John Z. Mardesich v. Charles J. Marciel and Lucy Marciel

Mardesich instituted a personal injury suit under 46 U.S.C. § 688 (the Jones Act) and general maritime law. After a non-jury trial, the District Court entered a judgment for Mardesich in the amount of $13,-000. Mardesich appeals, arguing that the District Court either refused to exercise discretion or abused its discretion in denying Mardesich’s motion for relief from his waiver of a jury trial under Fed.R.Civ.P. 39(b). Mardesich had never formally demanded a jury trial, as he had the right to do under the Jones Act. He requested to be relieved from his waiver at the. pre-trial hearing on the alleged basis of “slight oversight,” but the District Court denied the request. We affirm.

Mardesich wrongly characterizes the District Court’s decision as a failure to exercise discretion, when, as we see the facts, the District Court had virtually no discretion to exercise. The only reason advanced by Mardesich in support of his motion for relief was oversight or inadvertence in failing properly to demand a jury trial.

The Court of Appeals for the Second Circuit has adopted a rather stringent rule, holding that “[ujntimely requests for jury trial must be denied unless some cause…