                              In the
 United States Court of Appeals
                For the Seventh Circuit
                          ____________

No. 06-2935
IN RE:
    LINEE AEREE ITALIANE (ALITALIA),
                                                          Petitioner.
                          ____________
              On Petition for a Writ of Mandamus to the
                  United States District Court for the
             Northern District of Illinois, Eastern Division.
         No. 02 C 2858—Sidney I. Schenkier, Magistrate Judge.
                          ____________
   SUBMITTED AUGUST 7, 2006—DECIDED NOVEMBER 27, 2006
                          ____________


  Before POSNER, WOOD, and WILLIAMS, Circuit Judges.
  POSNER, Circuit Judge. Alitalia is the defendant in a breach
of contract suit in the federal district court in Chicago,
having been removed by Alitalia to that court from state
court under the Foreign Sovereign Immunities Act, 28
U.S.C. § 1602-1611; see id., § 1330(a), at a time when
Alitalia’s majority shareholder was the Italian government.
The Act entitles the instrumentality of a foreign government
to a nonjury trial. 28 U.S.C. § 1441(d); In re Air Crash Disaster
Near Roselawn, Indiana, 96 F.3d 932, 936 (7th Cir. 1996); Rex
v. Compania Pervana De Vapores, S.A., 660 F.2d 61, 63-64 (3d
Cir. 1981). But after removal, the Italian government
relinquished its majority shareholding and the plaintiffs
2                                                 No. 06-2935

then demanded a jury trial. The district court agreed.
Alitalia asked us to order the court to grant it a nonjury
trial, arguing that the sale did not take Alitalia out from
under the protection of the Act.
   Alitalia may well be right. Dole Food Co. v. Patrickson,
538 U.S. 468, 478-80 (2003), holds that whether the defen-
dant is a government instrumentality within the meaning of
the Foreign Sovereign Immunities Act is to be determined
when the suit is filed. It could be argued that since a
demand for a jury trial is made “after [rather than at] the
commencement of the action and not later than 10 days after
the service of the last pleading directed to [an issue triable
of right by a jury],” Fed. R. Civ. P. 38(b), changed circum-
stances after a suit was filed and removed could entitle the
plaintiff to demand and obtain a jury trial. But even if the
district court was wrong (as we need not decide)—even if it
was clearly wrong—mandamus requires not only a clear
error but one that unless immediately corrected will wreak
irreparable harm. In re Barnett, 97 F.3d 181, 183-84 (7th Cir.
1996); In re Rhone-Poulenc Rorer, 51 F.3d 1293, 1295 (7th Cir.
1995); In re Sterling-Suarez, 306 F.3d 1170, 1172 (1st Cir.
2002). Compelling Alitalia to submit to a jury trial would
not cause the company irreparable harm, because if it lost at
trial and succeeded in persuading us on appeal that the
Foreign Sovereign Immunities Act entitled it to a nonjury
trial, we would order a new trial—a nonjury trial. Matthews
v. CTI Container Transport Int’l, Inc., 871 F.2d 270, 282 (2d
Cir. 1989); Houston v. Murmansk Shipping Co., 667 F.2d 1151,
1154-55 (4th Cir. 1982); cf. Fisher v. Danos, 671 F.2d 904, 906
(5th Cir. 1982). Congress granted foreign states and their
instrumentalities a right to a nonjury trial as a matter of
comity, Dole Food Co. v. Patrickson, supra, 538 U.S. at 479; In
re Air Crash Disaster Near Roselawn, Indiana, supra, 96 F.3d at
947; Goar v. Compania Peruana de Vapores, 688 F.2d 417, 421-
No. 06-2935                                                   3

22 (5th Cir. 1982), to spare them the affront that proud
foreigners might feel at being judged by a jury of laymen,
especially as few foreign countries have civil juries.
   But that affront, as it would be rendered harmless by
denying any effect to the jury’s verdict if indeed the defen-
dant was entitled by statute to a nonjury trial, is not an
irreparable harm. And as for the possibility that deny-
ing mandamus would result in two trials, jury and bench,
and thus in added cost to Alitalia, such additional cost, even
if unrecoverable and so in a literal sense irreparable, is not
the kind of irreparable harm that justifies mandamus. First
Nat’l Bank of Waukesha v. FDIC, 796 F.2d 999, 1005-06 (7th
Cir. 1986). Postponing appeal to the end of a litigation,
rather than interrupting it in medias res with a mandamus
proceeding that would require this court to conduct inter-
locutory appellate review, is as likely to reduce as
to increase the total expense of the litigation. See McFarlin v.
Conseco Services, LLC, 381 F.3d 1251, 1257 (11th Cir. 2004);
Armendariz v. Penman, 75 F.3d 1311, 1316 (9th Cir. 1996) (en
banc); Carlenstolpe v. Merck & Co., 819 F.2d 33, 37 (2d Cir.
1987). For, depending on the outcome in the district court,
there may very well be no appeal from the final judgment.
In that event the mandamus proceeding will have
turned out to be a waste of resources—as it will even if there
is an appeal, should Alitalia prevail in the jury trial and the
appeal be by the plaintiffs.
  However, after the foregoing opinion was drafted and
approved by the panel, but before it was issued, the jury
trial (which had not been stayed) concluded with an
$8.5 million verdict in favor of the respondents. They ask us
to dismiss the mandamus proceeding as moot, on the
ground that Alitalia has an effective remedy at law, namely
an appeal from the judgment entered on the verdict. Alitalia
4                                                 No. 06-2935

opposes their motion, arguing that the case in the district
court is not yet concluded because Alitalia has filed
postjudgment motions—one of which asks the district court
to vacate the judgment and order a bench trial.
  Entry of final judgment in the district court ordinarily
provides a compelling reason for denying a petition for
mandamus to correct a preliminary ruling, in this case the
grant of a motion for trial by jury. (For an exception,
however, see In re Austrian, German Holocaust Litigation, 250
F.3d 156, 162-63 (2d Cir. 2001).) The reason is that an appeal
offers the party complaining of the ruling a better shot at the
relief it wants than mandamus would, because of the clear-
error and irreparable-harm requirements that limit grants of
mandamus. But as in Madej v. Briley, 371 F.3d 898, 899 (7th
Cir. 2004), when a petition for mandamus is rendered
defunct by the entry of a final judgment the petition can be
treated as an appeal. Rather than do that here, however—as
the merits have not been fully briefed and motions remain
pending in the district court—we shall simply deny the
petition for mandamus with a reminder to the magistrate
judge presiding in this case to reexamine the jury-trial issue
carefully in light of the Dole case, as he has been asked to do
by Alitalia in the postjudgment motion to which we re-
ferred.
                                                      DENIED.
No. 06-2935                                              5

A true Copy:
       Teste:

                       _____________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                USCA-02-C-0072—11-27-06
