John Z. Mardesich v. Charles J. Marciel and Lucy Marciel

Ninth Circuit

John Z. Mardesich v. Charles J. Marciel and Lucy Marciel

538 F.2d 848, 21 Fed. R. Serv. 2d 1390, 41 Cal. Comp. Cases 1008, 1976 U.S. App. LEXIS 8030, 1976 A.M.C. 2091

Court of Appeals for the Ninth Circuit·Decided July 14, 1976·No. 74-3338·Published·Cited by 27 cases

Opinion

OPINION

Before ELY and WALLACE, Circuit Judges, and CRARY, * District Judge.

PER CURIAM:

Mardesich instituted a personal injury suit under 46 U.S.C. § 688 (the Jones Act) and general maritime law. After a non-jury trial, the District Court entered a judgment for Mardesich in the amount of $13,-000. Mardesich appeals, arguing that the District Court either refused to exercise *849 discretion or abused its discretion in denying Mardesich’s motion for relief from his waiver of a jury trial under Fed.R.Civ.P. 39(b). Mardesich had never formally demanded a jury trial, as he had the right to do under the Jones Act. He requested to be relieved from his waiver at the. pre-trial hearing on the alleged basis of “slight oversight,” but the District Court denied the request. We affirm.

Mardesich wrongly characterizes the District Court’s decision as a failure to exercise discretion, when, as we see the facts, the District Court had virtually no discretion to exercise. The only reason advanced by Mardesich in support of his motion for relief was oversight or inadvertence in failing properly to demand a jury trial.

The Court of Appeals for the Second Circuit has adopted a rather stringent rule, holding that “[ujntimely requests for jury trial must be denied unless some cause beyond mere inadvertence is shown.” Galella v. Onassis, 487 F.2d 989, 996 (2nd Cir. 1973). In adopting its position the Second Circuit has apparently been persuaded by a consistent line of district court cases denying relief based on mere inadvertence, effectively narrowing the allowable scope of the trial court’s discretion “to determining whether the moving party’s showing beyond mere inadvertence is sufficient to justify relief.” See Noonan v. Cunard Steamship Co., 375 F.2d 69, 70 (2nd Cir. 1967) (Emphasis in original).

Whatever the test that should be applied, it is clear from the record here that the District Court did not abuse its discretion, such as it had, in denying Mardesich relief from his waiver. See Rutledge v. Electric Hose & Rubber Co., 511 F.2d 668, 675 (9th Cir. 1975); Tomlin v. Pope & Halbot Inc., 282 F.2d 447, 449 (9th Cir. 1960).

AFFIRMED.

Free access — add to your briefcase to read the full text and ask questions with AI

OPINION

Before ELY and WALLACE, Circuit Judges, and CRARY, * District Judge.

PER CURIAM:

Mardesich instituted a personal injury suit under 46 U.S.C. § 688 (the Jones Act) and general maritime law. After a non-jury trial, the District Court entered a judgment for Mardesich in the amount of $13,-000. Mardesich appeals, arguing that the District Court either refused to exercise *849 discretion or abused its discretion in denying Mardesich’s motion for relief from his waiver of a jury trial under Fed.R.Civ.P. 39(b). Mardesich had never formally demanded a jury trial, as he had the right to do under the Jones Act. He requested to be relieved from his waiver at the. pre-trial hearing on the alleged basis of “slight oversight,” but the District Court denied the request. We affirm.

Mardesich wrongly characterizes the District Court’s decision as a failure to exercise discretion, when, as we see the facts, the District Court had virtually no discretion to exercise. The only reason advanced by Mardesich in support of his motion for relief was oversight or inadvertence in failing properly to demand a jury trial.

The Court of Appeals for the Second Circuit has adopted a rather stringent rule, holding that “[ujntimely requests for jury trial must be denied unless some cause beyond mere inadvertence is shown.” Galella v. Onassis, 487 F.2d 989, 996 (2nd Cir. 1973). In adopting its position the Second Circuit has apparently been persuaded by a consistent line of district court cases denying relief based on mere inadvertence, effectively narrowing the allowable scope of the trial court’s discretion “to determining whether the moving party’s showing beyond mere inadvertence is sufficient to justify relief.” See Noonan v. Cunard Steamship Co., 375 F.2d 69, 70 (2nd Cir. 1967) (Emphasis in original).

Whatever the test that should be applied, it is clear from the record here that the District Court did not abuse its discretion, such as it had, in denying Mardesich relief from his waiver. See Rutledge v. Electric Hose & Rubber Co., 511 F.2d 668, 675 (9th Cir. 1975); Tomlin v. Pope & Halbot Inc., 282 F.2d 447, 449 (9th Cir. 1960).

AFFIRMED.

John Z. Mardesich v. Charles J. Marciel and Lucy Marciel, 538 F.2d 848, 21 Fed. R. Serv. 2d 1390, 41 Cal. Comp. Cases 1008, 1976 U.S. App. LEXIS 8030, 1976 A.M.C. 2091 (9th Cir. 1976).

Pincite

538 F.2d 848 (John Z. Mardesich v. Charles J. Marciel and Lucy Marciel) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related