# First National Bank v. Warren

> Court of Appeals for the Seventh Circuit · July 24, 1986 · 796 F.2d 999

URL: https://www.frixlaw.com/law-library/cases/8942944

## Case

- **Full name:** FIRST NATIONAL BANK OF WAUKESHA v. Robert W. WARREN, Judge, United States District Court for the Eastern District of Wisconsin, Federal Deposit Insurance Corporation, Real party in interest
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** July 24, 1986
- **Citations:** 796 F.2d 999
- **Precedential status:** Published
- **Opinion:** Dissent by Ripple
- **Judges:** Cummings, Easterbrook, Ripple
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8942944

## Opinion text

RIPPLE, Circuit Judge,
dissenting.
This year has been a bad one for the seventh amendment right to a trial by jury. *1007 Congress has prevented the district courts from conducting jury trials in civil cases by failing to allocate sufficient funds. Now, this court, despite long-standing Supreme Court precedent to the contrary which has been considered “too clear for discussion” 1 and, despite clear precedent to the contrary in the lower federal courts, denies a litigant the opportunity to seek, by way of mandamus, review of the denial of a jury trial. Because I disagree with the majority’s analysis of the mandamus issue, I respectfully dissent.
I
The use of a petition for a writ of mandamus to secure a jury trial in the face of a district court’s denial is well-settled. It is clear that the Supreme Court’s decisions in both Dairy Queen, Inc. v. Wood, 369 U.S. 469 , 82 S.Ct. 894 , 8 L.Ed.2d 44 (1962), and Beacon Theatres, Inc. v. Westover, 359 U.S. 500 , 79 S.Ct. 948 , 3 L.Ed.2d 988 (1959), support the use of mandamus to correct the improper denial of a jury trial. Indeed, as the majority indicates, the Court has squarely stated that it is “the responsibility of the Federal Courts of Appeals to grant mandamus where necessary to protect the constitutional right to trial by jury.” Dairy Queen, 369 U.S. at 472 , 82 S.Ct. at 897 . Indeed, the Beacon Theatres Court noted that “the right to grant mandamus to require jury trial where it has been improperly denied is settled.” 359 U.S. at 511 , 79 S.Ct. at 957 .
It is hardly a startling revelation that Dairy Queen and Beacon Theatres involved mixed claims — i.e. both legal and equitable. However, as a fair reading of the cases demonstrates,’ the Supreme Court’s mandate that federal appellate courts must grant the writ “where necessary to protect the constitutional right to trial by jury,” Dairy Queen, 369 U.S. at 472 , 82 S.Ct. at 897 , is hardly dependent on this factor. Rather, that directive is grounded in two basic policy concerns: (1) the judicial obligation “to zealously guard the right to trial by jury,” Bruce v. Bohanon, 436 F.2d 733, 736 (10th Cir.), cert. denied, 403 U.S. 918 , 91 S.Ct. 2227 , 29 L.Ed.2d 694 (1971); and (2) concerns of judicial economy. The basis for the first of these concerns is self-explanatory. A party ought not be required to dissipate his time and economic resources participating in a governmental proceeding which the Constitution explicitly says he need not endure. The second concern, judicial economy, is closely related to the first and is also self-evident. Our judicial process can hardly afford the time and expenditure involved in conducting a useless proceeding. As the Supreme Court noted in Ex parte Simons, 247 U.S. 231 , 38 S.Ct. 497 , 62 L.Ed.2d 1094 (1918):
If we are right, the order was wrong and deprived the plaintiff of her right to a trial by jury. It is an order that should be dealt with now, before the plaintiff is put to the difficulties and the Courts to the inconvenience that would be raised by a severance that ultimately must be held to have been required under a mistake.
Id. at 239, 38 S.Ct. at 497 .
The policies underlying the Simons decision have been recognized consistently as the basis for employing mandamus as a remedy in denial of jury trial contexts. Indeed, courts of appeals both before and after Beacon Theatres and Dairy Queen have uniformly recognized the utility of the rule. See, e.g., In re Vorpahl, 695 F.2d 318, 319 (8th Cir.1982); In re Zweibon, 565 F.2d 742, 745-46 (D.C.Cir.1977); Goldman Sachs & Co. v. Edelstein, 494 F.2d 76, 79 (2d Cir.1974); Black v. Boyd, 248 F.2d 156, 160 (6th Cir.1957). No court of appeals has decided that the writ of mandamus is an inappropriate vehicle by which to challenge the denial of a jury trial. See, e.g., Owens-Illinois, Inc. v. U.S. District Court for Western District of Washington, 698 F.2d *1008 967 (9th Cir.1983) (mandamus is appropriate remedy when right to jury trial is questioned); Myers v. U.S. District Court for District of Montana, 620 F.2d 741 (9th Cir.1980) (accepting mandamus as means to challenge denial of jury consideration of counterclaim); Maldonado v. Flynn, 671 F.2d 729 (2d Cir.1982) (mandamus is the accepted means to challenge denial of jury trial); Lee Pharmaceuticals v. Mishler, 526 F.2d .1115 (2d Cir.1975) (mandamus is appropriate means by which to challenge denial of trial by jury); Higgins v. Boeing Co., 526 F.2d 1004 (2d Cir.1975) (same). The majority overstates the import of In re Don Hamilton Oil Co., 783 F.2d 151 (8th Cir.1986). That case held simply that mandamus was not appropriate where, “[ejvery court to consider the issue, with one exception later overruled, has held that there is no constitutional right to a jury trial in a [29 U.S.C.] § 217 action.” Id. at 151. The court continued: “In view of these decisions and of the questionable nature of the legal issue presented, we deny the petition.” Id. at 152. This holding hardly is illustrative of a supposed “line of cases” restricting the use of mandamus to secure a jury trial. Moreover, the majority has ignored the Eighth Circuit’s clear pre-ira re Don Hamilton Oil Co. statement that “[t]he remedy of mandamus in determining the right to a jury trial is firmly settled.” In re Vorpahl, 695 F.2d at 319 (citing Dairy Queen and Beacon Theatres).
It is also hardly a startling revelation that the Supreme Court has stated, as a general principle, that mandamus is an extraordinary writ and should only be granted in exceptional cases. However, this general cautionary principle does not justify the court’s ignoring well-established precedent. The caselaw cited by the majority no more undercuts the Supreme Court’s clear direction that mandamus should be employed to protect the right to a jury trial than it undercuts the use of mandamus in other established contexts. See, e.g., Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336 , 96 S.Ct. 584 , 46 L.Ed.2d 542 (1976) (mandamus is proper mechanism by which to challenge district court’s remand of a case properly removed to federal court); Van Dusen v. Barrack, 376 U.S. 612 , 84 S.Ct. 805 , 11 L.Ed.2d 945 (1964) (mandamus is the proper remedy when transfer has been ordered in violation of the limitations established in 28 U.S.C. § 1404 (a)); Union Carbide Corp. v. U.S. Cutting Service, Inc., 782 F.2d 710 (7th Cir.1986) (mandamus is appropriate to review orders denying motions to recuse or disqualify); Bailey v. Sharp, 782 F.2d 1366, 1367 (7th Cir.1986) (mandamus is appropriate mechanism by which an appellate court may review a district court’s grant of a new trial without jurisdiction to do so); Bloom v. Barry, 755 F.2d 356 (3d Cir.1985) (mandamus is proper remedy when transfer is ordered in violation of the limits established in 28 U.S.C. § 1404 (a)); In re Scott, 709 F.2d 717 (D.C.Cir.1983) (same).
Moreover, it must be noted, assuming arguendo that use of the writ might not be appropriate in some circumstances where the right to jury trial is at stake, that no such circumstances are evident here. The district court was clearly reluctant to deny First National Bank a jury trial. The parties had intended, over years of extensive discovery, to have the cause of action tried to a jury. Two weeks before the trial, the FDIC altered its pleadings in an apparent attempt to circumvent the jury requirement; the action taken by the majority in this case sanctions this evasive and dilatory behavior.
II
The court does more than ignore the policy concerns underlying the large body of Supreme Court and lower federal court precedent contrary to its holding. It also appears to rely, I respectfully suggest, on an impermissible criterion. It suggests that the petition should be denied because the question whether a jury trial is necessary in this case is an issue of some difficulty. However, it has long been estab *1009 lished that the difficulty of the question presented is not, at least in the jury trial context, sufficient reason to deny the petition. As the District of Columbia Circuit remarked in Filmon Process Corp. v. Sirica, 379 F.2d 449, 450-51 (D.C.Cir.1967):
[I]t is a fair inference that even on an application for an extraordinary writ for pre-trial relief the Supreme Court expects the courts of appeals to make a determination whether or not there is a right of trial by jury, regardless of whether the quetion [sic] is a close or complicated one, and that the Court would not welcome a doctrine whereby a party’s constitutional right to jury trial was trammeled in fact because a court of appeals determined that the issue was doubtful and that it need not and would not decide whether or not the party had the right of trial by jury.
Accord Bohanon, 736 F.2d at 735.
III
An intermediate appellate court’s primary function is to assure that the litigants before it are treated according to the prevailing legal norms. As lower court judges, our job is to apply the law not to change it. In this case, the majority has, I respectfully suggest, reversed those priorities. Consequently, the parties must wait several years for a definitive determination of their rights and a very busy district judge must try a five week case knowing that he may well have to repeat the exercise again.
. 9 J. Moore, B. Ward and J. Lucas, Moore’s Federal Practice, ¶ 110.28 (2d ed. 1985).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8942944. Public record. Not legal advice.