Unpublished Disposition, 874 F.2d 816 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 874 F.2d 816 (9th Cir. 1987)

James LOWERREE; Milton Ourso, Jr.; William Laidlaw,Plaintiffs-Appelleesv.NORTHERN PACIFIC GAS & OIL, LTD.; Edward Mazur, Defendants,andRalph L. Muscatelli, Defendant-Appellant.

No. 87-6731.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 7, 1989.Decided April 26, 1989.

Before SCHROEDER, FLETCHER and TROTT, Circuit Judges.


In January of 1986, James Lowerree, Milton Ourso, Jr., and William Laidlaw brought this securities fraud and RICO action against Ralph Muscatelli and Edward Mazur. After some unproductive procedural problems, the trial was finally set for July 21, 1987 with Muscatelli as the sole remaining defendant.

On the day of trial, Leonard C. Kohn, counsel for Muscatelli, requested a continuance to the following day. It appears now that Muscatelli was not present at the trial because he was under the mistaken belief that the trial date was set for July 23, 1987 instead of July 21--although at the time the motion was made, counsel had no explanation for his absence. Thus, Judge Real denied the motion even though Muscatelli turned out to be the only witness for the defense. Judgment for money damages against Muscatelli was entered on October 5, 1987.

Muscatelli moved for a new trial on the grounds that his substantial rights were infringed by his absence from the trial and by the court's refusal to grant his attorney's request for a continuance. Judge Real denied this motion also.

Muscatelli appeals both the judgment entered against him and the denial of his motion for new trial.


The court's decision to deny the motion for continuance must be viewed in the light of the following colloquy that occurred at the opening of the trial:

MR. KOHN: Your Honor, the defendant is not present, Mr. Muscatelli.

THE COURT: I take it you're ready for him. He doesn't have to be present.

MR. KOHN: Yes, sir.

Then when it came time for the defense, the following exchange took place:

THE COURT: All right. Call your first witness.

MR. KOHN: Well, Your Honor, the problem I have is that my only witness, the defendant Ralph Moscatelli [sic] is not present. During the break today, I called my office, and they have not heard from him, and without him, I can't put on my case.

I realize that the Court must go forward, but I would request--

THE COURT: He was advised of the date, was he not?

MR. KOHN: Yes, Your Honor.

THE COURT: And the time:

MR. KOHN: Yes, Your Honor.

THE COURT: And he has chosen not to come. I'll hear your arguments.

MR. KOHN: Well, I would request for the record, a Motion to Continue until tomorrow, to see if I can locate Mr. Moscatelli [sic] to put on my case.

THE COURT: No, I think we should go forward. He has had sufficient notice, and he has not even seen fit to call here or call your office.

If there were some problem on the day of trial, where he couldn't get here, I could see doing that, but he hasn't even called. He hasn't called either here or your office to say, "I'm stuck on the freeway; I can't get in tomorrow, because I have an appointment," but he hasn't done that, and I think we ought to proceed.

All right, defense rests on that basis.1 

The decision to grant or deny a continuance is in the sound discretion of the trial court and will not be overturned except upon a showing of clear abuse. Rios-Berrios v. I & NS, 776 F.2d 859, 862 (9th Cir. 1985). In ascertaining whether a denial of a continuance was arbitrary or unreasonable, four factors are weighed on review: (1) appellants' diligence, (2) the usefulness of the continuance, (3) inconvenience to the court and opposing party, and (4) resulting prejudice to the appellants. United States v. 2.61 Acres of Land, More or Less, 791 F.2d 666, 670-671 (9th Cir. 1985). This inquiry is made on a case-by-case basis. Unger v. Sarafite, 376 U.S. 575, 589 (1964). "No one factor is dispositive; rather we evaluate and weigh each in order to determine whether the denial was arbitrary or unreasonable. Absent a showing of prejudice suffered by the appellant, however, this court will not disturb the ruling below." 2.61 Acres of Land, 791 F.2d at 671. Accordingly, each factor is discussed in turn.


We first consider the extent of Muscatelli's diligence, if any, in his efforts to ready his defense prior to the date set for hearing. United States v. Flynt, 756 F.2d 1352, 1358, amended in part 764 F.2d 675 (9th Cir. 1985). In this regard, Mr. Kohn permitted the trial to go forward without his client's presence. Essentially he answered "ready" when he could have raised a red flag. Although counsel indicated that Muscatelli was informed of the time and date of the trial, there is no showing that counsel was diligent in making sure his client would be in court, for example, by sending reminder letters, or having phone calls made by secretaries.


Because Muscatelli's testimony would have been relevant, there is no doubt that a continuance would have been useful. As far as counsel was concerned, however, he was under the impression that Muscatelli was informed as to the time and date of trial. But, at the time the motion was made, counsel did not and could not demonstrate that Muscatelli could be located by the next day. We have held a denial of a continuance to be proper when, inter alia, the moving party could not show that he could produce the prospective witness even if a continuance was granted. See, e.g., United States v. Hoyos, 573 F.2d 1111, 1114 (9th Cir. 1978).


Counsel requested a one-day continuance. Lowerree had already rested his case; therefore, no witnesses would have been inconvenienced. The only issues are whether the court would have been inconvenienced and whether Lowerree and his counsel would have been inconvenienced. The record is silent on this point. Although there would have been some inconvenience, it does not appear that a continuance would have been extremely troublesome.


It is probable that Muscatelli, the sole witness for the defense, was prejudiced by the court's refusal to continue the trial, but the extent of the prejudice has not been brought to our attention. The court, however, had the benefit of the Contentions of Fact and Law which were filed on behalf of Muscatelli and incorporated into the record by his counsel at the end of the trial. Thus the court was not without guidance as to Muscatelli's defense.


After considering the extent of Muscatelli's prejudice, along with the strength of his showing on the other factors, we find that Judge Real did not abuse his discretion. Judge Real displayed an amenability to granting a continuance if some problem had caused a delay and Muscatelli had called counsel or the court, but these were not the circumstances of this case. It is true that there could have been some prejudice, but it was not unreasonable for Judge Real to deny the continuance when a party who has been informed of the time and date of trial failed to appear. His counsel was present and was ready to proceed in his absence. Furthermore, the court as mentioned did have the benefit of Muscatelli's Contentions of Fact and Conclusions of law.

Muscatelli appeals from the district court's denial of his motion for new trial. Muscatelli, however, did not present any argument whatsoever on this issue in his brief or at oral argument. "The Court of Appeals will not ordinarily consider matters on appeal that are not specifically and distinctly argued in appellant's opening brief." Miller v. Fairchild Industries, Inc., 797 F.2d 727, 738 (9th Cir. 1986). See also Int'l Union of Bricklayers and Allied Craftsmen Local No. 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir. 1985). In certain cases, this court has discretion to consider improperly presented claims of error, where the appellee is not misled and the issue has been fully explored. See Ellingson v. Burlington Northern, Inc., 653 F.2d 1327, 1332 (9th Cir. 1981). This is not the case here. Instead, Muscatelli's brief is inexplicably void of any reference or argument as to why the motion for new trial was improperly denied. Laxity appears in this case at every turn. Accordingly, we decline to address this issue.


We AFFIRM the district court's denial of the motion for continuance, and we decline to consider the denial of the motion for new trial.


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


This two-page colloquy is conspicuously absent from Muscatelli's 75-page Excerpt of Record. Ninth Circuit rules require that when an appeal is based upon a challenge to a ruling or order, a copy of the relevant pages of the reporter's transcript at which the ruling or order and any necessary objection are recorded must be included in the excerpt. 9th Cir.R. 30-1.4(a). Counsel for Muscatelli should note for the purpose of future appeals that we have dismissed appeals for failure to provide an adequate record. See Palmerin v. City of Riverside, 794 F.2d 1409, 1414 (9th Cir. 1986)