F I L E D

United States Court of Appeals

Tenth Circuit

PUBLISH

AUG 3 1999

UNITED STATES COURT OF APPEALS

PATRICK FISHER

TENTH CIRCUIT

Clerk

FISCHER IMAGING CORPORATION,

v.

Plaintiff-CounterDefendant-Appellant,

GENERAL ELECTRIC COMPANY,

No. 98-1225

Defendant-CounterClaimant-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 97-WY-2529-WD)
Richard P. Holme, Davis, Graham & Stubbs, LLP, Denver, Colorado for PlaintiffCounter-Defendant-Appellant.
Terry M. Grimm, (John P. Carreon and Rachel M. Janutis, Winston and Strawn, Chicago,
Illinois and George B. Curtis, Gregory J. Kerwin, Patricia E. Foley, Gibson, Dunn &
Crutcher, LLP, Denver, Colorado, with him on the briefs), Winston and Strawn, Chicago,
Illinois for Defendant-Counter-Claimaint-Appellee.
Before BALDOCK, HOLLOWAY, and HENRY, Circuit Judges.
BALDOCK, Circuit Judge.
This dispute arose from a purchase agreement between Plaintiff Fischer Imaging

Corporation (Fischer) and Defendant General Electric Company (GE) for the
manufacture and purchase of medical imaging devices called Tilt C units. Fischer
brought this diversity action in federal district court, seeking a declaratory judgment to
determine a reasonable price for the Tilt C units. See 28 U.S.C. 1332(a), 2201.
GE filed a counterclaim seeking specific performance of the production requirements
contained in the purchase agreement. Fischer timely filed a demand for a jury trial which
the district court struck upon GEs motion. The district court, however, exercised its
discretion pursuant to Fed. R. Civ. P. 39(c) and empaneled an advisory jury.
The advisory jury returned a verdict setting the reasonable price at $157,400 per
Tilt C unit. Choosing not to follow the advisory jurys verdict, the district court issued an
Order and Judgment setting the reasonable price at $122,648 per unit for Tilt C units
delivered in 1998 and $126,082 per unit for Tilt C units delivered in 1999, and ordering
Fischer to perform its obligations under the contract. Fischer appeals on the sole ground
that the district court improperly struck its jury demand. To remedy the alleged error,
Fischer seeks a remand directing the district court to instate the advisory jurys verdict as
the judgment in this case. Our jurisdiction arises under 28 U.S.C.
1291. We reverse and remand for a new trial.
I. Background
On August 29, 1994, the parties entered into an agreement for the sale of Tilt C
units. The units are used in a medical imaging product produced by GE. The initial
2

purchase agreement expired on December 31, 1997, but GE retained the unilateral power
to extend the term of the agreement for two years. On June 25, 1997, GE provided
Fischer with notice of its intent to exercise its option to extend the agreement. The initial
contract contained pricing provisions, but these provisions did not apply to the extended
term of the contract. Fischer indicated to GE that it would not order materials or
schedule production of the Tilt C units under the extended term of the contract until the
parties reached an agreement on the price per unit. The parties attempted unsuccessfully
to negotiate a new price. As a result, Fischer filed the instant declaratory action asking
the district court to determine a reasonable price for the units under Colo. Rev. Stat.
4-2-305(1). Under Colorados Commercial Code, parties may conclude a contract for
sale even though the price is not settled. In such a case, the price is a reasonable price at
the time for delivery . . . . Colo. Rev. Stat. 4-2-305(1). GE counterclaimed for specific
performance of the extended agreement. The district court struck Fischers jury demand,
tried the case with an advisory jury, did not follow the advisory jurys verdict, set the
price for the units and ordered Fischer to produce the units according to the terms of the
contract.
II. Analysis
At issue in this appeal is whether the Seventh Amendment of the United States
Constitution entitles Fischer to a jury determination of a reasonable price under the
extended term of the contract for the Tilt C units. Fischer argues that the relief it seeks is
3

legal in nature, requiring a trial by jury if properly requested. In response, GE argues that
Fischers claims sound in equity and do not accord Fischer the right to a jury trial. We
review de novo the trial courts decision to strike Fischers jury demand. See Manning v.
United States, 146 F.3d 808, 811 (10th Cir. 1998).
The Seventh Amendment provides that [i]n suits at common law, where the value
in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved . . .
. U.S. Const. amend. VII. The Supreme Court has interpreted the Seventh Amendment
as requiring trial by jury if the action involves rights and remedies of the sort
traditionally enforced in an action at law, rather than in an action in equity or admiralty.
Pernell v. Southall Realty, 416 U.S. 363, 375 (1974). The Seventh Amendment right to a
jury trial applies not only to common law causes of action, but also to statutorily created
ones. See City of Monterey v. Del Monte Dunes, 119 S.Ct. 1624, 1638 (1999).
To resolve whether the right of trial by jury attaches to a particular cause of action,
we apply a two-step analysis. See id. First, we determine whether the cause of action
was tried at law in 1791, or is analogous to such a cause of action. Markman v.
Westview Instr., Inc., 517 U.S. 370, 376 (1996). To determine whether a statutory
cause of action is more analogous to cases tried in courts of law than to suits tried in
courts of equity or admiralty, we examine both the nature of the statutory action and the
remedy sought. Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 348 (1998).
The nature of the remedy is the more important factor. See Granfinanciera, S.A. v.
4

Nordberg, 492 U.S. 33, 42 (1989). Second, [i]f the action in question belongs in the law
category, we then ask whether the particular trial decision must fall to the jury in order to
preserve the substance of the common-law right as it existed in 1791. Del Monte Dunes,
119 S.Ct. at 1638 (internal citations omitted).
Fischers pursuit of this action under the Declaratory Judgment Act does not alter
Fischers rights under the Seventh Amendment. See Manning, 146 F.3d at 811. The
Declaratory Judgment Act does not create a right to a jury trial, but merely preserves the
right where one already exists. Id. Declaratory relief may be legal or equitable depending
on the basic nature of the underlying issues. United States v. New Mexico, 642 F.2d
397, 400 (10th Cir. 1981).
A. Nature of the Statutory Action
Applying these principles, we look first to the nature of 4-2-305, which provides
as follows:
(1) The parties if they so intend can conclude a contract for sale even though the
price is not settled. In such a case the price is a reasonable price at the time for
delivery if:
(a) Nothing is said as to price; or
(b) The price is left to be agreed by the parties and they fail to agree . . .
Colo. Rev. Stat. 4-2-305. At the time the Seventh Amendment was adopted no parallel
action to 4-2-305 existed. Indeed, at common law an agreement omitting the price and
failing to provide a definite method for ascertaining a price was void and unenforceable.
See Boatright v. Steinite Radio Corp., 46 F.2d 385, 388 (10th Cir. 1931); Red Wing Shoe
5

Co. v. Shepherd Safety Shoe Corp., 164 F.2d 415, 418 (7th Cir. 1947). Today, however,
4-2-305 salvages an agreement where the parties fail to include a price, if the parties
intend to be bound. Neither party here contends that they did not intend to be bound.
Therefore, the parties have an enforceable contract under
4-2-305.
Determining whether a contract action would have historically been tried to a jury
is difficult and even at times impossible. 5 Arthur L. Corbin, Corbin on Contracts,
1103 (1964). Generally, breach of contract actions claiming monetary damages were
tried to a jury. See Chauffeurs, Teamsters, and Helpers Local No. 391 v. Terry, 494 U.S.
558, 569-70 (1990). By contrast, actions seeking reformation of a contract were tried to
the judge, see 9 Wright & Miller, Federal Practice and Procedure Civil 2d, 2316 (1982),
as were actions seeking specific performance of a contract. Id. at 2309. The foregoing
suggests that the nature of the remedy that the plaintiff seeks in a contract action
determines whether the plaintiff is entitled to a jury trial. Thus, we must determine
whether the remedy sought by Fischer under 4-2-305 is legal or equitable in nature.
B. Remedy Sought
The remedy in this case is difficult to pigeonhole into one distinct category. The
posture of the case as a declaratory action further complicates the analysis. Fischer
argues that the claim is a straightforward one for money damages. The case is not so
simple. Prior to filing suit, Fischer refused to perform under the extended term of the
6

contract. As a result, Fischer had yet to suffer a loss when it filed the declaratory action.
Therefore, one of the traditional purposes associated with legal relief, compensation for
damages does not apply. See Feltner, 523 U.S. at 352 (1998) (traditional purposes of
legal relief include compensation and punishment); see also 5 Corbin, supra 990
(damages nearly always award reparation in money for harm already done). Such a
situation is not unusual in a declaratory action, however, because normally the purpose of
such a cause is to obtain relief before a wrong has been committed or a loss incurred. See
5 Corbin supra 991.
In contrast, GE attempts to characterize the remedy as one of reformation of a
contract.1 Reformation is an equitable remedy used to reframe written contracts to
reflect accurately [the] real agreement between contracting parties when, either through
mutual mistake or unilateral mistake coupled with actual or equitable fraud by the other
party, the writing does not embody the contract as actually made. Blacks Law
Dictionary 1281 (6th ed. 1990); see also Mutual of Omaha Ins. Co. v. Russell, 402 F.2d
339, 344 (10th Cir. 1968). GE argues that Fischer is actually seeking reformation of the
GE also attempts to characterize the relief as specific performance because a
reasonable price under the extended term of the contract has value to Fischer only if the
parties perform. Fischers claim cannot be characterized as one that seeks specific
performance, however, because the record indicates that GE never breached the contract
or indicated that it would not perform under the extended term of the contract. Indeed,
GE had placed an order for 75 additional Tilt C units prior to the initiation of this lawsuit.
Furthermore, GEs counterclaim for specific performance does not deprive Fischer of its
right to a jury trial on any legal claims. See Dairy Queen v. Wood, 369 U.S. 469, 472-73
(1962).
1

contract because Fischer introduced evidence of Fischers own erroneous expectations of

higher gross margins and miscalculations regarding initial pricing of the goods when
Fischer entered into the original contract.
GEs argument misses the mark. The current dispute is over the extended term
contract, not the original contract. The extended term contract cannot be rewritten to
express the parties actual intent regarding the price, because the parties failed to reach
any agreement as to price. What Fischer asked the district court to do was not to reform
the contract to reflect what the parties actually intended, but to set a reasonable price. In
order for the district court to do so, Fischer introduced evidence regarding a reasonable
price. Fischer introduced the evidence of false assumptions and miscalculations in the
original pricing scheme to show that the pricing provisions in the original contract should
not just be grafted onto the extended term contract. The introduction of this evidence did
not transform the remedy sought into reformation of the contract.2
In arguing that the remedy should be characterized as reformation or other
equitable relief, GE relies heavily on a Nebraska district court case, Burlington Northern
R.R. Co. v. Nebraska Public Power District, 931 F.Supp. 1470 (D. Neb. 1996), which,
importantly, does not involve setting a reasonable contractual price under U.C.C.

We also note that in cases involving a unilateral mistake, the mistake must be
coupled with some sort of fraud by the other party in order to justify the extraordinary
remedy of reformation of the contract. See id. at 344-45. Neither party has alleged
misrepresentations or fraud by GE.
2

 2-305.3 In Burlington, both parties sought declaratory relief regarding the pricing
mechanism in an extremely complex contract for the transportation of coal. Id. at 1473.
Because the term of the contract was for several years, the contract provided two methods
to adjust the price if a change in circumstances warranted an adjustment, including a
method to amend the contract. Id. at 1480. In other words, the contract contained a
specific method for setting a new contract price. If the parties could not agree on whether
an adjustment was warranted, or on an amended price, the contract provided that a
declaratory action could be brought to decide the disputes. Id. at 1482. The district court
characterized the suit as most like a suit for specific performance of a contract coupled
with a suit for reformation of a contract. Id. at 1483.
Burlington differs significantly from this case, however, because the contract in
Burlington provided a method for amending the contract. Unlike the present case, the
parties in Burlington contemplated that a reformation of the contract might be necessary.
The contract provided that unforeseen changes in circumstances in the future might
cause the Effective Rate to no longer reflect the parties intentions and thus the parties
desire to provide a procedure for amending the contract. Id. at 1483. The district court
equated these provisions with reformation of the contract. Id. While that analysis may be
quite sound, we have no parallel term providing for amendment of the present contract.
No party cites to, nor could the court find, an opinion by any court expressly
addressing the precise issue raised in this case, that is, whether a right to a jury attaches
under 2-305 of the U.C.C.
3

The district courts decision in Burlington was also based on the complexity of the
task of determining a price.4 The district court was not only required to determine the
reasonable cost to the defendant, but was also required to interpret numerous terms in
the contract.5 Id. The district court characterized the nature of the undertaking as
tantamount to plenary interpretation of the contract, a task traditionally left to judges.
See id. (quoting Markman, 370 U.S. at 381).
Unlike Burlington, our case is not dependent on, nor does it involve, interpreting a
plethora of contractual terms. Determining the reasonable price of the Tilt C units may
require consideration of the parties course of dealing, course of performance, and the fair
market value of the goods. 1 J. White and R. Summers, Uniform Commercial Code,
3-8, (1995). The determination may also require consideration of production costs,
including materials and labor. See Kuss Machine Tool & Die Co., Inc. v. El-tronics, 143
A.2d 38, 40 (Penn. 1958). These determinations, however, do not require a wholesale
interpretation of the terms of the contract. See Markman, 370 U.S. at 381-82 (judges not
juries, ordinarily construe written documents). The determination of a reasonable price
It took the district court six days of hearings just to clarify the claims at issue in
that case.
4

For example, the district court would have to interpret contract terms including
the Base Rate, the Effective Rate,(which required the construction of a formula set
forth in the contract) reasonable profit, assuming honest and efficient management,
costs directly related to the services provided by the plaintiff, shall neutralize the
effects of inflation and other terms which have no plain meaning save for the meaning
that judicial construction provides. Burlington, 931 F.Supp. at 1484.
5

10

is a relatively straightforward factual inquiry which does not involve the type of highly
discretionary calculations traditionally performed by judges. Tull, 412 U.S. at 427
(determining amount of civil penalties under Clean Water Act involved highly
discretionary calculations that take into account multiple factors, and, as such, was task
best left to judges). For these reasons, we find GEs reliance on Burlington unpersuasive.
After considering the parties arguments regarding legal versus equitable relief, it
is apparent that this case does not fit neatly into either category. In the hopes of resolving
the dilemma, we next consider how this case might have come to the court absent
declaratory judgment procedures. See 9 Wright & Miller, Federal Practice and
Procedure, Civ. 2d 2313. Without a declaratory judgment action, Fischer could have
delivered the Tilt C units and, upon GEs refusal to pay the demanded price, sued GE for
breach of contract seeking monetary damages in the amount of a reasonable price for the
goods. In such a case, Fischer would have been entitled to have a jury determine
damages. See Terry, 494 U.S. at 569-70 (unless restitutionary or incidental to or
intertwined with injunctive relief, monetary awards constitute legal relief). In the
alternative, Fischer could have delivered the Tilt C units, invoiced at a price GE believed
was unreasonable, and GE could have paid the invoice price and then sued Fischer for
breach of contract. In such a case, the damages would be the difference between the
invoice price and the contract price, which 4-2-305 provides is a reasonable price.
Likewise this claim for monetary damages would be triable to a jury.
11

If Fischer failed to deliver the Tilt C units, GE could cover and sue Fischer for
breach of contract, seeking the difference between the contract price, as set by 4-2-305
as a reasonable price, and the cover price, as well as any incidental or consequential
damages associated with effecting cover. See Colo. Rev. Stat. 4-2-712. Such a suit for
money damages would be tried to a jury. If GE chose not to cover, GE could sue for
breach of contract seeking the difference between the market price at the time of the
breach and the contract price, i.e., a reasonable price, plus any consequential or incidental
damages. See Colo. Rev. Stat. 4-2-713. Again, this action for money damages would
be tried to a jury. Finally, if GE was unable to cover because the goods were unique, GE
could sue under Colo. Rev. Stat. 4-2-716 for specific performance for delivery of the
Tilt C units. Because specific performance is an equitable remedy, the case would not be
tried to a jury. In a suit for specific performance, a determination of a reasonable price
would be not necessary to the disposition of the claim.6 As illustrated above, in all the
Although in a suit by the buyer for specific performance of a contract, the seller
could file a counterclaim seeking a declaratory judgment to determine a reasonable price
for the goods, setting a reasonable price would not be necessary to a determination of
whether the buyer was entitled to specific performance. The focus of such an inquiry is
the uniqueness of the goods, not the price to be paid for them. See Colo. Rev. Stat. 4-2716. The sellers counterclaim in such a case would place the parties in a similar
position to the present case, that is, a declaratory judgment to determine a reasonable
price. This is so because no duty to pay for the goods would arise until the goods were
delivered; therefore, no breach of contract by the buyer would arise until after delivery
and after a refusal by the buyer to pay the sellers invoiced price. Thus, at the time the
seller brings the counterclaim, the seller would not have suffered a loss and would be
seeking prospective relief. Following our analysis above, such a counterclaim would
(continued...)
6

12

scenarios where U.C.C. 2-305 can come into play, the relief sought is legal in nature.
See Terry, 494 U.S. at 569-70. Accordingly, because Fischers statutory suit, if not
brought as a declaratory action, would sound in contract and seek legal relief, we
conclude that the 4-2-305 suit is an action at law. Cf., Johnson v. Fidelity & Casualty
Co. of N.Y., 238 F.2d 322, 324-25 (8th Cir. 1956) (insurer entitled to jury trial in
declaratory judgment action to determine coverage under insurance policy); Hargrove v.
American Cent. Ins. Co., 125 F.2d 225, 228 (10th Cir. 1942) (same).
C. Issue for Jury
Having determined that Fischers 4-2-305 statutory action was an action at law,
we next consider whether the particular issue was proper for determination by the jury.
Specifically, we must decide whether the determination of a reasonable price must be
resolved by the jury in order to preserve the right to a jurys resolution of the ultimate
dispute. Markham, 517 U.S. at 377. To do so, we look to history to determine whether
the issue or analogous ones, were decided by judge or by jury in suits at common law at
the time the Seventh Amendment was adopted. Del Monte Dunes, 119 S.Ct. at 1643. If
history provides no clear answer, we look to precedent and functional considerations.
Id.
In this case, we can find no precise analogue for this issue at common law because

(...continued)
arise in contract and seek legal relief.
6

13

the courts were not in the business of determining a price if the parties failed to include
the price term in the agreement. See Boatwright, 46 F.2d at 388. A similar issue arose,
however, in quasi-contract7 actions where, after goods have actually been delivered and
accepted, . . . the defendant is bound to make reasonable compensation therefor, whether
the agreement under which the benefit was received was too indefinite for enforcement or
not. 1 Corbin, supra 99. Claims for quasi-contract arose and developed under the
common law writ of assumpsit and, as a result, were historically brought in the courts of
law. See 1 Dan B. Dobbs, Law of Remedies 4.2(3) (1993); see also Austin v. Shalala,
994 F.2d 1170, 1176-77 (5th Cir. 1993) (quasi-contract action requires jury trial because
it falls under the common law writ of general assumpsit, a legal action at common law).
Generally, in quasi-contract actions courts have submitted the question of the value of the
goods or services to the jury. District of Columbia v. Campbell, 580 A.2d 1295, 1303
(D.C. App. 1990) (question of value of services in quantum meruit action submitted to
jury); Baker v. Estate of Mary Brown, 294 S.W.2d 22, 27 (Mo. 1956) (same); Rodgers v.
Levy, 199 S.W.2d 79, 81 (Mo. Ct. App. 1947) (reasonable value of labor and materials
submitted to jury in quantum meruit suit); Paper Stylists, Inc. v. Fitchburg Paper Co., 9
F.R.D. 4, 5 (N.D. N.Y. 1949) (right to jury in quasi-contract action seeking money

Quasi-contract requires: (1) the plaintiff to confer a benefit to the defendant; (2)
that defendant has knowledge of or acquiesces to; and (3) by allowing the defendant to
retain the benefit without payment, inequity would result. See DCB Const. v. Central
City Dev. Co., 965 P.2d 115, 119 (Colo. 1998).
7

14

damages); Foulger v. McGrath, 95 P. 1004, 1005 (Utah 1908) (reasonable value of labor
and material used to construct buildings properly submitted to jury on theory of quantum
meruit); Toole v. Bearce, 39 A. 558 (Me 1898) (reasonable price was question for jury to
determine in quantum meruit action); but see DCB Const. v. Central City Devel. Co., 940
P.2d 958, 961-62 (Colo. App. Ct. 1996) (quasi-contract claim for unjust enrichment tried
to judge). Thus, the comparison with quasi-contract actions supports our conclusion that
a reasonable price under 2-305 is a question for the jury. We next turn to precedential
and functional considerations.
A number of courts have submitted the question of a reasonable price under
U.C.C. 2-305, and similar U.C.C. provisions, to the jury, providing further support for
the conclusion that determining a reasonable price is properly a jury question. See Havird
Oil Co., Inc. v. Marathon Oil Co., Inc., 149 F.3d 283, 290 (4th Cir. 1998) (question of
whether sellers price was reasonable was submitted to jury, but verdict for the plaintiff
set aside by court because of insufficient evidence of unreasonableness); Adams v. G.J.
Creel & Sons, Inc., 465 S.E.2d 84, 86 (S.C. 1995) (question of reasonable price is
generally for jury); Grumman Credit v. Rivair Flying Service, 845 P.2d 182, 186 (Okla.
1992) (question of whether sale was commercially reasonable under U.C.C. 9-504
submitted to jury); W.I. Snyder Corp. v. Caracciolo, 541 A.2d 775 (Pa. Super. Ct. 1988)
(whether seller made a reasonable effort to resell goods at a reasonable price is question
for jury); Landrum v. Devenport, 616 S.W.2d 359, 362 (Tex. Ct. App. 1981) (where
15

buyer and seller of limited edition automobile did not specify price, question of
reasonable price was for the jury); TCP Ind., Inc. v. Uniroyal, Inc., 661 F.2d 542, 549 (6th
Cir. 1981) (determination of whether price set by seller was commercially reasonable was
question for jury); Standard Coal Co. v. Stewart, 269 P. 1014 (Utah 1928) (pre-UCC case
holding that reasonable price is question for jury);
Finally, we look to functional considerations. In actions at law predominantly
factual issues are in most cases allocated to the jury. Del Monte Dunes, 119 S.Ct. at
1643; see also Baltimore & C. Line v. Redman, 295 U.S. 654, 657 (1935). Allowing the
jury to decide factual issues preserves the right to a jurys resolution of the ultimate
dispute. Del Monte Dunes, 119 S.Ct. at 1644 (internal quotations omitted). The issue
in the present case, the reasonable price of goods, is a question of fact, not one of law.
1 Corbin supra 99; see also Great Western Distillery Products, Inc. v. Wathen Distillery
Co., 74 P.2d 745, 747 (Cal. 1937) (a reasonable price is a question of fact dependent on
the circumstances of each particular case). Evidence submitted to determine a
reasonable price may include the parties course of dealing, course of performance, usage
of trade, or the fair market value of the goods, or a formula agreed upon by the parties.
See 1 White and Summers, Uniform Commercial Code 3-8 (1995). Consideration of
this evidence does not require a judge to construe a contract. See Markman, 517 U.S. at

16

381. Thus, we see no reason to remove this question from the province of the jury.8
In light of the relevant historical, precedential and factual considerations, we
conclude that the question of a reasonable price for goods under 4-2-305 is a question
for the jury. Accordingly, the district court erred by striking Fischers jury demand.
III. Advisory Jury
Even though the district court concluded that Fischer was not entitled to a jury
trial, the district court exercised its discretion under Fed. R. Civ. P. 39(c) and tried the
case with an advisory jury. Now that we have concluded that the issue of a reasonable
price should have been submitted to the jury, we must determine how the district court
should proceed on remand. Fischer does not request a new trial. Instead, Fischer argues
that the verdict of the advisory jury should be substituted for the district courts judgment.
We conclude that this case must be remanded for a new trial.
Fischer timely requested a trial by jury, and we hold today that Fischer was entitled
under the Seventh Amendment to a trial by jury. An advisory jury is not the equivalent of

The U.C.C. does not suggest a different result. The official comment to 2-201
states that the trier of fact determines a reasonable price. Nothing in 2-305 conflicts
with that statement. Section 2-305 does not include the term by the court in reference
to the setting of a reasonable price. In contrast, the drafters expressly instructed in
2-302(1) that the court, as a matter of law, determines whether a contract was
unconscionable. Thus, where the U.C.C. drafters so intended, they expressly provided
that an issue was for the court and not the jury. Therefore, under the maxim of statutory
construction expressio unius est exclusio alterius, we assume that had the drafters
intended to include by the court in 2-305, they would have done so. See United
States v. Oberle, 136 F.3d 1414, 1423-24 (10th Cir. 1998).
8

17

a Seventh Amendment jury. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 337 n.24
(1979) (an advisory jury . . . would not in any event have been a Seventh Amendment
jury); see also 8 James Wm. Moore, Moores Federal Practice, 39.40[4] (1999) (use of
advisory jury does not satisfy a partys constitutional right to a jury trial). Therefore, we
may not replace Fischers Seventh Amendment right to a jury trial with an advisory jurys
verdict. See Pradier v. Elespuru, 641 F.2d 808, 811 (9th Cir. 1981).
IV. Conclusion
For the foregoing reasons, the judgment of the district court is REVERSED and
the case REMANDED for a NEW TRIAL.9

The respective motions of the parties for leave to file supplemental briefs are
hereby GRANTED.
9

18