Davis v. Bath ( 1992 )

USCA1 Opinion

          June 19, 1992         [NOT FOR PUBLICATION]




                                 ___________________


          No. 92-1023

            


                                   LOREN A. DAVIS,

                                Plaintiff, Appellant,

                                          v.

                        BATH IRON WORKS, CORPORATION, ET AL.,

                                Defendants, Appellees.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                     [Hon. D. Brock Hornby, U.S. District Judge]
                                            ___________________

                                 ___________________

                                        Before

                                 Breyer, Chief Judge,
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                           Campbell, Senior Circuit Judge,
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                              and Selya, Circuit Judge.
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                                 ___________________

               Cutis Weber, John W. Conway and Linnell, Choate & Webber, on
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          brief for appellant.
               Constance P. O'Neil, Arlyn H. Weeks, Conley, Haley, O'Neil &
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          Kaplan, on brief for appellee Bath Iron Works Corporation. 
          ______
               Jeffrey Neil Young, McTeague, Higbee,  Libner, MacAdam, Case
               __________________  ________________________________________
          & Watson, on brief for appellee Union.
          ________



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                 Per Curiam.     Appellant, plaintiff below,  raises only
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            oneissue on this appeal from a final judgment in favor of the

            defendants.   He argues  that the  district court  abused its

            discretion  under Fed. R. Civ.  P. 39(b), when  it denied his

            belated demand for a jury trial.     

                 This case  grows out  of the termination  of plaintiff's

            employment as a boiler room operator with defendant Bath Iron

            Works Corp. ("BIW").   Plaintiff's union pursued  plaintiff's

            grievance through  two steps  in the grievance  procedure but

            then declined to take the case to arbitration. 

                 Plaintiff began this  action in the  Androscoggin County

            Superior Court against BIW, his union and its local, alleging

            breach  of  contract   and  breach  of   the  duty  of   fair

            representation   under    301(a)   of  the   Labor-Management

            Relations  Act  of 1947,  29 U.S.C.   185(a).   The  case was

            removed  to  the District  Court  for the  District  of Maine

            pursuant  to two separate notices of removal joined in by all

            three defendants.  The last necessary responsive pleading was

            filed  with   the  district  court  on   November  21,  1990.

            Plaintiff's first  demand  for  a  jury  trial  was  made  on

            December 20, 1990 in a  letter responding to the magistrate's

            Scheduling  Order.  On March  21, 1991, after  the cases were

            consolidated, and at the court clerk's  suggestion, plaintiff

            filed  a formal  "Objection  to Proposed  Scheduling  Order,"

            again  requesting a  jury trial.   Neither  plaintiff's first



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            demand nor his formal objection contained any explanation for

            his  failure to comply with  the time limit  for jury demands

            contained  in Fed.  R.  Civ.  P.  38(b).    After  the  court

            overruled  plaintiff's objection  to  the  scheduling  order,

            plaintiff  then filed a "Motion for Jury Trial" under Fed. R.

            Civ.  P.  39(b),  along  with an  affidavit  explaining  that

            plaintiff's counsel was not familiar with federal practice.1

                 Fed. R.  Civ. P. 81(c) establishes  that actions removed

            from state courts  are to  be governed after  removal by  the

            Federal Rules of Civil Procedure.2   Plaintiff's demand for a

            jury trial was thus subject to the time limit in Fed. R. Civ.

            P. 38(b),  which provides that  a demand  for a  jury on  any

            issue  triable of right by a jury  is to be served "not later

            than ten days after the service of the last pleading...".   

                 Under Fed. R. Civ. P. 39(b) "notwithstanding the failure

            of a party to demand a jury in an action in which such demand


                                
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            1.  Defendants  debated  plaintiff's  assertion, noting  that
            plaintiff's counsel had been  admitted to practice before the
            United States Supreme Court in 1968 and was listed as counsel
            of record in three reported cases before this Court and seven
            cases  before the Federal District Court  for the District of
            Maine.  

            2.  The remaining portions of Fed.  R. Civ. P. 81(c) relating
            to  jury  demands  are  not  relevant  because  the  discrete
            circumstances addressed in the balance of that rule were  not
            present in this case:  there were still pleadings required to
            be  filed in  this case  at the  time of  removal; the  party
            seeking  the jury trial here had not previously made a demand
            for one in accordance with state law; and this was not a case
            where a jury  trial would have been automatically  granted in
            state court without an express demand.

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            might  have been made of  right, the court  in its discretion

            upon motion  may  order a  trial  by a  jury  of any  or  all

            issues."  

                 The district court  exercised the discretion  granted to

            it in  Rule 39(b)  to deny  plaintiff's motion.    We see  no

            reason  to disturb  that ruling  here.   The lower  court had

            before it the  parties' arguments on all the relevant issues,

            including  plaintiff's  counsel's alleged  unfamiliarity with

            federal practice, the likelihood of prejudice  to defendants,

            the nature of the issues to be tried and the  extent to which

            any issues might be particularly appropriate to a jury trial.

            As we said in  Rowlett v. Anheuser-Busch, Inc., 832  F.2d 194
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            (1st  Cir. 1987),  "we are  of the  view that  the discretion

            under Rule  39(b) is very  broad and  that the case  would be

            very rare indeed where a district court abused its discretion

            in  denying or  granting a  Rule 39(b)  motion." Id.  at 200.
                        __                                   __

            Because the  district  court is  "closer to  the arena,"  its

            conclusions  on  matters  committed  to  its  discretion  are

            entitled to deference. Travelers  Indem. Co. v. Dingwell, 884
                                   _____________________    ________

            F.2d 629 (1st Cir. 1989).

                  Nothing in  the record supports  plaintiff's contention

            that  the  district  court  applied  the  wrong  standard  in

            deciding  plaintiff's motion or failed in any way to give due

            consideration to all of the relevant facts and arguments. 





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                 As we  find no abuse of  discretion here, we need  not  

            reach defendants' further argument that the  district court's

            judgment for  defendants on the merits  rendered harmless any

            error in its denial of a jury trial.  There is also no reason

            to  reach defendants'  request for  dismissal of  this appeal

            because of plaintiff's failure to provide a trial transcript.

            Appellees' request  for attorneys' fees and  costs is denied.

            While  not  a  strong  case,  this  appeal was  not  entirely

            frivolous. 

                 Accordingly, the decision below is affirmed.
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