Maher et al v. Creighton St. Joseph Regional Healthcare System, L.L.C. et al

Filing 34

ORDER granting Motion to Strike Jury Demand 29 on Plaintiffs' claims for recovery under the Federal Tort Claims Act. The court may, however, try the plaintiffs' Federal Tort Claims Act claims with an advisory jury. Ordered by Magistrate Judge Cheryl R. Zwart. (BHC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CINDY MAHER and RON MAHER,
Plaintiffs,

8:13CV9

vs.
MEMORANDUM AND ORDER
CREIGHTON ST. JOSEPH REGIONAL
HEALTHCARE SYSTEM, L.L.C.,
ANDREW MYRTUE, M.D.; and UNITED
STATES OF AMERICA,
Defendants.
The United States has moved to strike the plaintiffs’ jury demand on their claims
for recovery under the Federal Tort Claims Act. (Filing No. 29). The plaintiffs have not
responded to the motion, and the deadline for responding has passed. The motion is fully
submitted.

Parties are not entitled to a jury trial in most actions against the United States, (see
28 U.S.C. § 2402), including actions pursued under the Federal Tort Claims Act. U.S. v.
Neustadt, 366 U.S. 696, 701 n. 10 (1961) (“There is no right to a jury trial under the Tort
Claims Act.”). See also Mader v. U.S., 654 F.3d 794, 797 n. 1 (8th Cir. 2011) (“FTCA
actions must be tried to a judge, not a jury”). The United States’ motion to strike the
plaintiff’s jury demand on the FTCA claims will be granted.
Recognizing that at least part of the plaintiffs’ claims will be tried to a jury, the
United States further moves to prohibit the court from permitting that jury to render an
advisory decision on the FTCA claims. Under Rule 39(c) of the Federal Rules of Civil
Procedure: “In all actions not triable of right by a jury the court upon motion or of its own
initiative may try any issue with an advisory jury.” Fed. R. Civ. P. 39(c). The court is
permitted, in its discretion, to consider the determination of an advisory jury when

deciding claims against the United States. See, e.g., Harris v. Secretary, U.S. Dept. of the
Army, 119 F.3d 1313, 1320 (8th Cir 1997).

Accordingly,
IT IS ORDERED:
1) The United States’ motion to strike the plaintiffs’ jury demand on their claims
for recovery under the Federal Tort Claims Act, (Filing No. 29), is granted.
2) The court may, however, try the plaintiffs’ FTCA claims with an advisory jury.
June 26, 2013.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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