641 F.2d 808 (9th Cir. 1981), 79-4078, Pradier v. Elespuru

Docket Nº79-4078.
Citation641 F.2d 808
Party Name1st Lt. Jerome M. PRADIER, Plaintiff-Appellee, v. Jose Martin ELESPURU and Luis Basterrechea d/b/a Basterrechea Distributing Company, Defendants-Appellants.
Case DateApril 09, 1981
CourtUnited States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 808

641 F.2d 808 (9th Cir. 1981)

1st Lt. Jerome M. PRADIER, Plaintiff-Appellee,

v.

Jose Martin ELESPURU and Luis Basterrechea d/b/a

Basterrechea Distributing Company, Defendants-Appellants.

No. 79-4078.

United States Court of Appeals, Ninth Circuit

April 9, 1981

Argued and Submitted Nov. 5, 1980.

Page 809

David P. Templeton, Martin, Bischoff, Templeton, Biggs & Ericsson, Portland, Or., for defendants-appellants.

George H. Corey, Corey, Byler & Rew, Pendleton, Or., for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon.

Before HUG and REINHARDT, Circuit Judges, and SMITH [*], District Judge.

HUG, Circuit Judge:

Defendants appeal from the district court's verdict for plaintiff in this personal injury action arising from an automobile accident in Oregon. Jurisdiction was based on diversity of citizenship. Appellants contend that the district court erred in denying a jury trial, and that the evidence did not support certain elements of the trial court's damage award. We reverse and remand for a new trial by jury, and therefore do not reach the damage question.

Plaintiff requested a jury trial in the first and last sentences of the body of his complaint, but did not include the words "Demand for Jury Trial" or their equivalent in the caption. Plaintiff's attorney also checked the box indicated for a jury demand on the civil cover sheet normally filed at the commencement of an action. Defendants' answer initially made no reference to a jury trial, but over a month later an amended answer was filed that included a jury demand in the caption. Plaintiff consented to the filing of the amended answer and jury demand. Subsequently, in conjunction with defendants, plaintiff submitted a pretrial order stating that the jury trial demand was timely.

At the commencement of the trial over a year later, the district court concluded that the demand did not comply with the local rules of the United States District Court for the District of Oregon and refused to grant a jury trial. The court permitted only an advisory jury, whose findings were not binding upon the court.

The advisory jury returned a unanimous special verdict finding the defendants 66 2/3 percent negligent, the plaintiff 33 1/3 percent negligent and finding plaintiff's damages to be $3,548.45. The district judge denied a motion for judgment on the advisory verdict and held that defendants were 90 percent negligent, that plaintiff was 10 percent negligent and that plaintiff's damages were $32,568.45. He thereupon entered judgment for $29,311.61, which is 90 percent of the $32,568.45.

Rule 38(a) of the Federal Rules of Civil Procedure provides that the right to a jury

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trial, as guaranteed by the seventh amendment to the Constitution, is to be preserved inviolate. Rule 38(b) provides for the manner in which a demand...

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