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936 F2d 576 Atlansky v. Academy Pacific Business & Travel College

936 F.2d 576

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Jerry M. ATLANSKY, Plaintiff-Appellant,
v.
ACADEMY PACIFIC BUSINESS & TRAVEL COLLEGE, Defendant-Appellee.

No. 90-55423.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 10, 1991.
Decided June 24, 1991.

Before HUG, WILLIAM A. NORRIS and LEAVY, Circuit Judges.

1

MEMORANDUM*

2

Jerry Atlansky appeals the district court's judgment, after a bench trial, in favor of Academy Pacific Business and Travel College ("Academy Pacific") in this age discrimination action. Atlansky contends that the district court abused its discretion when it struck the jury demand from Atlansky's complaint as a sanction for his failure to file jury instructions in a timely manner. We reverse.

3

On September 23, 1988, Atlansky filed this action seeking recovery for age discrimination pursuant to 29 U.S.C. Sec. 626(b). The complaint included a demand for a jury trial. A pretrial conference order filed by the parties and, subsequently, signed by the district judge on November 20, 1989, required that "[a]t least one week prior to the trial date each counsel shall deliver to the Court and opposing counsel ... proposed jury instructions as required by Local Rule 13.2...." The pretrial order also stated that the trial was estimated to take 3-4 days and was scheduled for November 28, 1989.

4

The trial was ultimately "trailed" by the court until February 13, 1990, however, Atlansky did not attempt to file his proposed jury instructions until the morning of trial. The court clerk returned the jury instructions without filing them.

5

Prior to trial, Atlansky again tried to submit his proposed instructions to the judge. The district judge stated:

6

The matter had been noted as a jury trial, and it has been trailing as a trial since November 28, 1989. As I reviewed the file over and over again, and waiting patiently for proper compliance to the rules perfecting the jury trial, I find that there was no filing of jury instructions nor anything akin to jury instructions pursuant to local rules, and pursuant to the pretrial order.

7

Therefore, at this point in time none being filed with the Court, I strike the jury trial and we will proceed forth with both counts as a Court trial.

8

Atlansky's counsel responded that the failure to file the instruction was inadvertent and requested the judge to reconsider the decision to strike the jury demand. The court declined to accept the proposed instructions.

9

After the bench trial, the court concluded that (1) age was not a determining factor in defendant's termination of plaintiff's employment, and (2) defendant did not engage in a pattern of age discrimination. The district court entered a judgment for the defendant on February 28, 1990. Atlansky timely appeals.

10

As a threshold issue, Academy Pacific contends that Atlansky waived his right to appeal the jury trial issue because he failed to object to the absence of a jury at any time during the bench trial. This contention is meritless.

11

Prior to trial, Atlansky's counsel requested that the judge hear argument regarding whether to forego a jury trial. Further, as part of the argument, Atlansky's counsel specifically requested that the judge reconsider the decision to strike the jury demand. Thus, Atlansky has neither raised this issue for the first time on appeal, see International Union of Bricklayers & Allied Craftsmen Local Union No. 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1404-05 (9th Cir.1985), nor has he participated in the bench trial without objection, compare White v. McGinnis, 903 F.2d 699, 703 (9th Cir.) (en banc), cert. denied, 111 S.Ct. 266 (1990).

12

Atlansky contends that the district court abused its discretion when it struck the jury demand from the complaint as a sanction for failing to file proposed instructions in a timely manner. This court reviews a district court's sanctions under Rule 16(f) for an abuse of discretion. Ford v. Alfaro, 785 F.2d 835, 839 (9th Cir.1986).

13

We conclude the district court's decision to strike the jury demand was an abuse of discretion. This case is distinguishable from those in which a willful or repetitive violation of the pretrial order justified harsh treatment. Compare Malone v. United States Postal Serv., 833 F.2d 128, 131 (9th Cir.1987), cert. denied, 488 U.S. 819 (1988); Ayers v. City of Richmond, 895 F.2d 1267, 1270 (9th Cir.1990). Instead, Atlansky's failure to comply with the local rules was inadvertent. Further, the district court had three days to review the jury instructions and the court was aware of this fact because the pretrial order indicated that the trial would take 3-4 days. The inconvenience to the court by Atlansky's failure to comply with the order was minimal. Moreover, the district court could have informed Atlansky that he was in violation of the rules. The district judge stated that he had been "waiting patiently for proper compliance to the rules," however, the court did not issue an order or otherwise warn Atlansky that his right to a jury trial was in jeopardy. Such a warning was appropriate in light of the severity of the sanction.

14

The judgment of the district court is reversed, and this case is remanded for further proceedings.

15

REVERSED and REMANDED.

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3