Wednesday, August 11, 2004

Appealing a Trial Denial - New Jersey Law Journal

Copyright 2004 ALM Properties, Inc. All Rights Reserved.
New Jersey Law Journal

February 20, 2004

LENGTH: 1589 words

HEADLINE: Appealing a Trial Denial;
Weigh the three options carefully, because the ramifications
of each are different and the consequences can be significant

BYLINE: By Aaron S. Bayer; Bayer is chairman of the appellate practice group at Wiggin & Dana of New Haven, Conn.

BODY:
What should you do when a demand for a jury trial in a federal civil case is denied? Surprisingly, there is no simple answer to this question, and the standards governing appeals from denials of civil jury trials are the subject of a circuit split that the U.S. Supreme Court has declined to resolve.

Litigants denied a civil jury trial by a federal district court have at least three options: [1] petitioning the court of appeals for a writ of mandamus; [2] pursuing a permissive interlocutory appeal under 28 U.S.C. 1292[b]; or [3] appealing the denial of a jury trial after final judgment.

Writ of Mandamus

In general, a writ of mandamus is used only in very limited circumstances, typically to order a lower court to perform a nondiscretionary act or to reverse actions that "amount ... to a judicial 'usurpation of power.'" Hahnemann Univ. Hosp. v. Edgar, 74 F.3d 456 [3d Cir. 1996]. The writ of mandamus, however, has found a special niche in protecting the right to a jury trial.

As long ago as 1918, the U.S. Supreme Court recognized mandamus as the appropriate vehicle to cure erroneous denials of a civil jury trial. In re Simons, 247 U.S. 231 [1918]. The Court based its conclusion on judicial economy -- avoiding duplicative bench and jury trials -- and the convenience of prejudgment appeal to litigants.

This reasoning survived over the ensuing decades, and in 1959, the Court affirmed that "[w]hatever differences of opinion there may be in other types of cases ... the right to grant mandamus to require jury trial where it [has] been improperly denied is settled." Beacon Theatres Inc. v. Westover, 359 U.S. 500 [1959]. Several years later, the Court reiterated that courts of appeals have the "responsibility ... to grant mandamus where necessary to protect the constitutional right to trial by jury." Dairy Queen Inc. v. Wood, 369 U.S. 469 [1962].

The Supreme Court has not, however, resolved a disagreement over the proper standard for issuance of mandamus when a jury trial denial is challenged. In other contexts, a writ of mandamus is an extraordinary remedy, which requires a high threshold showing that the petitioner has no other adequate means to secure the requested relief and has a "'clear and indisputable'" right to the relief. Mallard v. United States Dist. Ct., 490 U.S. 296 [1989].

While some circuits have not squarely addressed the issue, several have taken the Supreme Court's decisions in Dairy Queen and Beacon Theatres to mean that the writ should issue if a de novo review shows that the district court erred in denying a jury trial, without the extraordinary showing usually required for mandamus. See, e.g., Maldonado v. Flynn, 671 F.2d 729 [2d Cir. 1982].

The Ninth U.S. Circuit Court of Appeals stated the principle plainly in Wilmington Trust v. United States Dist. Ct., 934 F.2d 1026 [9th Cir. 1991]: "The right to a jury trial ... has occupied an exceptional place in the history of the law of federal mandamus permitting a writ to issue although the petitioner is unable to show a 'clear and indisputable' right."

Mandamus Standards

The Seventh Circuit, however, has insisted that the usual high-threshold standards for mandamus be met in cases challenging a jury trial denial. In First Nat'l Bank of Waukesha v. Warren, 796 F.2d 999 [1986], the court noted that jury trial denials can generally be corrected on appeal of a final judgment and that review on a mandamus petition entails "all of the vices of an interlocutory appeal."

The circuit maintained that if principles of judicial economy support more lenient mandamus standards in the jury trial context, they support interlocutory review of other pretrial and trial errors as well.

The court ultimately read Beacon Theatres and Dairy Queen as authorizing mandamus "only when a clear right to a jury trial could not be vindicated on appeal from the final judgment."

The Supreme Court has passed on the opportunity to resolve this issue, denying certiorari in a Seventh Circuit case that applied the First National Bank standard in rejecting mandamus relief from a jury trial denial. Kamen v. Nordberg, 485 U.S. 939 [1988]. Justice Byron White dissented, noting that First National Bank conflicts with other courts of appeals decisions holding that "a proper petition for mandamus in these circumstances obliges the Court of Appeals to address the merits of the claimed right to a jury trial" and that the Seventh Circuit rule "may also be inconsistent" with Beacon Theatres.

In circuits that do not apply the usual heightened mandamus standards in reviewing jury trial denials, the appellate court's decision on the petition will become the law of the case, and appeal of the issue after final judgment will be barred. This is obviously an important consideration in determining whether to pursue a mandamus petition.

Law of the case, however, applies only to issues actually decided on the merits, and thus would not apply to an order denying a petition based on the traditional heightened mandamus standards. See Kennedy v. Lubar, 273 F.3d 1293 [10th Cir. 2001], and Moore v. Sun Oil Co., 636 F.2d 154 [6th Cir. 1980].

Thus, in any court following the Seventh Circuit's approach in First National Bank, a denial of mandamus based on the heightened threshold showing would not bar review of the jury trial issue on appeal from final judgment. A petitioner in the Seventh Circuit, therefore, may get two bites at the apple, ironically increasing the incentive to petition for mandamus in that circuit.

The Section 1292[b] Option

As an alternative to mandamus, counsel can move for certification of a jury trial denial for interlocutory appeal under 28 U.S.C. 1292[b]. Section 1292[b] requires that there be "substantial ground for difference of opinion" over a "controlling question of law" and that an immediate appeal "may materially advance the ultimate termination of the litigation." The availability of such an appeal is subject to the discretion of both the district court and the court of appeals.

Section 1292[b] has been used to permit early review of jury trial rulings, especially when they raise an issue of first impression. District courts may also certify jury trial issues for appeal under §[1292[b] sua sponte.

In some cases, after certifying a jury trial denial for immediate appeal, district courts have required the objecting party to pursue certification in the court of appeals or be deemed to have waived the right to a jury trial.

In deciding whether to seek §[1292[b] certification, counsel should consider whether the trial court's ruling raises an issue of first impression or a legal issue over which there is genuine debate. Counsel should also consider how the trial judge may react to the litigant's seeking mandamus without first having provided the judge the opportunity to certify the question for appeal under §[1292[b].

Counsel must remember that, if certification is granted, the ruling of the court of appeals on the merits of the jury trial issue will become the law of the case and preclude an appeal of this issue after final judgment.

There is no requirement that one seek interlocutory review of a jury trial denial through mandamus or §[1292[b] in order to preserve the issue for review in a post-judgment appeal. On appeal from final judgment, appellate courts review the district court's denial of a jury trial de novo.

Erroneous rulings denying a jury trial are deemed to be harmless error only if a directed verdict for the opposing side would have been warranted -- that is, if the matter should never have gone to the jury. See, e.g., Crocker v. Piedmont Aviation Inc., 49 F.3d 735 [D.C. Cir. 1995].

Counsel should become familiar with the options for seeking review of a jury trial denial and the consequences that flow from pursuing each option in their circuit.

If a jury trial is critically important, for trial strategy or for leveraging a settlement, seeking interlocutory review may outweigh the risk of an adverse interlocutory ruling precluding appeal of the issue from final judgment. If a jury trial is desirable but not essential, it may make sense to wait until final judgment to appeal the issue.

If the litigant prevails in the bench trial, an appeal is unnecessary; if he loses, and a jury trial was improperly denied -- and if the case is strong enough to survive a directed verdict -- a new jury trial will be ordered on appeal.

On the other hand, this strategy entails the risk and expense of two trials. A court of appeals may also be unreceptive to an appellant who has clearly held the jury trial issue in his pocket while he waited to see how he fared in the bench trial.

Given these legal and strategic considerations, trial and appellate counsel should consult as soon as a motion for jury trial is denied and carefully weigh the options for appealing the issue.

LexisNexis(TM) Academic - Document (Demand for Jury Trial)

LexisNexis(TM) Academic - Document

Copyright 2004 ALM Properties, Inc. All Rights Reserved.
New York Law Journal

April 26, 2004, Monday

SECTION: DECISIONS; Vol. 79; Pg. 31

LENGTH: 352 words

HEADLINE: Surrogate's Court Decision;
Surrogate Feinberg

BODY:
ESTATE OF MILDRED V. STRAND Respondent's motion to grant their demand for a jury trial pursuant to CPLR §[4102[e] is denied.

A demand for a jury trial is required to be made within six days after being served with an answer or objections, [SCPA §[502[2][a]].

The Surrogate's Court may relieve a party of a failure to demand a jury and will look to the criteria under CPLR §[4102[e] which permits a late jury demand "if no undue prejudice to the rights of another party would result." Respondent filed a verified answer on or about January 10, 2001. Petitioner filed an answer to respondent's counterclaims on or about March 23, 2001 and petitioner served respondent with an amended verified petition to add an additional party on or about July 7, 2003.

Respondent states that the answer was drafted by a former associate in the firm who was admitted to the New York State Bar less than a year before drafting the answer.

The court is mindful of case law that allowed the late filing of a jury demand when it was the result of lack of familiarity with procedure and inexperience of the attorney's assistant, who had been admitted to the Bar for only two years, [In re Beatty's Will, 205 Misc 962].

However, only if no prejudice can be shown will the court utilize CPLR §[4102[e] to permit a late demand as in Matter of Mirsky, 81 Misc2d 9, where the objectant was excused from filing a late demand where the delay was short and the other party not prejudiced, [Matter of Osgood, NYLJ, Dec 2, 1992, p. 26 [col. 4].

Over three years have past since the filing of the answer and this motion was brought on the eve of trial after discovery has been completed .

Accordingly, the respondent's demand for a jury trial is denied.

As a note of issue and certificate of readiness have been filed, this matter is set down for trial on May 11, 2004 and May 12, 2004 at the Surrogate's Court, 2 Johnson Street, Brooklyn, New York 11201 at 10:30 A.M.

This constitutes the decision and order of the court.

LexisNexis(TM) Academic - Document (Demand for Jury Trial)

LexisNexis(TM) Academic - Document

Copyright 2004 ALM Properties, Inc. All Rights Reserved.
New York Law Journal

April 26, 2004, Monday

SECTION: DECISIONS; Vol. 79; Pg. 31

LENGTH: 352 words

HEADLINE: Surrogate's Court Decision;
Surrogate Feinberg

BODY:
ESTATE OF MILDRED V. STRAND Respondent's motion to grant their demand for a jury trial pursuant to CPLR §[4102[e] is denied.

A demand for a jury trial is required to be made within six days after being served with an answer or objections, [SCPA §[502[2][a]].

The Surrogate's Court may relieve a party of a failure to demand a jury and will look to the criteria under CPLR §[4102[e] which permits a late jury demand "if no undue prejudice to the rights of another party would result." Respondent filed a verified answer on or about January 10, 2001. Petitioner filed an answer to respondent's counterclaims on or about March 23, 2001 and petitioner served respondent with an amended verified petition to add an additional party on or about July 7, 2003.

Respondent states that the answer was drafted by a former associate in the firm who was admitted to the New York State Bar less than a year before drafting the answer.

The court is mindful of case law that allowed the late filing of a jury demand when it was the result of lack of familiarity with procedure and inexperience of the attorney's assistant, who had been admitted to the Bar for only two years, [In re Beatty's Will, 205 Misc 962].

However, only if no prejudice can be shown will the court utilize CPLR §[4102[e] to permit a late demand as in Matter of Mirsky, 81 Misc2d 9, where the objectant was excused from filing a late demand where the delay was short and the other party not prejudiced, [Matter of Osgood, NYLJ, Dec 2, 1992, p. 26 [col. 4].

Over three years have past since the filing of the answer and this motion was brought on the eve of trial after discovery has been completed .

Accordingly, the respondent's demand for a jury trial is denied.

As a note of issue and certificate of readiness have been filed, this matter is set down for trial on May 11, 2004 and May 12, 2004 at the Surrogate's Court, 2 Johnson Street, Brooklyn, New York 11201 at 10:30 A.M.

This constitutes the decision and order of the court.

LOAD-DATE: May 2, 2004

FRCP - Rule 38 (LII 2004 ed.)

FRCP - Rule 38 (LII 2004 ed.)
Jury Trial of Right

Central District of California U.S.D.C.Local Rules
Rule Name:
Chapter:
Last Revised:
F.R.Civ.P. 38. Jury Trial of Right
Chapter I: Local Civil Rules, Integrated with Titles of Federal Rules of Civil Procedure
12/01/2003
F.R.Civ.P. 38. Jury Trial of Right
L.R. 38-1 Jury Trial Demand - Included in Pleading . If the demand for jury trial is included in a pleading, it shall be set forth at the end thereof and be signed by the attorney for the party making the demand. The caption of such a pleading shall also contain the following: “DEMAND FOR JURY TRIAL.”
L.R. 38-2 Jury Trial Demand - Removed Cases Where Jury Trial Not Demanded Prior to Removal . In all such cases removed to this Court which are not at issue at the time of removal, the demand for jury trial must be filed within ten (10) days after service of the last responsive pleading addressed to an issue triable by right by a jury. If the matter already is at issue at the time of removal, the demand must be filed within ten (10) days after the filing of the notice of removal if the demand is made by the removing party, and within ten (10) days after service of filing of the notice of removal if the demand is made by a party other than the removing party.
L.R. 38-3 Jury Trial Demand - Marking Civil Cover Sheet Insufficient . Marking the Civil Cover Sheet shall not be deemed a sufficient demand to comply with F.R.Civ.P. 38(b) or L.R. 38-1 and 38-2.
L.R. 38-4 Exceptions . The provisions of L.R. 38-3 shall not prevent the use of printed forms provided by the Clerk or by the Administrative Office of the United States Courts.

LSC: Laws Affecting LSC: Civil Forfeiture Reform Act

LSC: Laws Affecting LSC: Civil Forfeiture Reform Act