Tucker v. Cascade General, Inc. et al
Filing
123
OPINION and ORDER - Plaintiffs' demand for a jury trial 45 on its claims agaisnt Cascade General is GRANTED. Plaintiffs' request for an advisory jury 45 on its claims against the United States is GRANTED. Cascade General's demand for an advisory jury 48 on its claims against the United States is GRANTED. The United States' claims against Cascade General will be tried to an advisory jury. Dated this 24th day of October, 2011, by U.S. Magistrate Judge John V. Acosta. (peg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Civ. No. 09-1491-AC
PHILIP TUCKER and TONI HOTTEN,
husband and wife,
Plaintiffs,
OPINION AND ORDER
v.
CASCADE GENERAL, INC., an Oregon
corporation, and UNITED STATES OF
AMERICA,
Defendants.
ACOSTA, Magistrate Judge:
introduction
In this personal injury case arising from an injury which occurred on a United States vessel,
the patties dispnte whether trial may be to a jury or must be to the court. Plaintiffs Philip Tucker
("Tucker") and Toni Hotten ("Hotten") (collectively "Plaintiffs") sue for negligence and loss of
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1
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consortium against Defendant Cascade General, Inc. ("Cascade General"), and the United States
Army Corps of Engineers ("the United States"). Plaintiffs contend they are entitled to a jury trial
of their claims against Cascade General, and they request the court use an advisory jury on their
claims against the United States. Cascade General requests an advisory jury on its cross-claims for
indemnity and contribution against the United States, and a jury trial on the United States' crossclaims against it for breach of contract, indemnity, and contribution.
The court grants Plaintiffs' motion for jUly trial against Cascade General because Plaintiffs
assert diversity jurisdiction against Cascade General for their claims, and they assert the separate
jurisdictional basis of admiralty against the United States. Pursuant to Federal Rule of Civil
Procedure 39(c), the COUlt also concludes that an advisory jury is appropriate on Plaintiffs' claims
against the United States and on the cross-claims between Cascade General and the United States,
. because their potential liability for Plaintiffs' damages, if any, stems from a single fact pattern.
Background
The United States is the owner of a public vessel, a dredge, called ESSAYONS ("the
vessel"). (Opposition Memorandum of Defendant and Cross-Claimant United States of
America on the JUly Issues ("United States' Opposition") 2.) Cascade General contracted with
the United States to provide repairs to the vessel in 2008. [d. On September 26, 2008, Tucker, an
employee of West Coast Marine Cleaning, was working in the engine room cleaning bilges aboard
the vessel when a Cascade General employee removed a hatch cover from the deck above the engine
room and lost control of the hatch, causing the hatch to drop thirty to thirty-five feet onto Tucker's
head and back. (Third Amended Complaint ("Third Am. Comp!.") ~ 9.) At the time of the accident,
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the vessel was located in navigable waters at the Port of POliland repair yard in Portland, Oregon.
(United States' Opposition 2.)
A summaty of the jurisdictional allegations contained in Plaintiffs' Third Amended
Complaint (Docket No. 39) is impOliant to understanding the resolution of the jury trial question
presented here. The Third Amended Complaint's caption states the lawsuit is "in personam for
damages for negligence," and contains a demand for jUly trial, as required by Local Rule 38-1 and
pursuant to Federal Rule of Civil Procedure 38(b). Plaintiffs allege their negligence claim against
Cascade General is a "maritime claim pursuant to 28 U.S.C. §§ 1331 [federal question] and 1332
[diversity]" and that their "claim is not subject to Rule 9(h), FRCP [pleading special matters admiralty or maritime claim]." (Third Am. Compl. '112.) Plaintiffs support diversity jurisdiction by
alleging they are residents of Washington State and Cascade General is an Oregon corporation doing
business in Oregon. (Third Am. Compl. '11'111, 3.) Plaintiffs also allege an amount-in-controversy
in excess of$75,000. (Third Am. Compl. '11'1111, 12,21.) Against the United States, Plaintiffs allege
jurisdiction for their negligence claim "pursuant to 28 USC §§ 1331 [federal question], 1333
[admiralty and maritime] and 1346(b)(I)[c1aims against the United States]. (Third Am. Compl. 11
16.) Further, Plaintiffs allege the United States "has waived its immunity under the Public Vessels
Act, 46 USC § 31101 et seq." (ld.)
Cascade General cross-claims against the United States for contribution and indemnity, and
assertsjurisdiction for its cross-claim based on the PVA. (Cascade General's Answer, Affirmative
Defenses and Cross-Claim to Third Amended Complaint ("Cascade General's Answer") '117.) The
United States cross-claims against Cascade General for breach of contract, contribution, and
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indemnity. (Answer of United States to the Third Amended Complaint, and Cross-Claims ("United
States' Answer") 'II'll 43-49.) The United States asserts that "[t]hese cross-claims present cases of
admiralty and maritime jurisdiction, as hereinafter more fully appears, and within Rule 9(h) of the
Federal Rules of Civil Procedure." (United States' Answer'll 34.)
Legal Standard
Congress has statutorily implemented the federal courts' subject matter jurisdiction under
Article III of the United States Constitution by categorizing: (1) all cases arising under the
Constitution, laws, or treaties of the United States, under 28 U.S.C. § 1331; (2) cases involving
citizens of diverse states under 28 U.S.C. § 1332; and (3) cases of admiralty law under 28 U.S.c. §
1333. Section 1331 provides for federal question jurisdiction, and "[t]he presence or absence of
federal-question jurisdiction is governed by the 'well-pleaded complaint rule,' which provides that
federal jurisdiction exists only when a federal question is presented on the face of the plaintiff s
properly pleaded complaint." Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Federal
question jurisdiction, however, does not include controversies in admiralty. Romero v. Int'!
Terminal Operating Co., 358 U.S. 354,368-69 (1959). Diversity jurisdiction is governed by section
1332(a), which authorizes district courts to exercise original jurisdiction over such actions only when
the amount in controversy exceeds $75,000, exclusive of interest and costs, and all the plaintiffs are
citizens of different states from all the defendants. 28 U.S.C. § 1332(a). See In re Digimarc Corp.
Derivative Litigation, 549 F.3d 1223, 1234 (9th Cir. 2008) (existence of diversity jurisdiction
"requires complete diversity between the parties - each defendant must be a citizen of a different
state from each plaintiff. "). Admiralty jurisdiction is governed by28 U.S.C. § 1333(1), which states:
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"The district courts shall have original jurisdiction, exclusive of the courts of the States, of: (I) Any
civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to
which they are otherwise entitled." The "savings to suitors" language permits a plaintiff to bring
actions outside of admiralty jurisdiction when diversity jurisdiction exists, which will preserve a
plaintiffs rightto jury trial. Ghofra v. Bandila Shipping. Inc., 113 F.3d 1050, 1054 (9th Cir. 1997).
Federal Rule of Civil Procedure 9 specifically contemplates that claims in a single case may
invoke subject matter jurisdiction on both admiralty and non-admiralty grounds. In those instances,
plaintiffs may choose between admiralty or an alternate basis of federal subject matter jurisdiction,
unless the claim may be brought only in admiralty:
[i]f a claim for relief is within the admiralty or maritime jurisdiction and also within
the court's subject-matter jurisdiction on some other ground, the pleading may
designate the claim as an admiralty or maritime claim for purposes of Rules 14(c),
38(e), and 82 .... A claim cognizable only in the admiralty or maritime jurisdiction
is an admiralty or maritime claim for those purposes, whether or not so designated.
FED. R. ClY. P. 9(h). Thus, Rule 9(h) designation becomes necessary only when a claim for relief
arises under both admiralty jurisdiction and another basis of subject matter jurisdiction, and the
affirmative designation of a claim as subject to Rule 9(h) merely denotes the plaintiffs desire to
proceed under admiralty procedures. Lewis v.
u.s., 812 F.
Supp. 620, 627 (E.D. Va. 1993).
Although Rule 9(h) permits actions with multiple bases of jurisdiction to be brought together, the
Rules do not otherwise create a right to jury trial of a claim exclusively within the court's admiralty
jurisdiction. FED. R. ClY. P. 38(e) ("[Rule 38(a)-(d) do] not create a right to ajury trial on issues in
a claim that is an admiralty or maritime claim under Rule 9(h).").
A party's right to a jUly trial under the Seventh Amendment will depend largely on the
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jurisdictional basis asserted in its pleading, Ghotra, 113 F.3d at 1054, and invocation of admiralty
jurisdiction has traditionally resulted in trials without juries. Green v. Ross, 481 F.2d 102, 103-04
(5th Cir. 1973). However, nothing in the Constitution or the Federal Rules of Civil Procedure
explicitly forbids the use ofjury trials in admiralty cases. Fitzgerald v.
u.s. Lines Co., 374 U.S. 16,
20 (1963). And, when a lawsuit arising out of a single incident is cognizable under admiralty
jurisdiction and some other basis of subject matter jurisdiction, the plaintiff may invoke either basis
ofjurisdiction. Zmcevich v. Blue Hall'. Enters., Inc., 738 F. Supp. 350, 356 (D. Haw. 1990) (holding
that the plaintiff was entitled to trial by jUlY pursuant to a statute even though the plaintiff also
brought a claim in admiralty jurisdiction); 2 JAMES WM. ET AL., MOORE'S FEDERAL PRACTICE §
9.09[1] (3d ed. 1997).
The 1938 adoption of the Rules, specifically Rules 1 and 2, united actions oflaw and equity
so that they may be tried together. 8 MOORE'S FEDERAL PRACTICE § 38.03[3](a)(i). In 1966,
admiralty procedures were merged with actions of law and equity; thus, the federal rules permit
joinder oflegal, equitable, and maritime claims in one action. Id. Although legal, eqnitable, and
maritime claims may be merged into a single action, the Rules require conrts to distinguish the type
of action as it relates to jury trial and non-jury trial. Id. at § 38.03[3](a)(ii). The right to jury trial,
as it relates to Rules 38 and 39, is a right that attaches to issues rather than to actions:
"[W]here equitable and legal claims are joined in the same action, there is a right to
jUly trial on the legal claims which must not be infringed either by trying the legal
issues as incidental to the equitable ones or by a COUlt trial of a common issue
existing between the claims. The Seventh Amendment question depends on the
nature of the issue to be tried rather than the character of the overall action."
Ross v. Bernhard, 396 U.S. 531, 537-38 (1970). The right to trial by jUly is carefully preserved when
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a party's legal rights are invoked. ChmifJeurs, Teamsters & Helpers, Local No. 391 v. Teny, 494
U.S. 558, 565 (1990).
DisclIssion
L
Subject Matter Jurisdiction
The court must determine the proper jurisdictional basis upon which Plaintiffs' claims against
each defendant are based before the jury trial question can be resolved.
A.
The United States
Plaintiffs argue that subject matter jurisdiction over the United States for their claims exists
under federal question, admiralty, FTCA, and the PVA. Easily dispensed with is the FTCA
jurisdiction allegation. The FTCA waives the United States' immunity for torts, but it does not apply
to any claim for which a remedy is provided under the PVA. See 28 U.S.C. § 2680(d) (excluding
the FTCA as a remedy when a claim can be brought under the PV A); Taghadollli v. United States,
401 FJd 1080, 1083 (9th Cir. 2005) (noting the FTCA's exception and concluding "[t]he PYA
renders the United States liable in admiralty for "damages caused by a public vessel ofthe United
States.").
Next disposed of is Plaintiffs' federal question allegation. The Third Amended Complaint
contains no reference to the source for this jurisdiction beyond the PVA, a federal statute. Although
the PYA is one of the "laws" of the United States l , it does not invoke federal question jurisdiction
under § 1331 because the PVA grants authority to courts to hear civil suits in personam against the
United States in admiralty in cases involving "a public vessel of the United States." 46 U.S.c. §§
Congress has provided that "district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws or treaties of the United States." 28 U.S.C. § 1331.
I
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311 01-l3 (emphasis added). The PYA authorizes suits "on the admiralty side of the district COUtts"
and provide the exclusive remedy for claims within their coverage. U.S. v. United Continental Tuna
Corp., 425 U.S. 164, 172 (1976). Here, the United States has admitted that it owns the vessel and
the vessel is public, and the parties do not otherwise dispute that Tucker's injuries and events alleged
to have caused them constitute a maritime tort within the meaning of the term.' Thus, Plaintiffs' in
personam claim against the United States proceeds under the PVA, which consequently excludes
federal question jurisdiction.
The two remaining jurisdictional allegations, the PYA and admiralty, are effectively the.
same. The PV A, as previously discussed, creates admiralty jurisdiction for maritime claims. Thus,
the jurisdictional basis for Plaintiffs' claims against the United States is in admiralty.
B.
Cascade General
Plaintiffs asselt federal question and diversity jurisdiction for their claims against Cascade
General. A basis for federal question jurisdiction for Plaintiffs' claims against Cascade General is
lacking, however, as Plaintiffs site no federal law in their Third Amended Complaint to support this
jurisdictional allegation.
Plaintiffs argue in their briefing on the jury trial issue that the
Longshoremen and Harbor Workers Compensation Act ("LHWCA") serves as a basis for their
negligence claims against Cascade General. The LHWCA does not appear in the Third Amended
A maritime tort is one which occurs on or over navigable waters (known as the
"locality" or "situs" test), and bear a "significant relationship to traditional maritime activity"
(known as the "nexus" or "relationship" test). Taghadomi, 401 FJd at 1084. See also Jerome B.
Grubart, Inc. v. Great Lakes Dredge & Dock, Co., 513 U.S. 527, 534 (1995)("[A] patty seeking
to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. § l333(1) over a tort claim must
satisfy conditions both of location and of cOlmection with maritime activity.").
2
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Complaint, but even if Plaintiffs had pleaded it, the LHWCA does not invoke federal question
jurisdiction here because Tucker's negligence claim is a maritime tort. "A maritime negligence
claim does not lose its maritime status and become a claim arising under federal nonmaritime law
simply because it is covered by section 905(b) [of the LHWCA]." Dozier v. Rowan Drilling Co.,
Inc., 397 F. Supp. 2d 837,851-52 (S.D. Tex. 2005). For these reasons, the LHWCA does not
support jurisdiction for Plaintiffs claims against Cascade General.
Plaintiffs' allegation of diversity jurisdiction fares better. Those allegations meet the
requirements for diversity jurisdiction: Plaintiffs are residents of Washington State and Cascade
General is an Oregon corporation, and Plaintiffs seek more than $75,000 in damages. Thus,
Plaintiffs have established jurisdiction based on diversity for their claims against Cascade General.
II.
Plaintiffs' Right To Jury Trial Based On Diversity Jurisdiction
Having identified the proper jurisdictional bases for Plaintiffs' claims against Cascade
General and the United States, the court turns to the question of whether Plaintiffs are entitled to a
jury trial against Cascade General.
Plaintiffs seek a jury trial of their claims against Cascade General; they concede they are not
entitled to have a jury decide their claims against the United States. (Plaintiffs' Memo in Support
of Jury Trial ("Pis.' Memo") 2.) However, the United States argues that Plaintiff may not have a jury
trial against Cascade General in this case, and it challenges Plaintiffs' reliance on diversity
jurisdiction as a basis for their jUly trial request. The United States argues that Plaintiffs might be
able to establish their right to jury trial against Cascade General "but for one critical and defeating
fact: they chose to bring the. United States of America into this suit as a defendant ... and its
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presence destroys diversity." (United States' Opposition 6.) Thus, the United States contends,
Plaintiffs may not have a jury trial against Cascade General because the United States also is a
defendant here.
The United States' position implicitly presumes that whenever it is present as one of multiple
defendants in a lawsuit, diversity jurisdiction may never be the basis of subject matter jurisdiction
for a plaintiffs claims. The United States cites five cases to support its position, but those cases do
not address the precise question at issue here, the availability of a jury trial against a co-defendant
when the United States also is a defendant and the plaintiff has asserted separate subject matter
jurisdiction grounds against each defendant.
InSharr v. Department a/Transportation, 247 F. Supp. 2d 1208 (D. Or. 2003), six plaintiffs
sought injunctive relief and money damages against the TSA and a government contractor for
discrimination in the application and hiring process for security screener positions. Plaintiffs
asselted claims under Title VII, the Age Discrimination in Employment Act ("ADEA"), and two
federal regulations, against both the TSA and the contractor, and a state law claim against the
contractor only. Shw'/', 247 F. Supp. 2d at 1209. The court first found plaintiffs' Title VII and
ADEA claims "not properly before the court" because plaintiffs had failed to satisfy the
administrative prerequisites to these claims. Id. The court thus denied plaintiffs' preliminary
injunction on their federal claims. [d. The court then phrased the issue as "whether plaintiffs' state
law employment discrimination claim against [the contractor] supports the requested preliminary
injunction." Id. at 1212. The court found that it did not and denied plaintiffs' motion for preliminary
injunction against the contractor. Id. After ruling on the injunctive relief issues presented by the
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plaintiffs' motion, the court in dicta noted its "concern" that "in the absence of any viable federal
claim" it might lack subject matter jurisdiction. !d. at 1214. The court then noted that a federal
agency is not a "citizen" of any state and its presence as a defendant destroys diversity," and that
plaintiffs, having abandoned their attempt to certify their case as a class action, could not meet the
"amount in controversy" requirement. Id.
In Dyackv. Commonwealth o.fNol'the/'l1 Mariana Islands, 317 F.3d 1030 (9th Cir. 2003), the
plaintiff, a citizen of Canada, sued the Commonwealth of Northern Mariana Islands
("Commonwealth") under 42 U.S.c. § 1983 for violating his due process rights when it fired him
from his physician position with the health department, and under state law for wrongful termination
and premium pay violations. The district court granted summaty judgment against Dyack on his
federal claim and declined to exercise supplemental jurisdiction over his state-law claims. 317 F.3d
at 1033. The Ninth Circuit first affirmed the district COUlt' s summary judgment on Dyack' s federal
claim, finding that he had no constitutionally protected interest in his position and, thus, was not
entitled to due process. Id. at 1033-37. The Ninth Circuit next rejected Dyack's argument that the
district court had diversity jurisdiction over his state-law claims and e1'1'ed in not exercising its
supplemental jurisdiction to retain those claims.
The court of appeals observed that the
Commonwealth is a United States territory and therefore considered a "state" for jurisdictional
purposes, and "[t]here is no question that a State is not a 'citizen' for the purposes of diversity
jurisdiction." Id. at 1037 (quoting Moor v. COllnty of Alameda, 411 U.S. 693, 717 (1973)). The
Ninth Circuit concluded: "In light of the district court's grant of summary judgment to defendants
on Dyack's only federal claim, the court did not abuse its discretion in dismissing the state-law
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claims." Id. at 1037-38.
These cases and the others the United States cites to support its diversity jurisdiction
argument are inapposite to the circumstances of this case. Both SharI' and Dyackinvolved state-law
claims against the United States which those plaintiffs asserted in diversity jurisdiction.3 Here,
Plaintiffs assert independent bases ofjurisdiction against each defendant: they rely on the PVA and
admiralty for their claim against the United States, and diversity jurisdiction for their claim against
Cascade General. The United States has not produced, and the court has not found, case authority
in the Ninth Circuit or elsewhere that holds a plaintiff may not sue a defendant in diversity when the
United States is a co-defendant in the case and the plaintiff has asserted a separate jurisdictional
ground against the United States.
In fact, contraty to the United States' assertion that its presence destroys diversity
jurisdiction, courts have permitted plaintiffs to proceed in diversity where the United States is a party
so long as an alternative federal jurisdictional basis exists upon which to base jurisdiction against
the United States. In Pacific Mutual Life Insurance v. American National Bank, 642 F. Supp. 163,
164 (N.D. Ill. 1986), the plaintiffs brought a mortgage foreclosure proceeding in diversity and later
amended the complaint to add the United States as a defendant based on federal question
jurisdiction. Id. The defendants challenged the court's subject matter jurisdiction relying upon the
3 The United States' remaining cases are similarly inapposite. See Brumfield v. Nat 'I
Flood Ins. Program, 492 F. Supp. 1043,1044 (D.C. La. 1980) (United States the sole defendant);
McGlynn v. Emps. Commercial Union, 386 F. Supp. 774, 776 (D. P.R. 1974) (court concluded
diversity jurisdiction did not exist because United States was sole defendant and plaintiffs
complaint lacked allegation of diversity altogether); Darling v. United States, 352 F. Supp. 565,
567 (E.D. Cal 1972) (same).
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same argument the United States makes here, that the United States can never be sued in a diversity
action because its presence destroys complete diversity. Id. at 165. In rejecting this argnment, the
court held that "[s]o long as each of these 'claims' has an independent basis of jurisdiction, they all
may properly be joined in one lawsnit nnder the Federal Rules." Id. at 167. The court noted that "we
have complete diversity with respect to each independent claim against the individual defendants;
and we have federal question jurisdiction over the separate claim against the United States." Id. The
court viewed the plaintiffs' suit as consisting of "separate but related claims against different parties
joined in one suit" where each claim "rest[ed] on independent jurisdictional bases." Id. The court
held that "[t]he presence ofthe United States in its 'claim' does not dissolve diversity over the other
'claims.'" Id. 4
The Seventh Circuit reached the same conclusion when it held that the complete diversity
rule "does not require dismissal of claims against nondiverse defendants if plaintiff has an
independent basis of jurisdiction over them." Kauth v. Hartford Ins. Co. a/Ill., 852 F.2d 951, 958
(7th Cir. 1988). The Kauth court echoed the common sense principle in Pacific lvfutual that
plaintiffs should not be required to bring separate claims in separate lawsuits against defendants
where the claims arise out of the same facts and have independent federal jurisdictional bases. Id.
at 959.
The reasoning of these cases is persuasive. Further, it is consistent with Supreme Court
precedent on exceptions to complete diversity. In Romero v. Int'l Terminal Operating Co., 358 U.S.
This reasoning is consistent with Federal Rule of Civil Procedure 8(a)(I)'s requirement
that a "claim/or relie/must contain ... a short and plain statement of the grounds for the court's
jurisdiction[.]" (Emphasis added.)
4
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354 (1959), plaintiff, a Spanish national, sued two New York corporations, one Delaware
corporation, and one Spanish corporation. The Supreme Court found that diversity jurisdiction
existed. Although the plaintiff and one corporate defendant were both foreign nationals of Spain,
the Supreme Court held that the complete diversity rule did not result in a lack of subject matter
jurisdiction. 358 U.S. at 381. The Court found that the presence of an independent federal
jurisdictional basis existed between the Spanish plaintiff and the Spanish corporate defendant; thus,
the presence of a Spanish corporate defendant did not destroy diversity jurisdiction between the
plaintiff and the three diverse defendants. Id.
Here, diversity jurisdiction has not been destroyed simply by the United States' presence.
The court has jurisdiction over Plaintiffs' claims against Cascade General in diversity and over
Plaintiffs' claims against the United States,in admiralty, and the United States' presence does not
nullify those separate jurisdictional bases. InFitzgeraldv. US. Lines Co., 374 U.S. 16 (1963), the
Supreme Court permitted a plaintiffs request for trial by jury where a single set offacts gave rise
to an admiralty claim and a non-admiralty claim with a statutOlY right to a jUly trial. Fitzgerald, 374
U.S. at 20-21. The Ninth Circuit relied on Fitzgerald, in part, when it evaluated whether ajurytrial
may be permitted in a case involving both admiralty and non-admiralty jurisdiction. And, in Ghotra
by Ghotra v. Bandila Shipping, Inc., 113 F.3d 1050 (9th Cir. 1997), the plaintiffs filed a complaint
alleging claims based on jurisdiction in admiralty and diversity. Id. at 1054. The plaintiffs
specifically stated that several claims were based on diversity and made jUly trial demands on the
diversity claims. Id. The Ninth Circuit concluded that the presence of diversity jurisdiction entitled
the plaintiffs to a jUly trial on those claims. The court explained that, because the plaintiffs could
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have brought two separate actions, one based on diversity and one based on admiralty, which could
have been consolidated into one action under Rule 42(a), the court should not "penalize" the
plaintiffs by denying their right to trial by jury. Id at 1057.
The United States argues that Plaintiffs cannot convert their maritime claim against Cascade
General into an ordinary negligence claim to support their jury trial request, but that argument
ignores Rule 9(h) and the case law construing it. Rule 9(h)(I), entitled "Admiralty or Maritime
Claim - How Designated," provides:
If a claim for relief is within the admiralty or maritime jurisdiction and also within
the court's subject-matter jurisdiction on some other ground, the pleading may
designate the claim as an admiralty or maritime claim for purposes of Rules 14(c),
38(e), and 82 and the Supplemental Rules for Admiralty or Maritime Claims and
Asset Forfeiture Actions. A claim cognizable only in the admiralty or maritime
jurisdiction is an admiralty or maritime claim for those purposes, whether or not so
designated.
In Trentacosta v. Frontier Pacific Aircraft Industries, 813 F.2d 1553, 1559 (9th Cir. 1987),
the Ninth Circuit squarely addressed a plaintiff s option to plead a non-admiralty basis ofjurisdiction
where an admiralty basis ofjurisdiction exists. Id The Ninth Circuit held that the plaintiffs claims
were not cognizable solely in admiralty jurisdiction, and the plaintiffs invocation of non-admiralty
jurisdiction over its claims precluded the district court from treating the plaintiffs claims as
admiralty claims under Rule 9(h). Id
Plaintiffs are entitled to ajury trial on their claims against Cascade General. Rule 9(h) exists
in order to facilitate litigation that invokes both admiralty and non-admiralty jurisdictional bases.
Plaintiffs showed a clear intent from the outset to proceed against Cascade General in diversity by
specifically designating the claims against Cascade General as independent of Rule 9(h) procedures,
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and by requesting a jury trial in their complaints. Further, Plaintiffs' complaint should proceed in
a single action as permitted under Federal Rules of Civil Procedure 1 and 2 because the Plaintiffs
have independent federal bases of jurisdiction over each defendant and their claims arise from the
same set of facts.
III.
Remaining Jury Trial Issues
The previous section demonstrates that Plaintiffs are entitled to a jury trial on their diversity-
based claims against Cascade General and that their claims against the United States will be tried
to the court. All the jury trial issues are not resolved, however. First, Plaintiffs seeks an advisolY
jury on their claims against the United States, and Cascade General seeks an advisory jury on its
cross-claims against the United States. (Cascade General's Jury Demand 1-2.) Second, the court
must address the jUly trial issue as it relates to the United States' cross-claims against Cascade
General.
A.
Advisory Jury jar Plaintijjs' Claims and Cascade General's Cross-Claims Against
the United States
Pursuantto Federal Rule of Civil Procedure 39, Plaintiffs and Cascade General ask the court
to exercise its discretion to empanel an advisory jury to consider Plaintiffs' claims against the United
States and Cascade General's cross-claims against the United States. Rule 39© reads:
[i]n an action not triable of right by a jury, the COUll, on motion or on its own: (1)
may by any issue with an advisory jury; or (2) may, with the parties' consent, by any
issue by a jUly whose verdict has the same effect as if a jury trial had been a matter
of right, unless the action is against the United States and a federal statute provides
for a nonjury trial.
FED. R. CIV. P. 39©. Thus, for actions not triable of right by a jury, Rule 39 does not create a right
to an advisory jury but leaves such determination to the discretion of the trial judge. Poston v. US.,
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262 F. Supp. 22, 23-24 (D. Haw. 1966) (overruling defendant United States' objection to plaintiff's
request for an advisolY jUly on issues offact regarding the United States' liability, in action where
jUly was to be empaneled on liability issues of parties other than the United States). Rules 38 and
39 permit district cOUlis to exercise discretion to utilize an advisory jury whose opinion is nonbinding on the court.
In considering whether to exercise its discretion and empanel an advisOlY jUly on the claims
Plaintiffs allege against the United States, and Cascade General's cross-claims against the United
States, respectively, the court must consider the character of the issue before it: "[w]hether the
Seventh Amendment authorizes a jUly trial in a particular case does not depend on the character of
the overall action, but instead is determined by the nature ofthe issue to be tried." Palmer v. United
States, 652 F.2d 893, 895 (9th Cir. 1981) (internal quotation marks and citations omitted), overruled
on other grounds, White v. McGinnis, 903 F.2d 699 (9th Cir. 1990). "An issue is considered' legal'
when its resolution involves the ascertainment and determination oflegal rights or justifies a remedy
traditionally granted by common law courts." ld. Common law cOUlis traditionally granted a
remedy of damages. ld. at 896.
Here, the claims Plaintiffs and Cascade General allege against the United States involve
resolution of liability for Plaintiffs' injuries, which implicates legal rights traditionally heard by
common law courts. Neither Plaintiffs nor Cascade General are entitled to a jury trial by right on
their claims against the United States; however, the Supreme Court has permitted joinder of
admiralty claims and legal claims even when permitting such results in a jUly trying all the claims.
Fitzgerald, 374 U.S. at 21. In Fitzgerald, the Supreme Court reasoned that ajury is well-suited for
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determining the liability of multiple parties when injUly arises from essentially one accident:
Where, as here, a particular mode of trial being used by many judges is so
cumbersome, confusing, and time consuming that it places completely unnecessaIY
obstacles in the paths of litigants seeking justice in our coutis, we should not and do
not hesitate to take action to correct the situation. Only one trier of fact should be
used for the trial of what is essentially one lawsuit to settle one claim split
conceptually into separate parts because of historical developments.
[d.
The court concludes that there is benefit from an advisOlY jury in the claims Plaintiffs and
Cascade General allege against the United States because Plaintiffs' injuries arose from one fact
pattern where Cascade General, the United States, or both may be liable for Plaintiffs' damages, if
any. Although the United States initiated its cross-claim against Cascade General in admiralty, the
United States' desire to proceed in admiralty without ajury ought to give way to Plaintiffs' election
to seek redress against both Defendants in one civil action when the Plaintiffs' injuries stem from
one accident. Accordingly, Plaintiffs' and Cascade General's request for an advisory jury on their
claims against the United States is granted.
B.
JllIY Trial of the United States' Cross-Claims Against Cascade General
Both the United States and Cascade General agree that their respective cross-claims present
cases of admiralty jurisdiction, which are actions not triable of right by jury under Rule 39©.
(Cascade General's Answer
~
7 (acknowledging cross-claim jurisdiction pursuant to the PYA);
United States' Answer ~ 34.) Having granted Cascade General's request for an advisory jUly on its
cross-claims against the United States, the court now must address whether the United States'
indemnity, contribution, and breach of contract cross-claims will be heard by the advisOlY jUly the
court will empanel. The Ninth Circuit has held that contracts for repair of a ship that is already
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constructed invoke admiralty jurisdiction. See Point Adams Packing Co. v. Astoria Marine Canst.
Co., 594 F.2d 763, 765-66 (9th Cir. 1979) (distinguishing contracts for ship repair from contracts
for ship building). Because the vessel was completed and in service well before the United States
entered into contract with Cascade General for repair, the United States's cross-claims against
Cascade General invoke admiralty jurisdiction. As the court explained earlier in discussing the legal
standards that apply in this case, the invocation of admiralty jurisdiction has traditionally resulted
in trials without juries, but nothing in the Constitution or Federal Rules forbids the use of jUly trials
in admiralty cases. Fitzgerald, 374 U.S. 16,20 (1963).
Courts have permitted indemnity claims based on admiralty contracts to be tried to juries.
See Simko v. C & C Marine Maintenance, Co., 594 F.2d 960,964-65 (3d Cir. 1979) (holding that
an admiralty-based indemnity claim and civil suit for damages may be tried to a jury). In Blake v.
Farrell Lines, Incorporated, 417 F.2d 264 (3d Cir. 1970), a plaintiffbrought a negligence claim for
personal injuries against the shipowners based on diversity jurisdiction, and the shipowners filed
separate indemnity cross-claims against the plaintiffs employer in admiralty, requesting bench trials
on these claims. !d. at 264-65. The indemnity claims were consolidated with the plaintiffs claim
under Rule 42, and, against the shipowners' motion for bench trial, the district court ordered that "all
factual issues [including the indemnity claims] ... be tried to a jUly." See id. at 265 (excluding from
the jUly only the issue of attorney fees in the indemnity claims). The Third Circuit affirmed the
district court's exercise of discretion in permitting a jury trial on the admiralty indemnity claims,
based largely on the Supreme Court's rationale in Fitzgerald. Id. at 266. "[T]he Fitzgerald case is
impOliant because of its implication that, if the circumstances justifY such action, a district court
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exercising section 1333 jurisdiction over a maritime claim may require that the issues of fact be tried
to a jury." ld The Third Circuit noted that Fitzgerald permitted an admiralty claim to be heard to
a jUly in 1963, a time when Admiralty Rule 46Yz mandated that the admiralty court should serve as
fact finder. ld No such mandate exists after the 1966 merger of courts of admiralty with courts of
law and equity, and Rules 38 and 39 currently regulate the availability of jUly trials. ld The COUlt
held that the district court decision to consolidate the admiralty indemnity claims and by them to a
jury was within the judge's discretion under Rule 42 and did not contradict Rules 38 or 39 in any
way. ld.
The Third Circuit explained that consolidation "will save trial time and make for
consistency and efficiency in the disposition of closely related disputes arising out of the same
transaction or mishap." lei
The Third Circuit's reasoning in Blake for permitting a jUly trial in admiralty jurisdiction is
persuasive when a dispute arises out of the same incident because it promotes judicial efficiency and
is consistent with Rule 38 and 39, which permit COUlts to empanel advisory juries when there is no
right to a jury trial. Here, the United States seeks resolution of its financial liability with Cascade
General for Plaintiffs' injuries, which is a legal remedy traditionally granted by courts oflaw. The
carefully preserved right to trial by jury should not be infringed when legal rights are at stake.
Chm!/Jeurs, Teamsters & Helpers, Local 391 v. Ten)', 494 U.S. 558, 565 (1990). Further, resolution
of liability for Plaintiffs' damages, if any, may depend on whether Cascade General breached the
contract it entered with the United States, which will necessarily require resolution of factual
findings on all of the other facts the empaneled jUly and advisOlY jUly will hear. Thus, the court
finds that empaneling an advisOlY jUly on the United States' cross-claims against Cascade General
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is appropriate here, where the ultimate resolution of liability for an accident should be based on
consistent findings of fact.
Conclusion
Plaintiffs' demand for ajury trial on its claims against Cascade General is GRANTED (#45).
Plaintiffs' request for an advisOlY jUly on its claims against the United States is GRANTED (#45).
Cascade General's demand for an advisory jury on its claims against the United States is GRANTED
(#51). The United States' claims against Cascade General will be tried to an advisory jury.
'1L/tA
DATED this ~ day of October, 2011.
J!ohn V. Acosta
Unite. )'itates Magistrate Judge
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