Nissan Motor Corp. in U.S.A. v. Burciaga, 92-2124
| Decision Date | 08 December 1992 |
| Docket Number | No. 92-2124,92-2124 |
| Citation | 982 F.2d 408 |
| Parties | NISSAN MOTOR CORPORATION IN U.S.A., et al., Petitioner, v. Juan G. BURCIAGA, District Judge, Respondent, Marina M. Sears, Individually and as Personal Representative of the Estate of Jeffrey Sears, Deceased, Real Party in Interest. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Dennis K. Wallin and Terry M. Word, Albuquerque, NM, for real party in interest.
Before TACHA, BRORBY, and KELLY, Circuit Judges.
Petitioner seeks relief from this court in the form of a writ of mandamus compelling the district court to grant its request for a jury trial. Initially, we note that mandamus is appropriate relief when it is necessary to protect the right to a jury trial. Dairy Queen, Inc. v. Wood, 369 U.S. 469, 472, 82 S.Ct. 894, 897, 8 L.Ed.2d 44 (1962).
No party to the underlying products liability action requested a jury at the outset of the action. In response to the plaintiff's amended complaint and more than two years after the action was filed, petitioner filed a jury demand pursuant to Fed.R.Civ.P. 38(b). In that demand, petitioner alleged that the amended complaint raised new issues triable of right by a jury. See Land v. Roper Corp., 531 F.2d 445, 450 (10th Cir.1976). The district court denied petitioner's request. 1
To establish a right to a trial by jury, the amended complaint must do more than merely raise new theories of recovery based on the same facts as those issues raised in the original complaint. Richardson v. Henry, 902 F.2d 414, 416 (5th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 789, 112 L.Ed.2d 852 (1991). We have reviewed the original complaint and the amended complaint, and we hold that the amended complaint did not raise issues which were not raised in the original complaint. At most, the amended complaint merely asserted new theories of recovery based on the same allegations as contained in the original complaint, i.e., negligent design, manufacture, inspection, and testing. Petitioner, therefore, was not entitled to a jury trial pursuant to Fed.R.Civ.P. 38(b).
Petitioner also filed a motion with the district court pursuant to Fed.R.Civ.P. 39(b), requesting that the district court exercise its discretion under that rule and grant its untimely jury request. Petitioner gives no excuse for its untimely request except to say that, given the nature of the case, it had simply assumed that the plaintiff had requested a jury trial. Petitioner became aware that its assumption was incorrect shortly before the plaintiff filed her amended complaint.
This court has held that, absent strong and compelling reasons to the contrary, a district court should exercise its discretion under Rule 39(b) and grant a jury trial. AMF Tuboscope, Inc. v. Cunningham, 352 F.2d 150, 155 (...
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Lockwood, In re
...regarding the propriety of mandamus to cure a wrongful denial of the right to trial by jury are beyond cavil. Nissan Motor Corp. v. Burciaga, 982 F.2d 408, 408 (10th Cir.1992) ("[M]andamus is appropriate relief when it is necessary to protect the right to a jury trial.") (citing Dairy Queen......
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Baldwin v.United States
...district court did not abuse its discretion in denying relief where the cause was “mere inadvertence”); Nissan Motor Corp. v. Burciaga, 982 F.2d 408, 409 (10th Cir.1992) (per curiam) (stating, “[A]bsent strong and compelling reasons to the contrary, a district court should exercise its disc......
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Dill v. City of Edmond, Okl., s. 97-6110
...to make a timely jury demand results from nothing more than the mere inadvertence of the moving party." Nissan Motor Corp. v. Burciaga, 982 F.2d 408, 409 (10th Cir.1992). Here, Plaintiff offers no excuse for his untimely request for a jury trial, made almost a year and a half after the orig......
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U.S. v. Bd. of County Com'rs of the County of Dona Ana, N.M.
...making the defendant's motion for a jury trial all the more untimely. 1998 WL 568321, at *7.5 Similarly, in Nissan Motor Corp. v. Burciaga, 982 F.2d 408 (10th Cir.1992)(per curiam), the Tenth Circuit decided whether to uphold a jury demand a plaintiff asserted for the first time in an amend......
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Table of Cases
...(E.D. Pa. April 22, 2005), Form 7-48 Nichols v. Stapleton , 877 F.2d 1401, 1403 (9th Cir. 1989), §7:118 Nissan Motor Corp. v. Burciaga , 982 F.2d 408 (10th Cir. 1992), §10:01 Nissho-Lwai Am. Corp. v. Kline , 845 F.2d 1300, 1306 (5th Cir. 1988), §7:103 NLRB v. Sheet Metal Workers Int’l Assoc......
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