Millbrook v. United States Of America et al

Filing 127

ORDER construing Millbrook's motion to strike 126 as request to empanel an advisory jury purusua to FRCP 39(c)(1) & is DENIED as so construed - matter to proceed by bench trial per ct's 6/15/16 order 124 . (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 6/20/16. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KIM LEE MILLBROOK,

:
:
Plaintiff
:
:
v.
:
:
UNITED STATES OF AMERICA, et al., :
:
Defendants
:

CIVIL ACTION NO. 3:12-CV-421
(Chief Judge Conner)

ORDER
AND NOW, this 20th day of June, 2016, upon consideration of the motion
(Doc. 126) to strike by pro se plaintiff Kim Lee Millbrook (“Millbrook”), requesting
that the court strike the United States’ motion (Doc. 122) to redesignate the abovecaptioned matter as a non-jury case, and further upon consideration of the court’s
order (Doc. 124) dated June 15, 2016, wherein the court granted the United States’
motion, concluding that Millbrook’s sole remaining claim against the United States
arises under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671, and that, as an
FTCA complainant, Millbrook is not entitled to a jury trial, see 28 U.S.C. § 2402, and
it appearing that Millbrook acknowledges that he is not entitled to trial by jury and
instead requests that the court convene an advisory jury pursuant to Federal Rule
of Civil Procedure 39(c), see FED. R. CIV. P. 39(c)(1), such that the court will construe
Millbrook’s motion as a request to empanel an advisory jury, and the court noting
that the decision to grant or deny such a request rests entirely within the discretion
of the trial judge, see id.; Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 249 (3d Cir.
2013), and the court concluding that the fact-finding assistance of an advisory jury is

unnecessary in this case and thus declining to exercise its discretion to empanel an
advisory jury pursuant to Rule 39(c), it is hereby ORDERED that:
1.

Millbrook’s motion (Doc. 126) to strike is CONSTRUED as a request to
empanel an advisory jury pursuant to Federal Rule of Civil Procedure
39(c)(1) and is DENIED as so construed.

2.

This matter shall proceed by bench trial as set forth in the court’s
order (Doc. 124) dated June 15, 2016.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania