notwithstanding the court's discretion, "[a]n untimely request for a jury trial must be denied unless some cause beyond mere inadvertence is shown." Pac. Fisheries Corp. v. H.I.H. Cas. & Gen. Ins., Ltd., 239 F.3d 1000, 1002 (9th Cir. 2001) (citations omitted); see also Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1086 (9th Cir. 2002). Absent such a showing, granting an untimely jury demand constitutes an abuse of discretion. Lutz, 403 F.3d at 1065 n.4 (citation omitted).

Here, as already noted, plaintiffs concede they did not "demand[] a jury trial . . . [until] the parties submitted their [joint status report]." Opp'n at 3. Defendant removed on August 5, 2013, Notice of Removal at 7, and the joint status report was not filed until December 6, 2013, Joint Status Report at 6. Because more than fourteen days elapsed in the interim, plaintiffs' demand is untimely. FED. R. CIV. P. 81(c)(3). Accordingly, unless an exception applies, the right has been waived. Id.; FED. R. CIV. P. 38(d).

As noted, a party is excused from Rule 81(c)'s requirements if the party "made a proper jury request under state law before the case was removed." Lutz, 403 F.3d at 1063 (emphasis in original) (citing FED. R. CIV. P. 81(c)). Under California law, the party demanding a jury trial must make "an express demand at the time the case is set for trial." Mondor v. U.S. Dist. Court, 910 F.2d 585, 586-87 (9th Cir. 1990) (interpreting CAL. CIV. PROC. CODE § 631); Singh v. Sw. Airlines Co., 82 F. App'x 549, 551 (9th Cir. 2003) (mem.) ("We have construed California law as requiring an express demand [for a jury trial]."). Here, plaintiffs concede the complaint "does not explicitly demand a jury trial," Opp'n at 3, and they made no other "express demand" in state court, Hr'g Tr. 5:13-17, ECF No. 23. Thus, plaintiffs did not make a proper state request prior to removal. Mondor, 910 F.2d at 586-87.

A party is also excused from Rule 81(c)'s requirements "if [the] state complaint already contained a jury demand that would have satisfied Rule 38(b)." Lutz, 403 F.3d at 1064 (citations omitted). Under Rule 38(b), such a demand must "be sufficiently clear to alert a careful reader that a jury trial is requested. . . ." Id. The demand need not, however, be "ideal." Id. Even one "made in passing," "buried in the body of the complaint" or "easily . . . overlooked" may suffice. Id.

Here, plaintiffs concede the complaint contains no jury demand.2 Opp'n at 3. Even where the court "indulg[es] every reasonable presumption against waiver," the holding in Lutz cannot be stretched to permit nonexistent demands. 403 F.3d at 1064 (citation and internal quotation marks omitted). The complaint contains no jury demand; therefore, it necessarily fails to include one that satisfies Rule 38(b).

Plaintiffs also argue that because defendant "acknowledged that this case would proceed by jury trial and presumably anticipated Plaintiffs' jury demand," they have "satisfied their duty as to the purpose of the demand early in the proceedings. . . ." Opp'n at 3 (citing Notice of Removal ¶ 15). In the Notice of Removal, defendant asserts diversity jurisdiction, stating "it is unimaginable that Plaintiffs' counsel would seek less than $75,000 in attorneys' fees for a jury trial of the claims alleged in the Complaint." Notice of Removal ¶ 15. In so arguing, defendant necessarily presupposed a jury trial would occur. However, even assuming defendant had actual knowledge that plaintiffs intended to try the case to a jury, this alone is insufficient to permit the court to "reasonabl[y] presum[e]" that defendant had this knowledge because plaintiffs made a demand that complied with Rule 38(b). Lutz, 403 F.3d at 1064 (citation and internal quotation marks omitted).

Lastly, the court, "in its discretion, may order a jury trial on a motion by a party who has not filed a timely demand for one." Lewis, 710 F.2d at 556 (citing FED. R. CIV. P. 39(b)). However, this discretion is limited: "[a]n untimely request for a jury trial must be denied unless some cause beyond mere inadvertence is shown." Pac. Fisheries Corp., 239 F.3d at 1002. Here, the request is untimely, and plaintiffs have failed to advance any explanation for their delinquency. Rather, they contend on the basis of Johnson v. Dalton, 57 F.Supp.2d 958, 961 (C.D. Cal. 1999), that despite plaintiffs' inadvertence, the court may exercise its discretion. Opp'n at 4.

Plaintiffs' citation is misplaced. In Johnson, the district court exercised its discretion to permit a jury trial, despite the plaintiff's admission "that the failure to timely file a jury demand was the result of `oversight or inadvertence.'" 57 F. Supp. at 960 (citing Lewis, 710 F.2d at 556). This was in contravention of controlling Ninth Circuit authority, and the Johnson court admitted as much. Id. ("Despite suggestions in Ninth Circuit opinions that the Court does not have discretion in this case, the Court finds that the Rule itself, case law, and policy support the court's [sic] exercise of discretion here."). Bound by the Ninth Circuit's admonition that the court's "`discretion is narrow . . . and does not permit a court to grant relief when the failure to make a timely demand results from an oversight or inadvertence,'" id. (quoting Lewis, 710 F.2d at 556), this court declines to follow Johnson. In light of plaintiffs' insufficient showing, the court is without discretion to order a jury trial.

IV. CONCLUSION

The court GRANTS the motion to strike under Rule 39(a)(2). The case will not be tried to a jury. The court may, at a later date and upon further briefing, decide whether to empanel an advisory jury under Rule 39(c)(1).

IT IS SO ORDERED.