Costinel v. Tidewater, Inc. et al
ORDER AND REASONS granting 107 Motion to Strike Jury Demand; denying as moot 116 Motion for Leave to File Reply. Signed by Judge Carl Barbier on 9/13/2011. (clm, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TIDEWATER, INC., and T.
SECTION: “J” (3)
ORDER AND REASONS
Before the Court is Plaintiff’s Motion to Strike Jury Demand
(Rec. Doc. 107) and Defendants’ Opposition (Rec. Doc. 114), on
supporting memoranda without oral argument.
Upon review of the
motion, the legal memoranda, the record, and the applicable law,
the Court finds that the motion should be GRANTED.
Federal Rule of Civil Procedure 39 provides, in pertinent
part, that when a jury trial has been demanded, the trial must be
by jury unless the parties agree to a nonjury trial, or “the
court, on motion or on its own, finds that on some or all of
those issues there is no federal right to a jury trial.”
Plaintiff demanded a jury trial in his complaint.
Rec. Doc. 1,
However, the Court may determine whether as to any issue
there is the federal right to a jury trial.
F.R. CIV. P.
Further, the Court may make such a finding upon its
own motion, see id., so the fact that the Magistrate Judge has
disallowed amendment to the complaint to remove the jury demand
is of no moment.
Therefore, whether this Court conducts the
trial as a jury or bench trial depends upon the existence vel non
of the federal right to a jury trial.
Jury trials have historically been excluded for admiralty
Becker v. Tidewater, Inc., 405 F.3d 257, 259 (5th Cir.
Moreover, “it is uncontested that admiralty jurisdiction
gives no right to a jury trial.”
Rachal v. Ingram Corp., 795
F.2d 1210, 1216 (5th Cir. 1986).
There are exceptional
circumstances in which a case involving admiralty claims may
involve the right to a jury trial.
First, where the plaintiff
brings a Jones Act claim, the mere fact that it is appended to an
admiralty claim does not defeat the statutory right to a trial by
jury applicable to Jones Act claims.
See id. at 1213 (“When
non-jury admiralty claims are joined in the same action, they are
treated as pendent to the Jones Act claim, and are tried together
However, in this case, the Court in its
Order and Reasons (Rec. Doc. 44) dismissed Plaintiff’s Jones Act
claims; thus any putative right to a jury trial cannot be based
on the Jones Act statutory grant.
Second, where the Plaintiff specifically invokes the federal
court’s diversity jurisdiction in his complaint, the right to
trial by jury under the Seventh Amendment exists.
Luera v. M/V
Alberta, 635 F.3d 181, 188 (5th Cir. 2011).
However, in this
case, Plaintiff did not invoke diversity jurisdiction in his
See Rec. Doc. 1.
The existence of diversity
jurisdiction “in fact” is unavailing.
See Becker v. Tidewater,
Inc., 405 F.3d 257, 259 (5th Cir. 2005) (stating that “the
possible factual existence of diversity between parties does not
give rise to the legal existence of diversity jurisdiction.”).
Plaintiff, as the “master of his complaint,” had “the exclusive
power to invoke diversity jurisdiction.”
Therefore, in this
case, there is no right to trial by jury based on diversity.
Plaintiff argues that he designated his claims as admiralty
claims under Rule 9(h), and therefore Rule 38(e) denies the right
to a trial by jury on such claims cognizable only in admiralty.
Defendants argue that Plaintiff could not have properly made the
Rule 9(h) election because this case does not fall within
tests are not met.
Namely, the maritime “situs” and “nexus”
They argue that the situs test is not met
because Plaintiff was transiently on a vessel, and it is unclear
whether the alleged injury occurred on navigable water or land.
They argue that the nexus test is not fulfilled because
Plaintiff’s alleged contraction of malaria while he was a landbased worker is not maritime in nature.
Even if this is true,
such that Plaintiff did not invoke Rule 9(h), Defendants do not
have the right to a jury trial.
Plaintiff did not invoke
Plaintiff’s jury demand was based on its
Jones Act claims, which have been dismissed.
rendered in Cenac Towing Co., Inc. v. Neal, 2008 U.S. Dist. LEXIS
6381 (E.D. La. Jan. 29, 2008), which is cited by Defendants, is
inapposite here because in Neal the defendant had demanded a jury
trial in its answer.
Civil Action No. 07-1458, Rec. Doc. 28, at
Defendants in this case did not make a jury demand.
timely demand, they waived the right to a jury trial.
CIV. P. 38(d).
Further, the Court agrees with Plaintiff that Defendants are
not unfairly prejudiced by allowing Plaintiff to withdraw his
Defendants successfully moved for this Court to
dismiss Plaintiff’s Jones Act claims—the very claims that
previously formed the basis of Plaintiff’s right to jury trial.
Because Defendants successfully sought to remove the statutory
basis of Plaintiff’s right to jury trial, the Court is not
persuaded by their allegation that prejudice will result from
conversion of this trial to a bench trial.
It might be argued that conversion of a case from a bench
trial to a jury trial shortly before trial could be prejudicial.
However, the opposite does not follow.
It is difficult to
conceive how converting this case from a jury trial to a bench
trial will prejudice the Defendants at all.
Presumably, the same
witnesses and exhibits will be used at trial.
counsel will be relieved from preparing opening statements and
Some of the trial evidence may be presented
by deposition or stipulated reports, but this will hardly
prejudice the Defendants.
The outcome may have been different if Plaintiff had invoked
diversity jurisdiction in his complaint.
The court in Johnson
held that where the defendant had relied upon the plaintiff’s
jury demand, the court would protect the defendant’s right to
jury trial, where the plaintiff had invoked federal jurisdiction
based on the Jones Act and diversity of citizenship.
Penrod Drilling Co., 469 F.2d 897, 902-03 (5th Cir. 1972).
However, Plaintiff in this case invoked maritime jurisdiction and
the Jones Act.
The Jones Act claims were the only basis for the
right to a jury trial.
It was a statutory right, and it was
eliminated when this Court dismissed Plaintiff’s Jones Act
Thus Defendants cannot successfully claim reliance on
Plaintiff’s jury demand.
The Court holds that Defendants do not
have the right to a jury trial.
IT IS ORDERED that Plaintiff’s Motion to Strike Jury Demand
(Rec. Doc. 107) be and is hereby GRANTED and that this matter be
designated on the docket as a non-jury action.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to
File Reply (Rec. Doc. 116) is DENIED as moot.
New Orleans, Louisiana, this 13th day of September, 2011.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE