Goldman, Sachs & Co. v. Honorable David N. Edelstein, U.S. D.J., and the Franklin Savings Bank in the City of New York , 494 F.2d 76 ( 1974 )

PER CURIAM:

On Friday, March 8, 1974, we heard the petition of Goldman, Sachs & Co. pursuant to 28 U.S.C. § 1651 and Rule 21, F.R.A.P., for a writ of mandamus directing Chief Judge Edelstein to stay an order entered on March 5, 1974, for the non-jury trial of Franklin Savings Bank v. Levy, et al. (71 Civ. 882) {“Franklin” herein) until completion of the jury trial of Welch Foods, Inc., et al. v. Goldman, Sachs & Co. (70 Civ. 4811) (“Welch” herein). Both cases raise identical claims based on substantially the same proof against Goldman, Sachs and are two of fifteen similar cases pending in the Southern District of New York which were consolidated for pretrial discovery purposes by the Judicial Panel on Multidistrict Litigation pursuant to 28 U.S.C.§ 1407.

Welch was the earliest case filed. It asserts by far the largest claim and from the outset has been treated by the court and by the parties as the “bellwether” case for trial. The record reveals that for many months prior to February 26, 1974, all parties in the consolidated cases proceeded on that basis, with discovery in Welch being conducted on a more accelerated schedule than in the other cases. Although the court, at a pretrial session on December 18, 1973, offered the possibility that Franklin might proceed first this suggestion was not seriously pursued. Throughout that hearing and indeed until toward the close of a further pretrial hearing held on February 26, 1974, the parties and the court, by their frequent references to procedures to be followed in presenting evidence to the jury, made it abundantly clear that Welch was to be tried first. Toward the close of the February 26, 1974, hearing, however, the judge announced for the first time that Franklin would be tried first before him without a jury. Defense counsel thereupon urged that, since a prior non-jury trial might have the effect of collaterally estopping Goldman, Sachs from exercise of its right to a jury trial of the same issues in Welch, the court should adhere to the schedule which had been previously understood by all. When the district court by memorandum opinion dated March 4, and entered on March 5, 1974, denied a stay in Franklin, defendants sought emergency relief here.

Regardless which party first demanded a jury trial in Welch, petitioners are clearly entitled as a matter of right to a jury trial of the issues in that ease. See Rule 38(d), F.R.Civ.P.; 5 Moore, Federal Practice f[ 38.45; Yates v. Dann, 223 F.2d 64, 66 (3d Cir. 1955) (“Such a demand was made by the plaintiff. It therefore ‘operated as a demand by the defendant also unless withdrawn by his consent, which was not given. Bass v. Hoagland, 5 Cir., 1949, 172 F.2d 205, 209, certiorari denied 1949, 338 U. S. 816, 70 S.Ct. 57, 94 L.Ed. 494.”).

Ordinarily one who asserts the important right to a jury trial in timely fashion is entitled to a stay of an earlier non-jury resolution of the issues which might collaterally estop exercise of his right to have them decided by the jury. Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959); Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962). However, in the context of this ease, where identical issues are the subject of both jury and non-jury trials in different suits, some doubt arises, by reason of views expressed by us recently in Crane Co. v. American Standard, Inc., 490 F.2d 332 (2d Cir. 1973), p. 343 n. 15, as to whether a prior non-jury trial of the same issues in one case will estop a jury resolution of them in another.

Mandamus, of course, is an extraordinary remedy, available only where, in aid of appellate jurisdiction, it is necessary to compel the district court to exercise authority when it is its duty to do so and to confine it to the lawful exercise of its lawful jurisdiction. See Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964); United States v. United States District Court for the S.D.N.Y., 334 U.S. 258, 68 S.Ct. 1035, 92 L.Ed. 1351 (1948). However, the Supreme Court, in Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 511, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959), removed any doubt regarding the propriety of using mandamus to protect a litigant’s right to a jury trial of issues, citing Judge Frank’s decision in Bereslavsky v. Caffey, 161 F.2d 499 (2d Cir. 1947). Indeed, in its later decision in Dairy Queen v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962), the Court implied that it is our duty to grant mandamus in aid of that right, stating (at p. 472, 82 S.Ct. at p. 897): “Our decision [in Beacon Theatres Inc. v. West-over, supra] reversing that case not only emphasizes the responsibility of the Federal Courts of Appeals to grant mandamus where necessary to protect the constitutional right to trial by jury but also limits the issues open for determination here by defining the protection to which that right is entitled in cases involving both legal and equitable claims.”

Here we are confronted with unique and exceptional circumstances which in our view warrant the issuance of emergency relief. For the district court to proceed with the non-jury trial of Franklin threatens destruction of Goldman, Sachs’ important collateral right to a jury trial. Aside from the fact that this alone might well have entitled it to appeal directly from the denial of a stay under the doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), no rational basis has been shown for not adhering to the anticipated order of trials or at least permitting the jury trial of the Welch case to proceed simultaneously with the non-jury trial of Franklin, a procedure frequently used in similar cases. See, e. g., Richland v. Crandall, 262 F.Supp. 538 (S.D.N.Y. 1967).

In order to foreclose the potential destruction of the defendant’s right to a jury trial in Welch, we on Friday, March 8, 1974, issued an order, entered on March 11, 1974, directing the district court to proceed first with the trial of Welch or in the alternative to consolidate Welch and Franklin for simultaneous trial.

This decision confirms the substance of the views expressed by us in open court upon the hearing of the petition.