Unpublished Disposition, 931 F.2d 59 (9th Cir. 1991)Annotate this Case
Joseph Gary GOULART, Plaintiff-Appellant,v.M/V SEA QUEST INC., et al, Defendants-Appellees.
United States Court of Appeals, Ninth Circuit.
Submitted April 19, 1991.* Decided April 25, 1991.
Before POOLE, D.W. NELSON and NOONAN, Circuit Judges.
Joseph Gary Goulart appeals pro se the judgment of the district court entered upon a jury verdict in favor of defendant M/V Sea Quest Inc. Goulart contends (1) the district court abused its discretion in failing to continue the trial in order for Goulart to retain an attorney, and (2) the jury instructions were erroneous. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Even in the context of criminal proceedings, the denial of a continuance requested by the defendant for the purpose of retaining counsel is reviewed only for an abuse of discretion, even when the denial allegedly offends due process. Ungar v. Sarafite, 376 U.S. 575, 589 (1964); see United States v. Bogard, 846 F.2d 563, 566 (9th Cir. 1988). The same standard of review applies in the context of civil litigation when an unrepresented party requests a continuance to engage counsel. Anderson v. Sheppard, 856 F.2d 741, 747-48 (6th Cir. 1988); see United States v. 2.61 Acres of Land, 791 F.2d 666, 670 (9th Cir. 1985). In determining whether the district court abused its discretion, we will consider four factors: (1) diligence of the party requesting the continuance, (2) whether the purpose of the continuance will be achieved, (3) inconvenience to the court, opposing parties and witnesses, and (4) prejudice to the requesting party caused by the denial of the continuance. Id. at 671.
The record shows the district court was tremendously accommodating of this pro se plaintiff. Goulart was represented by at least two attorneys at various times before trial. After the second attorney withdrew on November 14, 1988, the district court continued the pre-trial hearing 60 days for the express purpose of allowing Goulart to retain new counsel. On March 6, 1989, the court denied a further continuance, setting the trial for June 20 in order to give any counsel that might yet be retained sufficient time to prepare. The district court also instructed the defendant to submit a proposed pre-trial order. Ultimately, trial did not begin until September 6, 1989, but even then Goulart appeared pro se.
We find no abuse of discretion in the district court's refusal to grant further continuances. Goulart had three and a half months in which to engage counsel before the district court refused to delay trial further. Cf. Anderson, 856 F.2d at 748 (district court abused its discretion in refusing to grant continuance when civil litigant's attorney withdrew two days before scheduled trial date). At the end of this period, the court had every reason to believe that Goulart was not diligent in trying to retain counsel, and that additional continuances would be useless. The inconvenience to the district court, defendant and witnesses is manifest. Moreover, the district court's refusal to grant additional continuances cannot have prejudiced Goulart in any proximate manner, given Goulart's apparent lack of diligence or, if he was diligent, the inference that Goulart's case lacked sufficient merit to interest counsel.1 The denial of further continuances was a proper exercise of discretion. See 2.61 Acres of Land, 791 F.2d at 671.
On appeal, Goulart also challenges the instructions given to the jury. However, the record discloses no objection to the jury instructions, as required by Fed. R. Civ. P. 51. We therefore will not consider Goulart's arguments here. See Pau v. Yosemite Park & Curry Co., No. 89-15511, slip op. 2993, 3015 (9th Cir. Mar. 22, 1991).
The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4
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
Goulart argues he was prejudiced by the district court's request that an attorney for M/V Sea Quest, rather than Goulart, prepare a proposed pre-trial order. We disagree. The court's request in itself was not prejudicial, nor does it appear that any prejudice to Goulart resulted from the order ultimately adopted by the district court. We find no error in the court's request that an attorney, rather than a litigant untrained in the law, prepare a proposed pre-trial order which the district court intends to review prior to issuance