White v. McGinnis

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. § 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. 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. 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 appel-lee 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.

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. 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. § 1846(b) (1976). The government implead-ed Donald Fisher as a third-party defendant, alleging that Fisher contributed to plaintiffs 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 plaintiffs favor, finding Fisher responsible for 70% of the plaintiffs 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.

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 “[cjonduct 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 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). See generally 9 C. Wright & A. Miller, Federal Practice and Procedure § 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 1139.03, at 39-9 (waiver may be inferred from conduct of parties or their counsel).

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).

Ill

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 upset an otherwise valid bench trial simply because the letter of Rule 39(a) has not been followed. See Pope, 850 F.2d at 1355; United States v. Missouri River Breaks Hunt Club, 641 F.2d 689, 693 (9th Cir.1981) (judge’s oral statement that parties had waived jury trial deemed sufficient compliance with Rule 39(a)); see generally Sewell, 863 F.2d at 461 (pretrial order not objected to deemed sufficient compliance with Rule 39(a)); Lovelace, 820 F.2d at 227 (citing cases).

The case before us calls for a similar result. A party’s vigorous participation in a bench trial, without so much as a mention of a jury, cannot be presumed the result of mere inadvertence, but can only be ascribed to knowledgeable relinquishment of the prior jury demand. This is especially so where, as here, “the [objecting] party was ‘on notice that the trial court was planning to adjudicate the dispositive issues of fact.’ ” Royal American Managers, 885 F.2d at 1018 (quoting 1966 Beechcraft, 777 F.2d at 951). Under these circumstances, “court judgments should have meaning and effect instead of being a futile exercise that one of the parties will be able to overturn no matter what the result.” Lovelace, 820 F.2d at 228. The appellant chose to argue his case fully before the district judge; it is not unjust to hold him to that commitment.

IV

For these reasons, the judgment of the district court is AFFIRMED.

. Appellant initially proceeded pro se, but retained private counsel who entered an appearance on August 30, 1985.

. Appellee does not dispute that White was entitled to a jury trial on his claims.

. Appellant also argues that he was provided with ineffective assistance of counsel, but a plaintiff in a section 1983 action alleging excessive use of force has no right to effective assistance of counsel. See Nicholson v. Rushen, 767 F.2d 1426, 1427 (9th Cir.1985) (per curiam).

. McGinnis complains that White raised this issue for the first time on appeal. Ordinarily we will not entertain an issue not raised before the district court. Westinghouse Electric Corp. v. Weigel, 426 F.2d 1356, 1357 (9th Cir.1970). However, there are several narrow exceptions to this rule under which we have discretion to hear a new issue. Bolker v. C.I.R., 760 F.2d 1039, 1042 (9th Cir.1985). "We may consider an issue conceded or neglected below if the issue is purely one of law and the pertinent record has been fully developed.” United States v. Gabriel, 625 F.2d 830, 832 (9th Cir.1980). As in Gabriel, we conclude that the issue is purely legal and the facts are fully developed and indeed undisputed. Accordingly, we have discretion to consider this appeal if we choose to do so. In this appeal, we exercise that discretion.

. In using this term, we recognize that there is “scant agreement on what it is for decisions in law ... to be formalistic, except that whatever formalism is, it is not good.” Schauer, Formalism, 97 Yale LJ. 509, 509-10 (1988) (footnote omitted). We use it here to denote reliance on a rule’s canonical language to the exclusion of all else. The negative connotation is unfortunate.

. Although the Sixth Circuit has not faced this issue directly, it has taken a similar stance in Sewell v. Jefferson County Fiscal Court, 863 F.2d 461 (6th Cir.1988), cert. denied, — U.S. -, 110 S.Ct. 75, 107 L.Ed.2d 42 (1989). Sewell properly indorsed a request for jury trial on her complaint alleging race and sex discrimination. After the initial pretrial conference on July 5, 1986, the district court entered an order scheduling the case for a September 23, 1986 jury trial on all but Sewell’s Title VII claims. At the final pretrial conference on September 15, 1986, Sewell’s counsel requested a continuance of the jury trial date. Granting the continuance on September 17, 1986, the trial court removed the case from the jury docket and scheduled it for a bench trial on January 22, 1987. Sewell’s counsel did not object to this order. Id. at 463.

On the day of the trial, Sewell’s counsel asked the court to summon the jury. After referring to the September 17, 1986 pretrial order setting the case for bench trial, the court ruled that plaintiff had waived her right to a jury by failing to timely object to the court's order, and proceeded to try all of Sewell’s claims. Id.

Fully aware that the letter of Federal Rule of Civil Procedure 39(a) had not been followed, the Court of Appeals for the Sixth Circuit affirmed. It relied upon the Seventh Circuit for the proposition that ”[t]he requirements of Rule 39(a) have ‘been interpreted broadly so as to encompass orders entered by the court and not objected to.’" 863 F.2d at 464 (quoting Lovelace v. Dall, 820 F.2d 223, 227 (7th Cir.1987)). The Sixth Circuit found that the trial court's order setting the case for a bench trial “constituted a ‘sufficient entry in the record to satisfy the requirements of Fed.R.Civ.P. 39(a).’ ’’ Id. at 465 (quoting Fields Eng’g & Equip. Co. v. Cargill, Inc., 651 F.2d 589, 592 (8th Cir.1981)).

. Royal American appears to have overruled Ro-sen v. Dick’s interpretation of Rules 38(d) and 39(a) sub silentio. Compare Royal American, 885 F.2d at 1018, with Rosen v. Dick, 639 F.2d at 90 & n. 11.

. In Zidell Explorations, Inc. v. Conval Int’l, Ltd., 719 F.2d 1465, 1469 (9th Cir.1983), we held that equivocal remarks will not suffice to waive the right to trial by jury. During the course of a jury trial, the district court instructed counsel that it would rule on a particular issue, not the jury. Counsel responded that "if that be the case, that’s fine.” Id. On appeal, we found that counsel’s response could be interpreted as either a waiver of a jury determination of the issue or acceptance of the court’s ruling that the issue was not for the jury. We resolved this ambiguity against inferring a waiver.

The instant case does not implicate the concerns of Rule 39(a) expressed in Zidell, for the appellant here could not have reasonably understood the notice setting the case for a bench trial as a ruling that a jury trial was unwarranted. Appellant does not contend that he understood the trial notice to be "the trial judge’s directive," see id., on the appropriateness of a jury trial.

.The record here reveals that the court clerk announced at the start of the trial that the case was set for non-jury trial. Reporter’s Transcript at 3. Neither party requested a jury or submitted proposed jury instructions. Instead, both parties urged in their closing arguments that the trial judge make the necessary factual determinations. Id. at 195, 203-05.

We are of course, mindful of our obligation to indulge every reasonable presumption against the waiver of the jury right, see Pradier v. Elespuru, 641 F.2d 808, 811 (9th Cir.1981). However, we find it unreasonable to presume that litigants vigorously participating in a two-day bench trial have done so unwittingly.