Unpublished Disposition, 863 F.2d 886 (9th Cir. 1988)

MEMORANDUM^* 

Petitioner Plastic Science petitions this court to issue a writ of mandamus vacating the district court's order that the trial on the complaint and the counterclaim be heard without a jury and compelling the district court to conduct a jury trial on all issues and facts concerning Plastic Science's counterclaim. We deny the petition for writ of mandamus.

FACTS

On June 9, 1987, Borg-Warner initiated a collection action in the United States District Court for the Central District of California against Plastic Science and Arthur Irving Protas. Borg-Warner alleged causes of action against Plastic Science for breach of contract and goods sold and delivered. The products at issue in the complaint were delivered to Plastic Science between June 11, 1985, and January 31, 1986. The complaint did not set forth any demand for a jury trial.

On July 31, 1987, Plastic Science and Protas filed a joint answer to the complaint, setting forth eighteen affirmative defenses. The answer did not contain any jury demand. Also on July 31, 1987, Plastic Science and Protas jointly filed a counterclaim, alleging causes of action against Borg-Warner for, among other things, breach of contract, breach of implied covenant of good faith and fair dealing, and breach of express and implied warranties. Plastic Science's counterclaim involved the same Borg-Warner products at issue in the complaint, but only covered purchases of those products prior to June 11, 1985. The counterclaim contained no demand for a jury trial. On August 19, 1987, Plastic Science and Protas served a demand for jury trial with respect to the entire action. The jury demand was filed on August 24, 1987. On October 1, 1987, the district court set the entire matter for jury trial.

On March 23, 1988, counsel for the parties stipulated that the transactions alleged in the complaint were different and separate from the transactions, occurrences and legal theories underlying the counterclaim. Counsel further stipulated that the jury demand was not timely with respect to the issues asserted in the complaint and answer, but was timely with respect to issues asserted in the counterclaim and Borg-Warner's answer to the counterclaim. Then, pursuant to counsels' request, the district court entered the following order:

IT IS SO ORDERED that any issues tried in connection with Borg-Warner Chemicals, Inc.'s action for breach of contract, goods sold and delivered and breach of written guaranty shall not be determined by a jury.

On May 31, 1988, Judge Takasugi ruled sua sponte that, since counsel's stipulation had waived a jury trial for all issues pertaining to the complaint, and since the issues and transactions involved in the complaint and answer were generally the same as those involved in the counterclaim, the trial on the complaint and counterclaim would be "by court sitting without a jury." At the time of that order, the trial had been set to begin on August 2, 1988.

On June 28, 1988, Plastic Science filed its petition for writ of prohibition and/or mandamus. Plastic Science is requesting that we vacate the district court's order that the trial on both the complaint and counterclaim be heard without a jury and compel the trial court to conduct a jury trial on all issues and facts concerning the counterclaim.

DISCUSSION

Although this court has the power to issue a writ of mandamus under the All Writs Statute, 28 U.S.C. § 1651, the "remedy of mandamus is a drastic one, to be invoked only in extraordinary situations." Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980) (per curiam); see also Banker's Life & Casualty v. Holland, 346 U.S. 379, 383 (1953) ("The supplementary review power conferred on the courts by Congress in the All Writs Act is meant to be used only in the exceptional case where there is clear abuse of discretion or 'usurpation of judicial power' ..."). Consequently, the petitioner has the burden of showing that his right to issuance of the writ is "clear and indisputable." Banker's Life, 346 U.S. at 384 (quoting United States v. Duell, 172 U.S. 576, 582 (1899)).

In Bauman v. United States District Court, 557 F.2d 650 (9th Cir. 1977), this court engaged in an exhaustive review of Supreme Court and Ninth Circuit cases dealing with mandamus. The Bauman court identified five factors that courts should consider in determining whether a writ should be granted in a particular case:

(1) whether the party seeking the writ has no other adequate means, such as direct appeal, to attain the relief he desires; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the district court's order is clearly erroneous as a matter of law; (4) whether the district court's order is an oft repeated error or manifests persistent disregard for the federal rules; and (5) whether the district court's order raises new and important problems or issues of law of first impression.

Id. at 654-55.

The Bauman factors "are to be considered in the aggregate and usually must be carefully weighed before determining whether a writ should issue. Valley Broadcasting v. United States District Court, 798 F.2d 1289, 1291-92 (9th Cir. 1986). The Ninth Circuit has "not issued a writ based upon a finding that only one of the criteria was satisfied," nor has it granted a writ when the majority of the factors weighed against granting mandamus relief. Id. at 1292, n. 3. The circuit, however, has never held that satisfaction of all the criteria is required. Id.

Against this backdrop, we turn our attention to Plastic Science's bases for requesting mandamus relief. Plastic Science contends that the trial court made three errors which were clearly erroneous as a matter of law when it (1) failed to abide by the stipulation of the parties concerning transactions and issues involved in the complaint and counterclaim, (2) ruled that Plastic Science's counterclaim arises generally from the same transactions as the complaint and raises the same issues as the complaint and answer, and (3) ruled that since Plastic Science had waived the right to a jury trial on Borg-Warner's complaint, the trial on both the complaint and the counterclaim should be heard by the court without a jury.¹  Plastic Science further contends that all of the Bauman factors are satisfied in this case and thus mandamus relief is appropriate to correct the district court's errors.

The third Bauman factor indeed may be satisfied in this case as the district court may have committed clear error by finding Plastic Science had waived its right to a jury trial on the counterclaim. However, we need not reach a conclusion on this issue. Even assuming that a clear error was made, mandamus relief is inappropriate here, as we find that, contrary to Plastic Science's assertion, none of the remaining four Bauman factors are satisfied in this case. See Valley Broadcasting, 798 F.2d at 1292, n. 3 (writ will not issue when only one of Bauman factors is satisfied, or when a majority of factors militate against issuance).

First, Plastic Science does not argue that the appellate court will be unable to review the contested issues on direct review after final judgment. Indeed, any of the alleged errors of law would be fully reviewable on appeal. Thus, on appeal, Plastic Science will have the possibility of gaining a reversal and a new jury trial--the precise relief desired. Therefore, Plastic Science fails to meet the first Bauman factor.

Second, Plastic Science argues that since the district court will certainly be reversed on direct appeal, failure to correct the errors now by issuance of a writ will result in the necessity for a retrial. Plastic Science contends that such a retrial would be beyond the financial means of the company and would be a great inconvenience to parties and witnesses. Thus, Plastic Science claims, denial of its petition will damage and prejudice it in a way not correctable on appeal.

This court, however, has consistently rejected the position that increased litigation costs or inconvenience to parties and witnesses renders review after final judgment inadequate. Washington Public Utilities Group v. United States District Court, 843 F.2d 319, 325 (9th Cir. 1987); In re Sugar Antitrust Litigation, 559 F.2d 481, 484 (9th Cir. 1977) (per curiam). See also Gulf Research and Development Co. v. Harrison, 185 F.2d 457, 459 (1950) (inconvenience of proceeding with what may be an unnecessary trial is a hardship of litigation and is insufficient to justify mandamus relief).

Although we have carved out two exceptions to this general position, neither is applicable to this case. In In re Cement Antitrust Litigation, 688 F.2d 1297, 1303 (1982), aff'd. sub nom Arizona v. Ash Grove Cement Co., 459 U.S. 1190 (1983), this court held that in a supervisory mandamus case, which the court defined as those petitions which raise issues that could potentially have a profound effect on the administration and operation of the courts, (i.e. a challenge to district court's recusal order), the petitioner need only demonstrate that failure to issue the writ will result in financial loss or other actual injury in order to satisfy the second prong of Bauman. Unlike the court in Cement Litigation, we are not faced with a petition that is calling upon us to exercise our supervisory mandamus authority; rather, Plastic Science's petition only concerns the manner in which one district court will hear a case.

In Varsic v. United States District Court, 607 F.2d 245, (9th Cir. 1979), this court was faced with an in forma pauperis petitioner who was litigating to secure his sole source of income. The court decided to issue a writ to correct the trial court error. The court in Varsic reasoned that in this exceptional situation, the severe prejudice that would result from the inevitable delay which would accompany a probable second trial supported departure from the general rule and issuance of the writ. Id. at 252. In contrast, Plastic Science cannot show that it faces the same degree of potential damage that confronted the petitioner in Varsic. Thus, Plastic Science has failed to demonstrate that failure to issue the writ will result in damage or prejudice not remediable on appeal.

Plastic Science's claim that the district court's finding of waiver manifests a persistent disregard of the Federal Rules also lacks merit. There is no evidence in the record which suggests that this district court previously has committed any of the alleged errors. Absent such evidence, we have no basis for concluding that the district court has shown a persistent disregard for the Federal Rules.

Finally, while Plastic Science contends that the district court order raises new and important issues of first impression, it offers no support for this proposition. A review of the legal questions at issue reveals that Plastic Science's bare allegation is without merit.

The courts have definitively determined that the issue of whether a counterclaim is compulsory or permissive is a question of law, see Springs v. First National Bank of Cut Bank, 835 F.2d 1293, 1295 (9th Cir. 1988), Pochiro v. Prudential Insurance Co., 827 F.2d 1246, 1249 (9th Cir. 1987), and that a parties' stipulation as to a matter of law is not binding on the courts. See Swift & Co. v. Hocking Valley Ry. Co., 243 U.S. 281, 289 (1917); Avila v. I.N.S., 731 F.2d 616, 620 (9th Cir. 1984). Additionally, the courts have set forth clear standards for determining whether a counterclaim is permissive or compulsory, see Albright v. Gates, 362 F.2d 928, 929 (9th Cir. 1966), Harris v. Steinem, 571 F.2d 119 (2nd Cir. 1978), and have frequently grappled with the question of jury waiver after a timely demand for a jury trial has been made. See Palmer v. United States, 652 F.2d 893, 896 (9th Cir. 1981); Millner v. Norfolk & W.R. Co., 643 F.2d 1005, 1011 (4th Cir. 1981).

While it may be true that the precise question of whether a court may infer waiver of a jury trial from a stipulation that evinces an intent to preserve the right to jury trial may not have been previously decided by the courts, such an inquiry falls far short of the significant, novel issues that previously have supported the issuance of a writ. See Schlaugenhauf v. Holder, 379 U.S. 104, 111 (1964) (Supreme Court vacated denial of writ of mandamus where the lower courts were called upon to decide the significant, previously unaddressed question of whether Rule 35 permits a district court to order a physical or mental examination of a defendant); see also National Right to Work Legal Defense v. Richey, 510 F.2d 1239, 1243 (1975) (mandamus relief to clarify novel questions of law only appropriate where decision will serve to clarify a question that is likely to confront a number of lower court judges before appellate review is possible). Concluding that the waiver issue in this case is a question of first impression would reduce practically all issues which are not "on all fours" with controlling authority to matters of first impression. Bauman clearly does not envision such a result.

CONCLUSION

The petition for writ of mandamus is denied.