Unpublished Disposition, 861 F.2d 269 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 861 F.2d 269 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,v.42.24 ACRES OF LAND, MORE OR LESS, SITUATED IN PONDERACOUNTY, STATE OF MONTANA; Mas Development, Inc.,a Corporation; Petrolease, a Montanacorporation, Defendants-Appellants.

No. 87-4256.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 6, 1988.Decided Oct. 19, 1988.

Before PREGERSON, REINHARDT and NOONAN, Circuit Judges.


Following a jury trial, appellants MAS Development, Inc. and Petrolease were awarded $118,300 as compensation for property condemned by the United States pursuant to 10 U.S.C. §§ 2663 and 9773. Appellants then moved for judgment notwithstanding the verdict and for a new trial. The district court, in a memorandum opinion, denied the motion. MAS and Petrolease appealed, contending, inter alia, that in setting the trial date, the court unfairly deprived appellants of sufficient time to prepare their case. Because this contention has merit, we reverse the district court's denial of appellants' motion, and remand for a new trial.


In July, 1985, the United States condemned a 42.24 acre portion of land in which appellants MAS Development, Inc. and Petrolease (hereafter "MAS") have an ownership interest. This property, referred to as Custer Court, was being used at the time of the taking as a mobile home park. The land was taken for use by the Department of the Air Force, in connection with the Strategic Training Range Complex in Conrad, Montana.

The United States estimated just compensation for the taking to be $139,600.00, and deposited that amount in the registry of the court. Appellants noticed appearances with the district court, and trial was eventually set for March 24, 1987.

On December 16, 1986, the district court ordered that MAS would have five days after the court's rulings on pending motions within which to file and serve interrogatories on the United States. The court ruled on the pending motions on March 20, 1987. Thus, under the December 16, 1986 order, appellants were to have until March 25, 1987 to file their pretrial discovery interrogatories and serve them on the United States. The trial, however, commenced on March 24, 1987, after the district court had denied MAS' motion for continuance of the trial.


We review the district court's decision to set the trial date on March 24, 1987 for abuse of discretion. Hansen v. Commissioner of Internal Revenue Service, 820 F.2d 1464, 1467 (9th Cir. 1987).


On December 16, 1986, the district court ordered that after the court ruled on pending motions, MAS would have five days to serve interrogatories on the United States. Under Fed. R. Civ. P. 33(a), the United States was entitled to thirty days within which to answer these interrogatories. MAS was justified, therefore, in believing that the trial could not be set for a date earlier than thirty to forty days after the court had ruled on the pending motions, for only this amount of time would permit the interrogatories to be served, answered, and analyzed in preparation for trial.

The court ruled on the pending motions on March 20, 1987, and proceeded to set the trial date for March 24, 1987. MAS reminded the court of its December 16, 1986 ruling permitting MAS five days within which to serve interrogatories on the United States. The court, however, refused to postpone the beginning of the trial. The trial began before MAS' five days had expired.

The actions of the trial court constituted an abuse of discretion which resulted in prejudice to MAS. First, MAS' pretrial discovery rights were violated because it could not reasonably be expected to prepare and serve interrogatories and receive the answers in four days. Second, MAS reasonably believed that it would have time to prepare for trial after the rulings on the motions. In large part, these rulings determined the evidence and legal theories MAS could rely upon at trial. Therefore, the court's decision to begin the trial on March 24, 1987 deprived MAS of adequate time to prepare for trial.1 

Because the district court's setting of the trial date deprived appellants of the opportunity for a fair trial, we REVERSE and REMAND.


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


In addition, MAS was unable to present its key witness for testimony on the landowner's opinion of value, Mr. Schlosser, because, not anticipating trial in March, MAS had not arranged to have Mr. Schlosser available to testify at that time. The court refused to allow MAS to present a substitute witness for Mr. Schlosser. The absence of Mr. Schlosser or a substitute witness deprived MAS of a fair trial