John Z. Mardesich v. Charles J. Marciel & Lucy Marciel, 538 F.2d 848 (9th Cir. 1976). · Go Syfert
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John Z. Mardesich v. Charles J. Marciel & Lucy Marciel, 538 F.2d 848 (9th Cir. 1976). Cases Citing This Book View Copy Cite
35 citation events (9 in the last 25 years) across 13 distinct courts.
Treatment trajectory · 1980 → 2026 · click a year to view as-of
1980 2003 2026
Top citers, strongest first. 20 distinct citers. How cited ↗
discussed Cited as authority (rule) Norman v. Travelers Indemnity Company
W.D. Wash. · 2022 · confidence medium
Fisheries, 239 F.3d at 1002. 12 See also Mardesich v. Marciel, 538 F.2d 848, 849 (9th Cir. 1976) (per curiam) (a party’s oversight 13 leaves the district court with “virtually no discretion to exercise”). 14 The parties contend that this case is not one of oversight or inadvertence; rather, they made 15 a “reasoned decision” premised on the belief that the bad faith issues were better suited for a bench 16 trial.
discussed Cited as authority (rule) Talkington v. Renzelli
N.D.W. Va. · 2019 · confidence medium
See Farias v. Bexar County Bd. of Trustees for Mental Health Retardation Services, 925 F.2d 866, 873 (5th Cir. 1991), cert denied, 502 U.S. 866 (1991); Kitchen v. Chippewa Valley Sch., 825 F.2d 1004, 1012-13 (6th Cir. 1987); Mardesich v. Marciel, 538 F.2d 848, 849 (9th Cir. 1976).
discussed Cited as authority (rule) Baldwin v. United States
N. Mar. I. · 2011 · confidence medium
Fisheries Corp., 239 F.3d at 1002 (affirming district court’s denial of untimely demand for jury trial under Rule 39(b)) (citing Mardesich v. Marciel, 538 F.2d 848, 849 (9th Cir.1976); Russ v. Standard Ins.
discussed Cited as authority (rule) Walker v. California
9th Cir. · 1999 · confidence medium
Citizens v. Wilson, 131 F.3d 1297 , 1302-07 (9th Cm. 1997) (rejecting as untimely a motion to intervene made pursuant to Rule 24(a)(2)); Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir.1996) (“[A] party who fails to file timely objections to a magistrate judge’s [Rule 72(a) ] nondispositive order with the district judge to whom the case is assigned forfeits its right to appellate review of that order.”); Mardesich v. Marciel, 538 F.2d 848, 849 (9th Cir.1976) (per curiam) (holding that motions for jury trial made pursuant to Rule 39(b) should be “denied unless some cause be…
discussed Cited as authority (rule) Clarke F. Walker v. State Of California
9th Cir. · 1999 · confidence medium
Citizens v. Wilson, 131 F.3d 1297 , 1302-07 (9th Cir. 1997) (rejecting as untimely a motion to intervene made pursuant to Rule 24(a)(2)); Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996) ("[A] party who fails to file timely objections to a magistrate judge's [Rule 72(a)] nondispositive order with the district judge to whom the case is assigned forfeits its right to appellate review of that order."); Mardesich v. Marciel, 538 F.2d 848, 849 (9th Cir. 1976) (per curiam) (holding that motions for jury trial made pursuant to Rule 39(b) should be "denied unless some cause beyond m…
discussed Cited as authority (rule) Vannoy v. Cooper
E.D. Va. · 1995 · confidence medium
Mardesich v. Marciel, 538 F.2d 848, 849 (9th Cir.1976). 2 Other decisions have specifically articulated five, rather than four, relevant factors for assessment in deciding a Rule 39(b) motion, the fifth being the reason for the failure to make a timely demand.
discussed Cited as authority (rule) Lewis Eisenberg v. Insurance Company of North America
9th Cir. · 1991 · confidence medium
In considering untimely requests for a jury trial, the Ninth Circuit has said, a court must deny such motions "unless some cause beyond mere inadvertence is shown." Mardesich v. Marciel, 538 F.2d 848, 849 (9th Cir.1976) (per curiam). 8 In this case, Eisenberg fails to show such cause.
cited Cited as authority (rule) Roberson v. Equitable Life Assurance Society of the United States
C.D. Cal. · 1987 · confidence medium
See, e.g., Lewis v. Time Inc., 710 F.2d 549, 556-57 (9th Cir.1983); Mardesich v. Marciel, 538 F.2d 848, 849 (9th Cir.1976).
discussed Cited as authority (rule) Bell v. Cameron Meadows Land Co.
9th Cir. · 1982 · confidence medium
See id. (an untimely request must be denied unless some cause beyond mere inadvertence is shown); Mardesich v. Marciel, 538 F.2d 848, 849 (9th Cir. 1976) (Where the only reasons advanced are oversight or inadvertence, the trial court has “virtually no discretion to exercise.”).
discussed Cited as authority (rule) Bell v. Cameron Meadows Land Co.
9th Cir. · 1982 · confidence medium
See id. (an untimely request must be denied unless some cause beyond mere inadvertence is shown); Mardesich v. Marciel, 538 F.2d 848, 849 (9th Cir. 1976) (Where the only reasons advanced are oversight or inadvertence, the trial court has "virtually no discretion to exercise."). 36 Here the uncontroverted affidavit of plaintiffs' counsel indicates the jury demand was filed fifty days late because the attorney then in charge of the case was preoccupied with the impending dissolution of his law firm.
cited Cited as authority (rule) Lawrence W. SUTTON, Plaintiff-Appellant, v. ATLANTIC RICHFIELD COMPANY, Defendant-Appellee
9th Cir. · 1981 · confidence medium
Mardesich v. Marciel, 538 F.2d 848, 849 (9th Cir. 1976); accord Galella v. Onassis, 487 F.2d 986, 996 (2d Cir. 1973). 4 .
discussed Cited as authority (rule) Chandler Supply Company v. Gaf Corporation
9th Cir. · 1980 · confidence medium
Moreover an “untimely requests for a jury trial must be denied unless some cause beyond mere inadvertence is shown.” Mardesich v. Marciel, 538 F.2d 848, 849 (9th Cir. 1976) (per curiam); Galella v. Onassis, 487 F.2d 986, 989 (2d Cir. 1973).
cited Cited "see" Hillen v. David R. Unruh Trust
Bankr. D. Idaho · 2019 · signal: see · confidence high
See Mardesich v. Marciel, 538 F.2d 848, 849 (9th Cir. 1976); see also Russ v. Standard Ins.
cited Cited "see" Hillen v. Burke Electric, Inc.
Bankr. D. Idaho · 2019 · signal: see · confidence high
See Mardesich v. Marciel, 538 F.2d 848, 849 (9th Cir. 1976); see also Russ v. Standard Ins.
cited Cited "see" Pacific Fisheries Corporation v. Hih Casualty & General Insurance, Ltd.
9th Cir. · 2001 · signal: see · confidence high
See Mardesich v. Marciel, 538 F.2d 848, 849 (9th Cir. 1976); see 14 also Russ v. Standard Ins.
cited Cited "see" Pacific Fisheries Corp. v. HIH Casualty & General Insurance, Ltd.
9th Cir. · 2001 · signal: see · confidence high
See Mardesich v. Marciel, 538 F.2d 848, 849 (9th Cir.1976); see also Russ v. Standard Ins.
discussed Cited "see" Ticor Title Insurance Company v. Alvin Florida, Jr. Homer H. Shepard, and Jeffrey Anthony Deborah v. Blue
9th Cir. · 1991 · signal: see · confidence high
See Mardesich v. Marciel, 538 F.2d 848, 849 (9th Cir.1976) (denial of relief from waiver of jury trial); United States v. 2.61 Acres of Land, More or Less, 791 F.2d 666, 670 (9th Cir.1985) (continuance).
cited Cited "see" Johnnie Wall v. National Railroad Passenger Corporation
9th Cir. · 1983 · signal: see · confidence high
See Mardesich v. Marciel, 538 F.2d 848 (9th Cir.1976); Rutledge v. Electric Hose & Rubber Co., 511 F.2d 668, 675 (9th Cir.1975).
discussed Cited "see, e.g." Argyrios Fliakas v. Army Navy Country Club, Argyrios Fliakas v. Army Navy Country Club, Argyrios Fliakas v. Army Navy Country Club
4th Cir. · 1986 · signal: see also · confidence low
See also Mardesich v. Marciel, 538 F.2d 848 (9th Cir. 1976). 9 Here the excuse offered for noncompliance was feeble; counsel said that the jury demand had been inadvertently dropped in word processing.
discussed Cited "see, e.g." Potlatch Corp. v. United States
N.D. Cal. · 1982 · signal: see, e.g. · confidence low
See, e.g., Mardesich v. Marciel, 538 F.2d 848 (9th Cir. 1976); Pacific Queen Fisheries v. Symes, 307 F.2d 700, 718-20 (9th Cir. 1962), cert. denied, 372 U.S. 907 , 83 S.Ct. 716 , 9 L.Ed.2d 716 (1963).
Retrieving the full opinion text from the archive…
John Z. MARDESICH, Appellant,
v.
Charles J. MARCIEL and Lucy Marciel, Appellees
74-3338.
Court of Appeals for the Ninth Circuit.
Jul 14, 1976.
538 F.2d 848
Daniel C. Olney, of Olney, Levy, Kaplan & Tenner, Wilimington, Cal., for appellant., Herbert R. Lande, of Manns, Manns & Lande, Beverly Hills, Cal., for appellees.
Ely, Wallace, Crary.
Cited by 27 opinions  |  Published

OPINION

Before ELY and WALLACE, Circuit Judges, and CRARY, * District Judge. PER CURIAM:

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[*849] 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 beyond mere inadvertence is shown.” Galella v. Onassis, 487 F.2d 989, 996 (2nd Cir. 1973). In adopting its position the Second Circuit has apparently been persuaded by a consistent line of district court cases denying relief based on mere inadvertence, effectively narrowing the allowable scope of the trial court’s discretion “to determining whether the moving party’s showing beyond mere inadvertence is sufficient to justify relief.” See Noonan v. Cunard Steamship Co., 375 F.2d 69, 70 (2nd Cir. 1967) (Emphasis in original).

Whatever the test that should be applied, it is clear from the record here that the District Court did not abuse its discretion, such as it had, in denying Mardesich relief from his waiver. See Rutledge v. Electric Hose & Rubber Co., 511 F.2d 668, 675 (9th Cir. 1975); Tomlin v. Pope & Halbot Inc., 282 F.2d 447, 449 (9th Cir. 1960).

AFFIRMED.