Bhatnagar v. United States of America

Filing 100

ORDER re: Plaintiff's request for advisory jury. Signed by Judge Maria-Elena James on 2/23/2017. (mejlc3, COURT STAFF) (Filed on 2/23/2017)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

SANJAY BHATNAGAR,

Case No. 14-cv-00327-MEJ

Plaintiff,
ORDER RE: PLAINTIFF’S REQUEST
FOR ADVISORY JURY

8
v.
9
10

UNITED STATES OF AMERICA,
Defendant.

United States District Court
Northern District of California

11
12
13

The parties are not entitled to a jury trial in this Federal Tort Claims Act (“FTCA”) action.

14

See United States v. Neustadt, 366 U.S. 696, 701 n.10 (1961). During oral argument on

15

Defendant’s Motion for Summary Judgment, Plaintiff Sanjay Bhatnagar nonetheless requested the

16

Court try the action with an advisory jury pursuant to 28 U.S.C. § 2402 and Federal Rule of Civil

17

Procedure 39(c). Defendant the United States of America opposed the request.

18

District courts in several circuits have used advisory juries in FTCA cases upon finding

19

one would be helpful and appropriate, most frequently when a jury already would be required

20

because the plaintiff also asserted claims against a non-governmental defendant. See, e.g., Hamm

21

v. Nasatka Barriers Inc., 166 F.R.D. 1, 3 (D. D.C. 1996) (same jury already would be hearing

22

claims against non-government defendant, and it would be more confusing to instruct jury to

23

ignore some pieces of evidence; “the Court ‘would be reluctant to use an advisory jury in a[n]

24

[FTCA] case if a trial jury were not already trying the case as to other defendants’” (quoting

25

Poston v. United States, 262 F. Supp. 22, 24 (D. Haw. 1966) and citing cases holding Rule 39(c)

26

gives “district courts discretion to use an advisory jury in FTCA cases”)); Carter v. United States,

27

2009 WL 1956474, at *1 (D. Kan. July 7, 2009) (“Courts routinely empanel advisory juries in

28

actions brought against both the United States and non-federal government defendants. In these

1

cases, because the plaintiff has a right to trial by jury against the non-federal defendant(s), it is

2

often helpful and appropriate to allow the jury to try the claims against the United States in an

3

advisory capacity. Courts have expressed reluctance, however, to abdicate the responsibility

4

placed upon it by Congress when a jury is not already trying non-federal defendants.”); In re

5

FEMA Trailer Formaldehyde Prods. Liab. Litig., 2009 WL 1950743, at *2 (E.D. La. July 2, 2009)

6

(ordering advisory jury on FTCA case where jurors already would be empaneled for other

7

defendants and where trying case against all defendants at once would allow court to abide by

8

Louisiana comparative fault principles); Aetna Cas. & Sur. Co. v. Dow Chem. Co., 44 F. Supp. 2d

9

870, 881 (E.D. Mich. 1999) (parallel advisory jury proceedings are common in FTCA cases
involving non-government defendants (citing Gould v. Aerospatiale Helicopter Corp., 40 F.3d

11
United States District Court
Northern District of California

10

1033, 1035 (9th Cir. 1994)).
There are no non-government defendants in this FTCA action; therefore no jury will be

12
13

empaneled as of right to hear any portion of the case. Using an advisory jury in this instance

14

would not contribute to the “just, speedy, and inexpensive determination” of this proceeding. Fed.

15

R. Civ. P. 1. Accordingly, the Court declines to exercise its discretion to impanel an advisory jury

16

here.

17

IT IS SO ORDERED.

18
19
20
21

Dated: February 23, 2017
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

22
23
24
25
26
27
28
2