Great Lakes Reinsurance (UK) PLC v. Kan-Do, Inc.
Filing
17
ORDER granting 6 Motion to Strike Demand for Jury Trial. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 5/22/2013. (KAK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
GREAT LAKES REINSURANCE (UK)
PLC,
Plaintiff,
Case No.: 8:12-cv-2923-T-33TGW
v.
KAN-DO, INC.,
Defendant.
_____________________________/
KAN-DO, INC.,
Counter-Plaintiff,
v.
GREAT LAKES REINSURANCE (UK)
PLC,
Counter-Defendant.
________________________________/
ORDER
This matter comes before the Court pursuant to Great
Lakes Reinsurance (UK) PLC’s Motion to Strike Kan-Do, Inc.’s
Demand for Jury Trial (Doc. # 6), filed on April 11, 2013.
Kan-Do filed a Response in Opposition to the Motion to Strike
(Doc. # 7) on April 25, 2013, and Great Lakes filed a Reply
Memorandum (Doc. # 8) on April 29, 2013. For the reasons that
follow, the Court grants the Motion to Strike Jury Demand.
I.
Background
On December 21, 2011, Great Lakes issued to Kan-Do a
marine insurance policy affording coverage in the amount of
$78,622.00 for a 1989 51 foot Bluewater motor yacht, which was
owned by Kan-Do. (Doc. # 1 at ¶ 9).
On November 5, 2012,
while the policy was in full force and effect, the Bluewater
vessel sank at a marina in Tarpon Springs, Florida. (Id. at ¶
11).
Great Lakes investigated the incident and determined that
the damage to the insured vessel “was not due to anything of
a fortuitous nature and was not an event for which Plaintiff’s
policy of marine insurance would afford any coverage.” (Id. at
¶ 12).
In addition, Great Lakes determined that, at the time
of the incident, “the vessel owned by the Defendant was in
unseaworthy condition” and “the damages sustained by the
insured
vessel
were
caused
by
wear
and
tear,
gradual
deterioration, corrosion, etc.” (Id. at ¶¶ 13-14).
Kan-Do made a claim against the insurance policy. (Id. at
¶ 15).
On December 27, 2012, Great Lakes filed a Complaint
against Kan-Do for declaratory judgment regarding coverage
under the insurance policy. Key to the present dispute, Great
Lakes invoked the admiralty jurisdiction of this Court as
provided in Rule 9(h) of the Federal Rules of Civil Procedure.
(Doc. # 1 at ¶ 3).
Kan-Do
filed
its
answer,
affirmative
defenses,
and
“Counter Claim against Great Lakes Reinsurance (UK) PLC for
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Damages, Costs, and Attorney’s Fees” on April 8, 2013. (Doc.
# 4).
In the counterclaim, Kan-Do purports to invoke the
Court’s diversity jurisdiction under 28 U.S.C. § 1332 and
demands a jury trial.
(Id.).
At this juncture, Great Lakes moves to strike Kan-Do’s
demand for a jury trial.
II.
Discussion
The Supreme Court decreed in Chauffeurs, Teamsters &
Helpers, Local No. 391 v. Terry, 494 U.S. 558, 564-65 (1990),
“[m]aintenance of the jury as a fact-finding body is of such
importance and occupies so firm a place in our history and
jurisprudence that any seeming curtailment of the right to a
jury trial should be scrutinized with the utmost care.”
However, it is beyond dispute that “if there are two grounds
for jurisdiction in the same case–-such as admiralty
and
diversity jurisdiction–-Rule 9(h) provides that the plaintiff
may elect to proceed in admiralty.” St. Paul Fire & Marine
Ins. Co. v. Lago Canyon, Inc., 561 F.3d 1181, 1184 (11th Cir.
2009).
The facts of the Lago Canyon case are strikingly similar
to the facts presented here. In Lago Canyon, a vessel sank in
a marina and the insured vessel owner sought coverage from the
insurer, St. Paul Fire & Marine Insurance Company. Id. at
-3-
1183.
The insurer “issued a Reservation of Rights advising
Lago that its loss might not be covered” and then filed an
action for declaratory judgment invoking the court’s admiralty
jurisdiction. Id. at 1184.
The
insured
filed
a
breach
of
contract
counterclaim
predicted upon the court’s diversity jurisdiction and demanded
a jury trial. Id. at 1184-85.
The district court struck the
jury demand and the Eleventh Circuit affirmed as follows:
In this admiralty-Rule 9(h) case, the district
court was, as we are, bound by Harrison and thus
did not err in striking Lago Canyon’s demand for a
jury trial. St. Paul’s declaratory judgment
complaint as to its Marine Policy claimed the
special benefits of admiralty procedures, including
a non-jury trial, by setting forth why admiralty
jurisdiction existed and by designating this action
under Rule 9(h) as one brought within that
admiralty jurisdiction rather than “some other
ground” of jurisdiction, such as diversity. . . .
[T]his accords with the longstanding tradition in
admiralty proceedings that the pleader has the
right
to
determine
procedural
consequences
(including the right to a jury trial) by a simple
statement in his pleading that the claim is an
admiralty claim.
Id. at 1187.1
The Court reaches the same result here and strikes KanDo’s jury demand.
In addition to being in accord with the
1
The Eleventh Circuit’s reference to the Harrison case
is to Harrison v. Flota Mercante Grancolombiana, S.A., 577
F.2d 968 (5th Cir. 1978).
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binding precedent of Harrison and Lago Canyon, the Court’s
decision to strike the jury demand is consistent with numerous
district
court
decisions,
which
the
Court
finds
to
be
persuasive. See Great Lakes Reinsurance (UK) PLC v. Masters,
No. 8:07-cv-1662, 2008 A.M.C. 1045 (M.D. Fla. March 3, 2008);
(“[T]he Court finds that Great Lakes’ election to proceed in
this declaratory action without a jury pursuant to Rule 9(h)
trumps
Masters’
demand
for
a
jury
trial
on
his
counterclaim.”); Underwriters v. On the Loose Travel, Inc.,
No. 99-cv-200, 1999 A.M.C. 1742, 1743 (S.D. Fla. Mar. 23,
1999)(“No right to trial by jury exists with respect to claims
brought under federal admiralty jurisdiction Rule 9(h) and the
Court finds that the trial by jury preclusion extends to
counterclaims.”); Albany Ins. Co. v. Nguyen, No. 95-3507, 1997
A.M.C.
335,
338
(E.D.
La.
July
29,
1996)(“Plaintiff’s
complaint, by its express Rule 9(h) admiralty designation has
effectively designated the entire case as a non-jury admiralty
case. Furthermore, jury demands give way whenever a plaintiff
makes a 9(h) designation.”)(citations and quotation marks
omitted); In re Complaint of Armatur, S.A., 710 F. Supp. 404,
406 (D.P.R. 1989)(The Plaintiff’s Rule 9(h) designation reins
supreme, and will operate to deny the defendant a right to
jury trial he might otherwise have had.”).
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Kan-Do rightly points out that the Lago Canyon opinion
comes with a concurring opinion suggesting that the Eleventh
Circuit should adopt the analysis of the Fourth Circuit as set
forth in In re Lockheed Martin Corporation, 503 F.3d 351 (4th
Cir. 2007), which allowed a jury trial on a breach of contract
counterclaim in an admiralty case. Nevertheless, the Court is
bound by the holding of Lago Canyon and under such holding,
determines that it is appropriate to strike Kan-Do’s demand
for a jury trial.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Great Lakes Reinsurance (UK) PLC’s Motion to Strike KanDo, Inc.’s Demand for Jury Trial (Doc. # 6) is GRANTED.
DONE and ORDERED in Chambers in Tampa, Florida, this 22nd
day of May, 2013.
Copies to:
All Counsel of Record
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