Wertz v. Grubbs
| Decision Date | 05 January 1995 |
| Docket Number | No. 93-2355,93-2355 |
| Citation | 45 F.3d 428 |
| Parties | NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. George WERTZ, Personal Representative and Administrator of the Estate of Marie WERTZ, Plaintiff-Appellant, Earl A. GRUBBS, M.D., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Richard Joshua Cromwell, McGUIRE, WOODS, BATTLE & BOOTHE, Norfolk, VA, for Appellee.
Before WIDENER, WILKINSON and MICHAEL, Circuit Judges.
George Wertz sued Dr. Earl A. Grubbs, alleging medical malpractice and the wrongful death of Wertz's wife. The action was removed from the Circuit Court for the City of Portsmouth, Virginia, to the United States District Court for the Eastern District of Virginia where it was tried to the court without a jury. The district court found against Wertz and entered judgment in favor of Dr. Grubbs. On appeal Wertz says that the district court erred (1) by denying him a jury trial, (2) by applying the wrong standard of care and finding that Dr. Grubbs did not breach it, and (3) by admitting impermissible testimony from two doctors testifying as experts for Dr. Grubbs. We affirm for the reasons that follow.
The jury trial issue received considerable attention at oral argument, and we deal with that issue first, beginning with some procedural history.
Wertz, a Virginia citizen, commenced this action on October 14, 1991, by filing a motion for judgment (complaint) in the Circuit Court for the City of Portsmouth, Virginia. The motion for judgment did not contain a jury demand, and Wertz says that one was not required. Indeed, Wertz contends that under both Virginia law and local custom or practice in Portsmouth Circuit Court a jury could have been demanded up to the day of trial.
Dr. Grubbs was a Georgia citizen when this action was filed, and on November 26, 1991, he removed it (on diversity grounds) to the United States District Court for the Eastern District of Virginia. On the same day, Dr. Grubbs served his notice of removal and grounds of defense (answer) on Wertz by mail.
Wertz did not demand a jury trial in Portsmouth Circuit Court prior to removal. On January 16, 1992, at the initial pretrial conference in the district court, Wertz's counsel orally requested a jury trial. Dr. Grubbs' counsel objected on the ground that the request was untimely. The request and objection were noted in the Order On Initial Pretrial Conference, which was issued by a district judge. This order directed counsel to file briefs on the jury trial issue.
On January 21, 1992, five days after the initial pretrial conference, Wertz filed a written demand for a jury trial. The objection of Dr. Grubbs' counsel was noted at the bottom of this document, and the words "subject to defect" were handwritten under the filing stamp in the top right-hand corner. 1
On February 10, 1992, Wertz submitted his "Brief In Support Of Plaintiff's Motion [sic] For A Jury Trial." No separate motion document was ever filed. In the brief Wertz pressed his oral request for a jury made at the January 16, 1992, pretrial conference and his written demand filed on January 21, 1992. At the very end of the brief, Wertz did say he "moves [the] Court to allow a jury trial." "Defendant's Brief In Opposition To Plaintiff's Demand For Jury Trial" was submitted on February 24, 1992 (emphasis added).
The jury trial issue was referred to a magistrate judge who held a hearing on March 9, 1992. A docket entry of that same date contains the following record of the hearing:
Minute entry: WTP, USMJ. Gloria Means, Ct. Reporter. Counsel present. Matter came on re plaintiff's motion for demand for jury. Argument. Court overrules motion.
The magistrate judge did not enter a written order, and we do not have a transcript of this hearing. Wertz did not file any objection to the magistrate judge's ruling denying a jury trial, nor did Wertz seek reconsideration or review of the ruling before the district judge.
The trial, initially set for July 1, 1992, was continued because a statute of limitations issue was certified to the Supreme Court of Virginia.
At argument before us Wertz's counsel said that she orally requested a jury trial at the final pretrial conference before the district judge on May 14, 1993. Dr. Grubbs' counsel agreed that there was a very brief discussion of the jury matter at the final pretrial conference. In any event, Wertz was not given a jury. The bench trial began on May 17, 1993, over eighteen months after removal.
Dr. Grubbs contends that we cannot reach the merits of Wertz's jury trial argument because the issue was not preserved for appeal. Dr. Grubbs says the issue is waived because Wertz did not seek reconsideration of the magistrate judge's ruling before the district judge as required by 28 U.S.C. Sec. 636. As we explain below, to the extent Wertz claims he made a timely jury demand as of right under Fed.R.Civ.P. 81(c), the issue has not been waived and we consider it. However, to the extent Wertz seeks to appeal the denial of discretionary relief from the consequences of waiving the right to a jury trial, the issue has not been preserved.
The thrust of Wertz's jury trial argument below and here is based on Fed.R.Civ.P. Rule 81(c). Wertz's argument is that because Rule 81(c) adopts Virginia law, he had a right to demand a jury in this case at any time up to trial. Wertz filed a written demand for a jury trial in the district court on January 21, 1992. We therefore conclude that the issue of whether a timely jury demand was made under Rule 81(c) has been preserved for appeal.
Rule 81(c) provides in pertinent part:
If at the time of removal all necessary pleadings have been served, a party entitled to trial by jury under Rule 38 shall be accorded it, if the party's demand therefor is served within 10 days after the petition for removal is filed if the party is the petitioner, or if not the petitioner within 10 days after service on the party of the notice of filing the petition. A party who, prior to removal, has made an express demand for trial by jury in accordance with state law, need not make a demand after removal. If state law applicable in the court from which the case is removed does not require the parties to make express demands in order to claim trial by jury, they need not make demands after removal unless the court directs that they do so within a specified time if they desire to claim trial by jury.
Fed.R.Civ.P. 81(c) (emphasis added).
Rule 81(c) refers to state law on jury demand requirements, and Section 8.01.-336(B) of the Code of Virginia Annotated (1992 Repl.Vol.) provides as follows:
Waiver of Jury Trial.--In any action at law in which the recovery sought is greater than $100, exclusive of interest, unless one of the parties demand that the case ... be tried by a jury ... the whole matter of law and fact may be heard and judgment given by the court.
Relying on Rule 81(c)'s reference to "state law" and pointing out that the Virginia Code does not impose a time limit for a jury demand, Wertz argues that his "request for a jury in this removed case should not be considered untimely." Appellant's Br. at 34-35. Wertz, however, misreads the exception clause in Rule 81(c). The exception clause is very narrow: it dispenses with the jury demand only when the case would have been set automatically (without demand) for jury trial under state law. Cascone v. Ortho Pharm. Corp., 702 F.2d 389, 391 (2d Cir.1983); Keatley v. Food Lion, Inc., 715 F.Supp. 1335, 1337-8 (E.D. Va.1989). The Virginia statute plainly requires a demand. Blevins v. Lovelace's Executor, 129 S.E. 247, 248 (Va.1925); accord Keatley, 715 F.Supp. at 1337-8. Accordingly, Rule 81(c)'s exception clause does not apply in this case. 2 Dr. Grubbs served his notice of removal and grounds of defense (answer) on Wertz by mail on November 26, 1991. Wertz had 13 days--10 days under Rule 81(c) plus 3 additional days under Rule 6(e) because of mail service--to serve a written demand for a jury trial. Wertz's written demand of January 21, 1992, was untimely, and he therefore waived a jury trial as of right. 3
We turn now to whether Wertz preserved for appeal any argument that he was improperly denied discretionary relief from his failure to make a timely jury demand.
Dr. Grubbs correctly points out that Wertz never filed a Rule 39(b) motion. If such a motion is made, a district court may grant a jury trial "notwithstanding the failure of a party to demand a jury in an action in which such demand might have been made of right...." Fed.R.Civ.P. 39(b). 4
Notwithstanding Wertz's failure to invoke Rule 39(b) specifically, he did (in his brief which was referred to the magistrate judge) ask the court to "invoke its discretion, because no circumstances militate against a trial by jury." Brief in Support of Plaintiff's Motion for a Jury Trial at 4, Wertz v. Grubbs, No. 2:91CV811 (E.D. Va., submitted Feb. 10, 1992). In that brief Wertz discussed, with citation to cases, the factors courts consider "in determining whether to exercise the discretion to allow a jury trial notwithstanding unseasonable demand." Id. at 5-7. We will therefore assume that Wertz's brief below was an adequate application for discretionary relief under Fed.R.Civ.P. 39(b). 5
After a hearing on March 9, 1992, the magistrate judge denied Wertz's "motion for demand for jury." Dr. Grubbs...
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