Salty Dawg Expedition, Inc. et al v. Borland
Filing
35
ORDER denying 31 --motion to strike Borland's demand for a jury trial or to bifurcate the issue of Borland's seaman status. Signed by Judge Steven D. Merryday on 10/19/2017. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SALTY DAWG EXPEDITION, INC.
and DAVID BOCK,
Plaintiffs,
v.
CASE NO. 8:16-cv-3268-T-23TBM
KEVIN BORLAND,
Defendant.
____________________________________/
ORDER
Six months after Kevin Borland injured his back while standing watch
aboard the M/V Salty Dawg, Borland’s counsel demanded maintenance and cure.
Forty-eight hours after receiving the demand letter, Salty Dawg Expedition, Inc., and
David Bock, who owns Salty Dawg Expedition, Inc., sued (Doc. 1) for a declaratory
judgment that Salty Dawg and Bock owe no maintenance and cure because Borland
fails to qualify as a “seaman” under the Jones Act, which permits a “seaman injured
in the course of employment” to sue an employer for negligence.1 Even though the
Jones Act unambiguously protects the right to a jury trial,2 Bock and Salty Dawg
1
A June 30, 2017 order (Doc. 28) denies summary judgment on the issue of Borland’s
“seaman status.”
2
“A seaman injured in the course of employment . . . may elect to bring a civil action at law,
with the right of trial by jury.” 46 U.S.C. § 30104.
argue that their expedient exploitation of a procedural quirk (that is, the request for a
declaratory judgment and the consequent invocation of Rule 9(h), Federal Rules of
Civil Procedure) extinguished Borland’s statutory and constitutional right to a jury
trial. Borland opposes (Doc. 34) Bock and Salty Dawg’s motion (Doc. 31) to strike
Borland’s request for a jury trial.
1. Procedural posture
Salty Dawg Expedition, Inc., and Bock sued (Doc. 1) for a declaratory
judgment that Borland fails to qualify as a “seaman” under the Jones Act. The
complaint alleges both admiralty and diversity jurisdiction. (Doc. 1 at ¶¶ 7–8)
Omitting from the complaint a request for a jury trial, Bock and Salty Dawg inserted
the phrase “In Admiralty” prominently on the first page of the complaint.
In the answer, Borland admitted admiralty jurisdiction but “reserve[d] his
right to a jury trial under the Jones Act.” (Doc. 9 at ¶ 7) Also, Borland admitted
that the amount in controversy exceeds $75,000 and that the adverse parties share
no citizenship. (Doc. 9 at ¶ 8) Additionally, Borland counter-claimed against Salty
Dawg and Bock for negligence under the Jones Act, for unseaworthiness under
maritime law, for maintenance and cure under maritime law, and for negligence
under maritime law. (Doc. 9 at 7–14) Finally, Borland demanded a jury trial.
(Doc. 9 at 15) Borland asserted no in-rem claim against the M/V Salty Dawg.
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2. Right to a jury trial
If Borland sued first, at least two sources would guarantee Borland’s right to a
jury trial. First, Congress provided in Section 30104 of the Jones Act that a “seaman
injured in the course of employment . . . may elect to bring a civil action at law, with
the right of trial by jury.”3 Although Section 30104 provides a jury trial only on a
Jones Act claim, Fitzgerald v. U.S. Lines Co., 374 U.S. 16 (1963), extends the jury-trial
right to a maritime-law claim “closely related” to the Jones Act claim. In Fitzgerald,
a seaman injured aboard a vessel sued the vessel’s owner for negligence under the
Jones Act, for unseaworthiness under maritime law, and for maintenance and cure
under maritime law. The district court permitted a jury trial on the Jones Act and
unseaworthiness claims but denied the request for a jury trial on the
maintenance-and-cure claim.
Fitzgerald explains that a bench trial on some claims and a jury trial on others
unnecessarily confuses the two trials, “complicates” the application of res judicata,
and often results in a plaintiff’s under-compensation or a defendant’s over-exposure
to liability. 374 U.S. at 18–19. To resolve the problems attendant to two trials about
the same incident, Fitzgerald holds that a single finder of fact — a jury — must hear
the Jones Act claim and the maritime-law claims if the seaman requests a jury
trial. 374 U.S. at 21–22. Fitzgerald confirms the availability of a jury trial on all four
of Borland’s counter-claims, which involve the same May 10, 2016 injury.
3
The seaman elects between an action at law and an admiralty action, which carries no right
to a jury trial.
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Second, the Seventh Amendment preserves the right to a jury trial in a
common-law action, that is, an action “at law.” City of Monterey v. Del Monte
Dunes at Monterey, Ltd., 526 U.S. 687, 708–11 (1999). Although no right to a
jury trial historically attended an action that invoked admiralty jurisdiction,
the “saving-to-suitors” clause in 28 U.S.C. § 1333 protects “all other remedies to
which [a suitor is] otherwise entitled.” The decisions consistently interpret the
saving-to-suitors clause to preserve the right to a jury trial if the plaintiff in an
admiralty dispute successfully invokes a jurisdiction other than admiralty (for
example, diversity or federal question). E.g., Powell v. Offshore Nav., Inc., 644 F.2d
1063, 1065–66 (5th Cir. May 11, 1981) (“[A] common law claim heard under the
court’s diversity jurisdiction is nevertheless beyond the reach of the admiralty rule
restricting the right to trial by jury.”). If a seaman injured aboard a vessel invokes
diversity or federal-question jurisdiction, the action constitutes an action “at law,”
and the Seventh Amendment preserves the right to a jury trial. For example, in
Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355 (1962), a
longshoreman sued a vessel’s owner for negligence and unseaworthiness under
maritime law. Rather than invoke admiralty jurisdiction, the longshoreman elected
to invoke diversity jurisdiction. Atlantic & Gulf Stevedores explains that the successful
invocation of “diversity [jurisdiction] carried with it, of course, the right” under the
Seventh Amendment to a jury trial. 369 U.S. at 360.
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If Borland sued first, Borland could have invoked both diversity and
federal-question jurisdiction. The parties agree that the amount in controversy
exceeds $75,000 and that the adverse parties share no citizenship. (Doc. 1 at ¶ 8;
Doc. 9 at ¶ 8) Also, Borland alleges a counter-claim under the Jones Act, which
would establish federal-question jurisdiction. Romero v. Int’l Terminal Operating Co.,
358 U.S. 354, 359 (1959); Powell, 644 F.2d at 1068. Borland counterclaims “at law”
against Salty Dawg Expedition, Inc., and Bock. The counter-claims include no
admiralty designation under Rule 9(h), and Borland asserts no in-rem claim against
the M/V Salty Dawg, which would necessarily invoke admiralty jurisdiction. Under
the Jones Act and the saving-to-suitors clause, Borland’s preference to proceed at law
rather than in admiralty would afford Borland a jury trial on all the claims.
3. Procedural posturing
Despite the apparent availability of a jury trial, Salty Dawg and Bock argue
that the declaratory-judgment request, which invokes Rule 9(h), extinguishes
Borland’s right to a jury trial. In a typical action at law, Rule 38(a) preserves
“inviolate” the right to a jury trial “as declared by the Seventh Amendment to the
Constitution — or as provided by a federal statute.” But if a claim “is within” both
admiralty jurisdiction and another jurisdiction, Rule 9(h) permits designating the
claim as an admiralty claim “for purposes of . . . Rule 38(e),” which withdraws “on
issues in a claim that is an admiralty or maritime claim” the protection in Rule 38(a)
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of the right to a jury trial. In short, a Rule 9(h) designation ordinarily precludes a
jury trial on an admiralty claim.
For three reasons, Bock and Salty Dawg Expedition’s Rule 9(h) designation
cannot extinguish Borland’s statutory and constitutional right to a jury trial. First,
Bock and Salty Dawg’s complaint asserts no maritime “claim.” The request for a
declaratory judgment, which duplicates several of Bock and Salty Dawg’s affirmative
defenses (Doc. 10), merely denies liability based on Borland’s alleged failure to
qualify as a seaman.
Second, even if the declaratory-judgment request asserts a “claim,” Rule 38(e)
precludes a jury trial on “issues in a claim that is an admiralty or maritime claim.”
Bock and Salty Dawg Expedition’s complaint requests a declaratory judgment on
two “issues”: Borland’s “status as a seaman” (Doc. 1 at ¶¶ 25–49) and the amount of
maintenance and cure (Doc. 1 at ¶¶ 50–52). The complaint requests no declaratory
judgment about Bock and Salty Dawg’s purported negligence. In fact, the word
“negligence” appears nowhere in Bock and Salty Dawg’s request for a declaratory
judgment. Although Borland’s “status” as a seaman affects the Jones Act claim, the
maintenance-and-cure claim, and the unseaworthiness claim, Borland’s negligence
claim can succeed regardless of Borland’s “seaman status.” Because no party
invokes Rule 9(h) to exclude under Rule 38(e) the prospect of a jury trial on the
negligence claim — which, as explained above, Borland can try “at law” under
diversity jurisdiction — Rule 38(a) protects “inviolate” Borland’s right to a jury trial
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on that claim. And, as Fitzgerald explains, a single trial preserves the parties’ and the
judiciary’s resources and promotes a “fair” outcome.
Third, the invocation of the Declaratory Judgment Act in an apparent attempt
to prevent Borland’s exercise of his statutory and constitutional right to a jury trial
contravenes the Supreme Court’s repeated instruction that the Declaratory Judgment
Act “leave[s] substantive rights unchanged.” Medtronic, Inc. v. Mirowski Fam. Ventures,
LLC, 134 S.Ct. 843, 849 (2014); accord Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S.
667, 672 (1950) (disregarding the declaratory-judgment posture of an action in
determining whether the action invoked subject-matter jurisdiction). In Beacon
Theatres, Inc. v. Westover, 359 U.S. 500 (1959), Fox contracted with a movie
distributor for the exclusive right to play a new movie in a Fox theater. A
competitor, Beacon demanded that Fox withdraw from the agreement, which
Beacon believed a violation of the Sherman and Clayton Acts. After Beacon’s
demand, Fox sued for a declaration that the movie-distribution agreement complied
with antitrust law. Beacon requested a jury trial on its counter-claims under the
Sherman and Clayton Acts, which allow a jury trial, but the district court denied the
request. Explaining that Rule 57 “specifically preserves the right to a jury trial for
both parties” in a declaratory-judgment action, Beacon Theatres observes that Beacon
— a plaintiff but for the Declaratory Judgment Act — “cannot be deprived of [the
jury-trial] right merely because Fox took advantage of the availability of declaratory
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relief to sue Beacon first.” 359 U.S. at 504. Like the defendant in Beacon Theatres,
Borland prefers to exercise his statutory and constitutional right to a jury trial.
The Declaratory Judgment Act, which provides that a district court “may
declare the rights” of a party, confers “unique and substantial discretion in deciding
whether to declare the rights of litigants.” Wilton v. Seven Falls Co., 515 U.S. 277,
287–88 (1995). In this instance, the operation of the Declaratory Judgment Act
deprives Borland of a statutory and constitutional right to a jury trial. In an action
that involves both a legal claim and an equitable claim, Beacon Theatres commands
the judiciary to exercise discretion, “wherever possible,” to preserve the right to a
jury trial. 359 U.S. at 510. If the record reveals a genuine dispute of material fact, a
jury must decide Borland’s claims. See, e.g., Royal Caribbean Cruises, Ltd. v. Whitefield
ex rel. Martinez, 664 F.Supp.2d 1270, 1277 (S.D. Fla. 2009) (Moore, J.) (“[A] seaman
who is a defendant in a federal declaratory judgment action may protect his saving to
suitors rights by filing a Jones Act counterclaim in federal court.”).
None of the decisions cited by Bock and Salty Dawg compels denying
Borland’s right to a jury trial. First, Bock and Salty Dawg cite Romero v. Bethlehem
Steel Corp., 515 F.2d 1249 (5th Cir. 1975), for the proposition that a plaintiff’s
invoking Rule 9(h) prohibits a defendant’s obtaining a jury trial. In Romero, the
plaintiff mentioned in his complaint both admiralty and diversity jurisdiction and
cited Rule 9(h). The defendants and the district court interpreted the plaintiff’s
Rule 9(h) designation as a waiver of the right to a jury trial. A pre-trial order
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permitted the plaintiff a final opportunity to amend the complaint and omit the
mention of Rule 9(h), but the plaintiff declined to amend the complaint. Over the
plaintiff’s untimely objection, the district judge heard the action, and the plaintiff
appealed the denial of his belated request for a jury trial. Romero, which involves no
request by a defendant for a jury trial, holds only that a plaintiff who invokes
admiralty jurisdiction and who persists in citing Rule 9(h) cannot claim on the eve of
trial that a jury must decide the action. Also, Romero includes no request for a
declaratory judgment.
Additionally, Bock and Salty Dawg cite St. Paul Fire & Marine Ins. Co. v. Lago
Canyon, Inc., 561 F.3d 1181 (11th Cir. 2009), the holding of which relies exclusively
on Harrison v. Flota Mercante Grancolombiana, S.A., 577 F.2d 968 (5th Cir. 1978). In
Harrison, a longshoreman who suffered a chemical burn aboard a vessel sued the
vessel’s owner for negligence and unseaworthiness and cited Rule 9(h). The vessel’s
owner impleaded the stevedore, which impleaded the shipper of the chemical. Also,
the vessel’s owner amended his third-party complaint to sue the shipper. Finally, the
plaintiff amended the complaint to sue the shipper. Again, the plaintiff’s amended
complaint invoked admiralty jurisdiction and cited Rule 9(h). The shipper attempted
to invoke diversity jurisdiction and requested a jury trial, but the district court denied
the request. Although Harrison affirms the denial of the request for a jury trial,
several pertinent facts distinguish this action and Harrison. First, Harrison
distinguishes McCrary v. SeaTrain Lines, Inc., 469 F.2d 666 (9th Cir. 1972)
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(Goodwin, J.), because the plaintiff in Harrison “has not alleged diversity as an
alternative basis of jurisdiction.” 577 F.2d at 978. In McCrary, a longshoreman
sued a vessel’s owner and alleged both admiralty and diversity jurisdiction. The
vessel’s owner impleaded the stevedore, which demanded a jury trial on the vessel
owner’s indemnity claim against the stevedore. After the longshoreman settled the
action against the vessel’s owner, the district court denied the stevedore’s request for
a jury trial on the claim between the stevedore and the vessel owner. Because the
longshoreman’s complaint alleged both admiralty and diversity jurisdiction, McCrary
states that the district court erred in denying the stevedore’s request for a jury trial.
Like McCrary but not Harrison, Bock and Salty Dawg allege diversity jurisdiction.
(Doc. 1 at ¶ 8) Second, Harrison distinguishes Fitzgerald because the seaman in
Harrison, unlike in Fitzgerald, preferred a bench trial. Again, Harrison involves no
request for a declaratory judgment. As explained above, a long line of Supreme
Court decisions holds that the Declaratory Judgment Act, which allows the party
who would ordinarily defend an action to initiate the litigation, cannot alter a party’s
“substantive rights.” See, e.g., Skelly; Beacon; Medtronic. In both Fitzgerald and this
action and unlike in Harrison, the injured seaman prefers to exercise the substantive
right to a jury trial.
Finally, although Lago Canyon involves a declaratory judgment, at least two
pertinent facts distinguish this action. First, the Jones Act expressly provides Borland
the right to a jury trial on the Jones Act claim, and Ftizgerald extends the jury-trial
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right to Borland’s maritime-law claims. Second, the declaratory-judgment request
and the counter-claim in Lago Canyon involved the same “issue”: whether an
insurance policy covered a yacht’s sinking. 561 F.3d at 1185 (“Lago Canyon’s
counterclaim is the flip side of St. Paul’s own claim.”). In this action, Borland
asserts claims not covered by narrow declaratory-judgment request. Because
Rule 38(e) precludes a jury trial only on “issues in a claim that is an admiralty
claim,” Rule 38(a) preserves Borland’s right under the saving-to-suitors clause and
the Jones Act to a jury trial.
4. Request to bifurcate trials
Additionally, Bock and Salty Dawg request a “separate bench trial on the issue
of seaman status to avoid prejudice and to promote judicial economy.” (Doc. 31
at 6) The request warrants denial for at least two reasons. First, the Jones Act and
the saving-to-suitors clause entitle Borland to a jury trial. Second, two trials in this
action wastes the parties’ and judiciary’s resources. A trial to determine Borland’s
status as a seaman will likely require several witnesses (including Borland) to travel
to Tampa from Oregon. Even if the finder of fact in the first trial concludes that
Borland is not a seaman, the negligence claim might require the parties and the
witnesses to assemble a second time in Tampa. And the parties will waste the second
jury’s valuable time by presenting evidence already presented to the first jury.4
4
Bock and Salty Dawg’s implausible argument that a single trial of all the claims would
prejudice Bock and Salty Dawg lacks merit.
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Bock and Salty Dawg argue that a preliminary trial on Borland’s status will
“streamline” this litigation and “maximize efficiency.” (Doc. 31 at 7) In fact,
experience (strongly) suggests that the prospect of two trials about the same incident
and in the same action achieves the opposite result. The motion (Doc. 31) to strike
Borland’s demand for a jury trial or to bifurcate the issue of Borland’s seaman status
is DENIED.
ORDERED in Tampa, Florida, on October 19, 2017.
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