Cincinnati Insurance Company v. SunSouth Bank et al (JOINT ASSIGN)

Filing 48

OPINION AND ORDER: it is ORDERED that: (1) The 45 objection is overruled. (2) The 46 alternative motion for trial by jury is denied as moot. It is further ORDERED that this case is referred back to the magistrate judge for further proceedings. Signed by Honorable Judge Myron H. Thompson on 5/9/2016. (kh, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION
CINCINNATI INSURANCE
COMPANY,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
SUNSOUTH BANK,
Defendant.

CIVIL ACTION NO.
1:15cv498-MHT
(WO)

OPINION AND ORDER
Plaintiff Cincinnati Insurance Company filed this
lawsuit seeking a determination that it has no duty to
defend

certain

lawsuits

issued

to

2013.

After SunSouth’s deadline for demanding a jury

defendant

under

SunSouth

an

Bank

insurance
covering

policy
2012

to

trial on the complaint had passed, see Fed. R. Civ. P.
38(b)(1), SunSouth filed a counterclaim--with a jury
demand--for

breach

of

contract

involving

the

same

contract and a contract covering the following year.
This case is before the court on Cincinnati’s objection
to the United States Magistrate Judge’s order denying

Cincinnati’s motion to strike SunSouth’s jury demand.
Also before the court is SunSouth’s alternative motion
for

jury

trial

pursuant

to

Federal

Rule

of

Civil

Procedure 39(b), which is embedded in its response to
the objections.

Upon an independent and de novo review

of the record, the court concludes that the objections
should

be

overruled,

and

SunSouth’s

motion

for

jury

trial under Rule 39(b) should be denied as moot.
The court notes that there has been no ruling as
to--and it is unclear to this court at this time--which
factual issues in the case are covered by SunSouth’s
jury
jury.

demand

and

accordingly

must

be

tried

before

a

See generally LaMarca v. Turner, 995 F.2d 1526,

1545 (11th Cir. 1993).

If this case goes to trial, the

court will take up this issue prior to trial on an
appropriate pretrial motion.

2

***
Accordingly, it is ORDERED that:
(1) The objection (doc. no. 45) is overruled.
(2) The alternative motion for trial by jury (doc.
no. 46) is denied as moot.
It is further ORDERED that this case is referred
back to the magistrate judge for further proceedings.
DONE, this the 9th day of May, 2016.
/s/ Myron H. Thompson____
UNITED STATES DISTRICT JUDGE