White v. McGinnis

• Decision Date: 16 May 1990
• Docket Number: No. 86-2208,86-2208
• Citation: 903 F.2d 699
• Parties: , 16 Fed.R.Serv.3d 369 Edward Allen WHITE, Plaintiff/Appellant, v. Wayne McGINNIS, Defendant/Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 699

903 F.2d 699

58 USLW 2694, 16 Fed.R.Serv.3d 369

Edward Allen WHITE, Plaintiff/Appellant, v. Wayne McGINNIS, Defendant/Appellee.

No. 86-2208.

United States Court of Appeals Ninth Circuit.

Argued En Banc and Submitted Oct. 12, 1989.

Decided May 16, 1990.

John R. Hannah, Meyer, Hendricks, Victor, Osborn & Maledon, Phoenix, Ariz., for plaintiff/appellant.

Thomas J. Dennis, Asst. Atty. Gen., Phoenix, Ariz., for defendant/appellee.

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

Before GOODWIN, Chief Judge, BROWNING, WALLACE, HUG, SCHROEDER, FLETCHER, ALARCON, HALL, BRUNETTI, KOZINSKI, and FERNANDEZ, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

This is a section 1983 action involving the interpretation of Rules 38(d) and 39(a) of the Federal Rules of Civil Procedure. We took this case en banc to reconsider this circuit's literal approach to those rules in Palmer v. United States, 652 F.2d 893 (9th Cir.1981). We now overrule Palmer and hold that knowing participation in a bench trial without objection constitutes waiver of a timely jury demand.

I

On June 11, 1984, appellant Edward Allen White, an Arizona State Prison inmate, filed a complaint under 42 U.S.C. Sec. 1983, alleging that appellee Wayne McGinnis, an Arizona State Department of Corrections employee, violated his eighth amendment rights by assaulting him during a cellblock search in April, 1984. ¹ Appellant made a timely jury trial demand, but the court notified the parties on August 6, 1985, that the case was set for a bench trial on January 21, 1986. ² Appellant never brought his prior jury demand to the district court's attention during the five and one-half month period between the bench trial notice and the trial. The two-day trial began on January 22, 1986, and the court, sitting without a jury, entered judgment for appellee on January 27, 1986. Appellant sat through the entire bench trial and never once objected to the absence of a jury while his counsel vigorously argued his case to the judge. Nor did appellant notify the court of its mistake before it entered judgment against him. Nor did he file a motion for a new trial after judgment. Nonetheless, appellant asks us to reverse the district court's judgment in appellee's favor and remand for a jury trial. ³

Appellant argues that this court's decision in Palmer v. United States, 652 F.2d 893 (1981) compels reversal of the district judge's determination and remand for a jury trial. ⁴ For the reasons set forth below, we overrule Palmer and affirm.

II

A

The plaintiff in Palmer brought suit against the government pursuant to the Federal Tort Claims Act, 28 U.S.C. Sec. 1346(b) (1976). The government impleaded Donald Fisher as a third-party defendant, alleging that Fisher contributed to plaintiff's injuries. Both the plaintiff and Fisher made timely jury trial demands, but the court's July 17, 1978, pretrial conference order failed to set the case for a jury trial. A bench trial began on November 29, 1978, and the court subsequently entered judgment in plaintiff's favor, finding Fisher responsible for 70% of the plaintiff's damages. Fisher failed to object at any time in the trial court to a bench trial. The court entered judgment in the government's favor on its indemnity action against Fisher, who appealed.

In Palmer this court held that the district court erred by denying Fisher a jury trial on the government's claim. After concluding that the government's claim against Fisher warranted a jury trial and that Fisher's jury demand was timely made, we observed that the record was completely silent on the issue of a jury trial and consequently held that "a party's acquiescence to the district court's maintenance of a bench trial, without more, is insufficient to establish a withdrawal of a jury demand." 652 F.2d at 896. We noted that the "precise terms" of Federal Rules of Civil Procedure 38(d) and 39(a) require an oral or written stipulation by the parties withdrawing the jury trial demand. Id. ⁵

Nonetheless, we stopped short of holding that a formal stipulation was the exclusive mechanism for the parties to waive a prior jury trial demand. We concluded that "[c]onduct of the parties that evinces consent and appears on the record is sufficient to constitute a proper withdrawal and waiver." Id. Because the record in that case was completely silent on the matter, this court found no waiver.

B

Subsequent decisions in this circuit have studiously avoided Palmer's literal approach. In Reid Bros. Logging Co. v. Ketchikan Pulp Co., 699 F.2d 1292 (9th Cir.), cert. denied, 464 U.S. 916, 104 S.Ct. 279, 78 L.Ed.2d 259 (1983), we expressly rejected a formalistic ⁶ interpretation of the rules. The appellant, one of two defendants, had repeatedly attempted to defeat the plaintiff's jury request in the district court. After the request for jury trial was granted, the plaintiff waived its jury demand in hopes of obtaining an earlier trial date. The other defendant consented to the waiver; the appellant did not consent, and demanded a jury trial. The district court granted plaintiff's motion to strike appellant's demand. Id. at 1304.

The appellant argued on appeal that its refusal to provide the consent required by Rule 39(a) entitled it to a jury trial under Rule 38(d). We declined to apply Rule 38(d) "in such a formalistic manner," noting that given the conduct of the appellant, "a literal reading of Rule 38(d) would act as an instrument of delay and frustrate the purposes of the Federal Rules of Civil Procedure." Id. at 1305. This court emphasized the guilding role of Rule 1, which states that the Federal Rules of Civil Procedure should " 'be construed to secure the just, speedy, and inexpensive determination of every action.' " Id. (quoting Rule 1).

                This approach contrasts sharply with that in Palmer, which rigidly relied upon the "precise terms of [Rules] 38(d) and 39(a)."    652 F.2d at 896
                

More recently, in Pope v. Savings Bank of Puget Sound, 850 F.2d 1345 (9th Cir.1988), we distinguished the Palmer decision on the basis that the appellant's conduct in that case evinced "much more than silence." Id. at 1355. But in a sharp break with Palmer 's emphasis on literal compliance with Rule 39(a), in Pope we failed even to discuss the necessity of a stipulation withdrawing a jury demand, and instead cited Palmer solely for the proposition that conduct can evince consent to withdrawal and waiver. Id. The begrudging admission in Palmer that in limited circumstances a formal stipulation was unnecessary thus became Palmer 's central teaching in Pope.

The appellant in Pope had informed the court below that he had rested "the first part of the case and not the part of the case which is to be tried to the Court on the foreclosure action." Id. at 1354 (footnote omitted). Soon thereafter, the trial judge informed counsel that he would discharge the jury before lunch, and did so. After the lunch recess, the appellant informed the trial court that the jury had been improperly discharged, and requested that it be reconvened. The trial judge refused, and we affirmed on appeal.

In Pope this court correctly found that the appellant's statement prompted the trial court to discharge the jury. This circumstance no doubt provides a factual distinction with the Palmer case. But in Pope this court admitted that the appellant's conduct was not much more than mere acquiescence: "[T]he totality of the circumstances here manifests that the attorney slept on his client's rights." Id. at 1355 n. 29 (emphasis added). Indeed our analysis turned on the appellant's "apparent agreement" with the trial court's announcement, id. at 1355, a virtual synonym for "mere acquiescence."

Our obvious discomfiture in the Reid and Pope decisions with the Palmer decision's rationale and holding is mirrored in other circuits, which have flatly rejected the formalistic approach Palmer embraced. See Royal American Mgrs., Inc. v. IRC Holding Corp., 885 F.2d 1011, 1018 (2d Cir.1989); Lovelace v. Dall, 820 F.2d 223, 227-29 (7th Cir.1987) (per curiam); United States v. 1966 Beechcraft Aircraft Model King Air, 777 F.2d 947, 950-51 (4th Cir.1985); Allen v. Barnes Hosp., 721 F.2d 643, 644 (8th Cir.1983); Southland Reship, Inc. v. Flegel, 534 F.2d 639, 643-45 (5th Cir.1976); Wool v. Real Estate Exch., 179 F.2d 62, 63 (D.C.Cir.1949) (per curiam). ⁷ See generally 9 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2321, at 102 (1971) (parties may waive right to jury trial by conduct or agreement); 5 J. Moore, J.D. Lucas & J. Wicker, Moore's Federal Practice p 39.03, at 39-9 (waiver may be Significantly, while Reid and Pope distanced themselves from Palmer, decisions in the Fourth and Second Circuits weakened its foundation. Specifically, all three decisions on which the Palmer majority relied for its rigid reading of Rule 39(a), see id. at 896 (citing Millner v. Norfolk & Western Railway Co., 643 F.2d 1005, 1011 & n. 1 (4th Cir.1981); Rosen v. Dick, 639 F.2d 82, 90 (2d Cir 1980); DeGioia v. United States Lines Co., 304 F.2d 421, 424 n. 1 (2d Cir.1962)), have been narrowly circumscribed within their own circuits. See 1966 Beechcraft, 777 F.2d at 951 (limiting Millner to cases in which litigants lack notice that court is deciding dispositive issues of fact); Royal American Mgrs., 885 F.2d at 1018-19 (distinguishing DeGioia as case tried before jury). ⁸

inferred from conduct of parties or their counsel).

III

Finding Palmer thus weakened and isolated, we hold that it is no longer the law of this circuit. We join our sister circuits today by holding that knowing participation in a bench trial without objection is sufficient to constitute a jury waiver.

Rule 39(a) is designed to protect against some careless statement or ambiguous document being held to be a waiver when one was not intended. Where the parties have clearly consented to a bench trial, we have previously followed the general trend not to...