Oliver et al v. M/V Barbary Coast et al

Filing 298

Order granting 291 MOTION Reinstate Jury Demand made pursuant to Fed.R.Civ.P. 38. Jury Selection set for 12/4/2012 08:45 AM in US Courthouse, Courtroom 3A, 113 St. Joseph Street, Mobile, AL 36602 before Magistrate Judge William E. Cassady. Jur y Trial set for 12/10/2012 08:30 AM in US Courthouse, Courtroom 5A, 113 St. Joseph Street, Mobile, AL 36602 before Judge Kristi K. DuBose., Pretrial Conference set for 11/13/2012 12:00 PM in US Courthouse, Judge's Chambers, 113 St. Joseph Stre et, Mobile, AL 36602 before Judge Kristi K. DuBose. Amended Proposed Pretrial Order due 11/6/12. Parties to file written consent to jury selection by a Magistrate Judge on or before 11/6/12.. Signed by Judge Kristi K. DuBose on 9/26/2012. (Attachments: # 1 Standing Pretrial Order, # 2 Consent to Jury Selection) (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MARC E. OLIVER, d/b/a GULF COAST
ENVIRONMENTAL AND RECOVERY,
and T.M. JEMISON CONSTRUCTION
CO. INC. d/b/a JEMISON MARINE, INC.,
Plaintiffs,

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CA 11-0223-KD-C

MIDSOUTH BANK, N.A.,
Plaintiff/Counter-Defendant

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IN ADMIRALTY
In Personam and In Rem

vs.

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M/V BARBARY COAST, her engines,
tackle, furniture, and appurtenances, etc.,
In Rem, and RODD CAIRNS, an
individual, and ATCHAFALAYA MARINE,
LLC, In personam,
Defendants/Counter-Plaintiffs/
Third-Party Plaintiffs,
vs.

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EAGLE RIVER TOWING, L.L.C., p/k/a or
a/k/a EAGLE INLAND TOWING,
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA,
LOUISIANA LIMESTONE & LOGISTICS,
L.L.C., and CURTIS BUFORD,
Third-Party Defendants.

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ORDER1
This matter is before the Court on Third-Party Plaintiffs Rodd Cairns and Atchafalaya
Marine, LLC’s Motion to Reinstate the Jury Demand (Doc. 291) and Third-Party Defendant
National Union Fire Insurance Company of Pittsburgh, PA’s Response thereto (Doc. 293).
On September 19, 2012, a hearing was held (in part) regarding the pending motion.

At

that time, the Court explained that the reasons for previously striking the jury demand in the

1 This Order amends the Scheduling Orders previously entered in this case.

1

Second Amended Third-Party Complaint (Doc. 180) do not exist because the original plaintiffs –
who opted under Rule 9(h) to proceed under maritime law -- are no longer in the case.
Atchafalaya/Cairns are the only remaining plaintiffs (Third-Party Plaintiffs) and thus, there is no
longer an interrelationship with the original plaintiffs’ Rule 9(h) election.

Moreover,

Atchafalaya/Cairns’ claims (Counts V-VIII) against National Union are asserted solely on the
basis of diversity jurisdiction.

(Doc. 60 at 2 at ¶1).

Further, under the circumstances of this

case, case law supports the Court’s discretionary decision to proceed with this matter as a jury
trial.

See, e.g., Luera v. M/V Alberta, 635 F.3d 181, 189 (5th Cir. 2011) (providing that Rule

9(h) applies to claims and not to entire cases).

See also e.g., Murphy v. Florida Keys Elec.

Co-op. Ass'n, Inc., 329 F.3d 1311, 1319-1320 (11th Cir. 2003); U.S. v. One Parcel of Property
Located at 867 County Road 227, Clanton, Chilton County, 2009 WL 5184401, *1 (M.D. Ala.
Dec. 23, 2009); Harris v. Flow Intern. Corp., 2007 WL 3011267, *1 (M.D. Fla. Oct. 12, 2007).
As such, and for those reasons stated on the record at the hearing, it is ORDERED that
Atchafalaya/Cairns’ Motion to Reinstate the Jury Demand (Doc. 291) is GRANTED.
It is further ORDERED that for those reasons discussed at the September 19, 2012
hearing, the following amended schedule is set and shall govern this case:2
a) Final Pretrial Conference: This action is RESCHEDULED for a Final
Pretrial Conference on November 13, 2012 at 12:00 p.m. (noon), in the
undersigned’s chambers, Room 508 of the United States District Court, 113 St.
Joseph St., Mobile, Alabama, 36602.
b) Proposed Pretrial Order. The parties shall file an Amended Proposed
Pretrial Document on or before November 6, 2012 (amended in the manner
instructed at the September 19, 2012 hearing).

2 A copy of this Court’s Standing Order governing Final Pretrial Conference is attached hereto.

2

c) Jury Selection:3 This action is set for a JURY TRIAL with Jury Selection
on December 4, 2012 at 8:45 a.m., in Courtroom 5A, of the United States
District Court, 113 St. Joseph St., Mobile, Alabama, 36602.
d) Trial: This action is set for a five (5) day trial to begin on December 10,
2012, at 8:30 a.m. in Courtroom 5A, and to conclude on December 14, 2012.
DONE and ORDERED this the 26th day of September 2012.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

3 The parties will consent to Jury Selection by a Magistrate Judge.

consent on or before November 6, 2012.

3

The parties shall file such written