Opinion
No. 99-3797
October 13, 2000
MINUTE ENTRY
ORDER
Plaintiff has filed a Motion to Strike the Jury Request contained in Defendant's Answer to the Supplemental and Amending Complaint. After considering the submissions of the parties, the record and the relevant law, the Court hereby DENIES Plaintiff's Motion to Strike. This matter will be tried to jury on October 23, 2000.
Background
Plaintiff alleges that, while working as fisherman and member of the crew of a vessel owned and/or operated by the Defendant in July, 1999, he suffered injuries due to the Defendant's negligence and/or the unseaworthiness of Defendant's vessel. In his original complaint, Plaintiff asserted claims under the Jones Act, 46 App. U.S.C. § 688, and general maritime law, pursuant to 28 U.S.C. § 1333, and requested a trial by jury. At that time, Plaintiff also averred that the parties were diverse. See Plaintiff's Complaint at 1. Defendant did not raise the issue of diversity jurisdiction or a jury trial in its Answer.
Plaintiff later filed a First Supplemental and Amending Complaint (hereinafter "Amended Complaint"), designating his claim as an admiralty or maritime claim for the purposes of Federal Rule of Civil Procedure 9 (h). See Plaintiff's Amended Complaint at 1. Defendant registered no objection to Plaintiff's Amendment when filed on July 7, 2000. Two months later, in its Answer to Plaintiff's Amended Complaint, Defendant asserted its right to a trial by jury as to the Plaintiff's unseaworthiness and maintenance and cure claims. See Answer of Omega Protein, Inc. to Plaintiff's First Supplemental and Amending Complaint at 2. The issue of whether this matter would be tried to the Court or to a jury had not yet been resolved at the time of the Pre-Trial Conference, which was held on October 3, 2000. Therefore, the Court directed the parties to brief the issue of Defendant's entitlement to a jury trial in spite of the Plaintiff's 9(h) designation. Plaintiff has filed a Motion to Strike the jury request in Defendant's Answer, and Defendant has opposed the Motion and presented its argument as to why the Court is required to preserve its right to a jury trial.
Analysis
The issue in this case is very similar to that presented in Woodard v. Diamond Offshore Drilling. Inc., 2000 WL 174889:
[T]he question raised by [Plaintiff's] attempt to supplement and amend his complaint is: Whether a plaintiff, "through the device of amending his complaint to state admiralty and maritime claims under Rule 9(h), effectively withdraws his demand for jury trial without compliance with the specific procedures set forth in Federal Rule of Civil Procedure 39(a) for the withdrawal of such demands?'See id. at 2 (quoting Johnson v. Penrod Drilling Co., 469 F.2d 897, 902 (5th Cir. 1972), reh'gen banc on other matters, 510 F.2d 234 (5th Cir. 1975), cert. denied by 423 U.S. 839, and sub.nom Starnes v. Penrod Drilling Co., 423 U.S. 839 (1975)).
In Woodard, as in this case, the Plaintiff "did not explicitly invoke this Court's diversity jurisdiction." See id. Like Woodard, there is diversity in fact among the parties in this case. Therefore, the Court finds its reasoning in Woodard to be sufficient to provide an answer for this case as well: "Having properly invoked their Seventh Amendment right to a jury trial, the Dcfendant's cannot be deprived of that right by [Plaintiff's] unilateral change of mind." See id. at 3.
Plaintiff also alleges that Defendant has waived his right to a jury trial by waiting to assert this right in his Answer, two months after Plaintiff amended his original complaint. See Fed.R.Civ.P. 38(d) (requiring that a party request a jury "not later than 10 days after the service of the last pleading directed to such issue"). However, the Court may relieve a party from waiver of its right to a jury when such a demand might have been made by right. See Fed.R.Civ.P. 39(b).
Plaintiff relies on the factors delineated in Daniel Int'l Corp. v. Fischbach, 916 F.2d 1061, 1064 (5th Cir. 1990) to support his position that granting a jury trial at this juncture would unduly prejudice his rights. The jury issue was raised by the Defendant over six weeks before trial in its Answer to the Amended Complaint, and therefore, Plaintiff, who originally conceived of this matter as a jury trial, was on notice that its Amended Complaint may not have been sufficient to remove this case from the jury. "The right to jury trial is too important and the usual procedure for its waiver is too clearly set out by the Civil Rules for courts to find a knowing and voluntary relinquishment of the right in a doubtful situation." Jennings v. McCormick, 154 F.3d 542, 545 (5th Cir. 1998).
For the foregoing reasons, the Plaintiff's Motion to Strike Defendant's Request for a Jury is DENIED. Counsel shall submit proposed special jury charges, proposed special voir dire questions and proposed jury interrogatories no later than Monday. October 16. 2000. at 5:00 p.m. No other deadlines from the Pre-Trial Order are affected by this ruling.