Opinion · Court of Appeals for the Ninth Circuit

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

John Z. Mardesich v. Charles J. Marciel & Lucy Marciel, 538 F.2d 848 (9th Cir. 1976)

Type
Opinion
Court
Court of Appeals for the Ninth Circuit
Jurisdiction
Federal
Date
1976-07-14
Topic
general

How later courts describe this case

  • Where the only reasons advanced are oversight or inadvertence, the trial court has "virtually no discretion to exercise."

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MARDESICH v. MARCIEL,538 F.2d 848(9th Cir. 1976)
JOHN Z. MARDESICH, APPELLANT, v. CHARLES J. MARCIEL AND LUCY MARCIEL,
APPELLEES.
No. 74-3338.
United States Court of Appeals, Ninth Circuit.
July 14, 1976.
Daniel C. Olney, of Olney, Levy, Kaplan Tenner, Wilimington, Cal., for appellant.

Herbert R. Lande, of Manns, Manns Lande, Beverly Hills, Cal., for appellees.
Appeal from the United States District Court for the Southern District of California.
[1] OPINION
Before ELY and WALLACE, Circuit Judges, and CRARY,fn*District Judge.
PER CURIAM:
[2] Mardesich instituted a personal injury suit under 46 U.S.C. § 688 (the Jones Act) and general maritime law. After a nonjury 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 exercisePage 849discretion 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.

[3] 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.

[4] The Court of Appeals for the Second Circuit has adopted a rather stringent rule, holding that "[u]ntimely 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 showingbeyondmere inadvertence is sufficient to justify relief."See Noonan v.Cunard Steamship Co.,375 F.2d 69, 70 (2nd Cir. 1967) (Emphasis in original).

[5] 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.SeeRutledge 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).

[6] AFFIRMED.
  1. The Honorable E. Avery Crary, Senior United States District Judge, Central District of California, sitting by designation. ↩