Tushner v. U.S. Dist. Court for the Cent. Dist. of California
| Citation | 829 F.2d 853 |
| Decision Date | 30 July 1987 |
| Docket Number | No. 87-7247,87-7247 |
| Parties | Irving S. TUSHNER and Union Financial Corporation, Petitioners, v. UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, Respondents, and EMPIRE OF AMERICA, FSA, a Federal Savings Association, Real Party in Interest. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Page 853
v.
UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF
CALIFORNIA, Respondents,
and
EMPIRE OF AMERICA, FSA, a Federal Savings Association, Real
Party in Interest.
Ninth Circuit.
Decided Oct. 5, 1987.
Page 854
A. Barry Cappello, Santa Barbara, Cal., for petitioners.
Marc Marmaro, Los Angeles, Cal., for real parties in interest.
Appeal from the United States District Court for the Central District of California.
Before BROWNING, KENNEDY and LEAVY, Circuit Judges.
KENNEDY, Circuit Judge:
This case presents a novel question of time calculation under the Federal Rules of Civil Procedure. In calculating the ten-day period for filing a jury demand in a removed case, Fed.R.Civ.P. 81(c), the plaintiffs in the district court excluded intervening Saturdays, Sundays, and legal holidays. Such exclusions are permitted in calculating any period of less than eleven days, Fed.R.Civ.P. 6(a), and, the plaintiffs reasoned, this grace period necessarily applies to the ten-day jury demand requirement of Federal Rules of Civil Procedure 81(c).
The trial judge thought there was a problem, however. The plaintiffs had served their demand by mail. Under Federal Rule of Civil Procedure 6(e), service by mail enlarges a prescribed period by three days. As ten plus three equals thirteen, the trial court ruled that plaintiffs were not entitled to the benefits of the less-than-eleven-day rule. In other words, the trial court ruled that the three-day grace period for service by mail may operate to give a party less time, not more. We disagree. 1
Page 855
Briefly stated, the specifics of the case were as follows: Union Financial Corporation and Irving Tushner commenced a state court action against Empire of America on July 7, 1986. On August 8, 1986, Empire removed the case to federal court, and on August 11 it served an answer to the complaint by mail. On August 26, 1986, Union and Tushner filed a demand for jury trial. 2
After a status conference, the district court ruled the jury trial demand untimely. As we have noted, it reasoned that the three days added for service by mail increased the prescribed period for jury demands to thirteen days, thus rendering the less-than-eleven-day rule, and its excluded days, inapplicable.
We rule that it is the prescribed ten-day period for jury demands under Rule 81(c) that triggers the exclusion provision, and that intervening weekends and holidays should have been excluded, as provided in Rule 6(a). The demand was timely.
The district court plaintiffs become petitioners here, as they seek a writ of mandamus to require the district court to order a jury trial. We grant mandamus where necessary to protect the constitutional right to trial by jury. See Dairy Queen, Inc. v. Wood, 369 U.S. 469, 472, 82 S.Ct. 894, 897, 8 L.Ed.2d 44 (1962); Owens-Illinois, Inc. v. United States Dist. Court, 698 F.2d 967, 969 (9th Cir.1983); Myers v. United States Dist. Court, 620 F.2d 741, 744 (9th Cir.1980). If the plaintiffs are entitled to a jury trial, their right to the writ is clear. Owens-Illinois, Inc., 698 F.2d at 969.
We find the petitioners' position to be the better-reasoned one. It is logical to...
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...right to trial by jury. If the plaintiffs are entitled to a jury trial, their right to the writ is clear.” Tushner v. U.S. Dist. Court, 829 F.2d 853, 855 (9th Cir.1987) (Kennedy, J.) (citations omitted); see also Mondor, 910 F.2d at 585–86 (“While mandamus relief is extraordinary and is ava......
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