Edward Allen White v. Wayne McGinnis

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: 1 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. 2 * On June 11, 1984, appellant Edward Allen White, an Arizona State Prison inmate, filed a complaint…

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. 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 appel-lee on January 27, 1986. Appellant…

concurring in the judgment:

I concur in the conclusion reached by the majority insofar as it affirms the judgment of the district court in favor of the defendant. I write separately because, unlike my colleagues, I would not reach the merits of this appeal.

Appellant did not object to a bench trial in the district court. A majority of the active judges of this court voted to take this case en banc to determine whether the opinion in Palmer v. United States, 652 F.2d 893 (9th Cir.1981), was correctly decided. In Palmer , the majority reversed the judgment on the ground that the plaintiff was denied his right to a trial by jury notwithstanding the fact that he did not object to a bench trial. Id. at 896 .

In his dissent in Palmer , Judge Chambers concluded that the question whether the appellant was entitled to a trial by jury need not be considered because Fisher had participated in a non-jury trial without objection. Palmer, 652 F.2d at 897 (Chambers, J., dissenting). Judge Chambers reasoned that permitting a party to raise this issue for the first time on appeal would “ambush [the] trial judge.” Id. I would overrule Palmer and adopt Judge Chambers’ analysis concerning the…

with whom SCHROEDER and FLETCHER, Circuit Judges, join, dissenting:

Palmer v. United States, 652 F.2d 893 (9th Cir.1981), dealt with a litigant who didn’t complain when the district court mistakenly ignored his timely jury demand; instead, the litigant participated in the bench trial and complained only when judgment was entered against him. We granted the litigant’s request for a new trial, holding that the Federal Rules of Civil Procedure set out the ways one can withdraw a jury demand, and that failing to complain about the court’s mistake is not one of them. The majority today overrules Palmer ’s interpretation of the Federal Rules as “rigid” and “formalistic,” as if to suggest that there is some other, more palatable, way to read the Rules. But there is not; the language of the Rules is susceptible to only one reading. Consequently, to reach the result it deems desirable, the majority follows the lead of our sister circuits by engrafting a judicially-created exception onto the statutory language. Because I would reaffirm Palmer as the straightforward application of a clear rule, I dissent.

DISCUSSION

As the Supreme Court has often noted, the process of statutory…