MORRISON v. BARRY GRAHAM OIL SERVICE

BARBIER, Judge

Before the Court are (1) Robert Morrison's Motion for Partial Summary Judgment on Maintenance and Cure (Rec. Doc. 26); and (2) State Farm's Motion to Designate Trial by Jury (Rec. Doc. 31). Both motions are opposed. The motions, set for hearing on Wednesday December 5, 2001, are before the Court on briefs without oral argument.

Motion for Partial Summary Judgment

A review of the record in this matter reveals that genuine factual issues exist which preclude the grant of summary judgment on plaintiff's maintenance and cure claim. See, FED. R. Civ. P. 56. However, at plaintiff's request, the Court will sever the maintenance and cure claim and schedule an expedited bench trial on maintenance and cure.

Motion to Designate Trial by Jury

State Farm has moved to designate the diversity/negligence action (Civil Action 00-3163) as a jury trial. The record reveals that when filing suit, plaintiff made a jury demand in this action; State Farm likewise made a jury demand in its answer. Subsequently, the Court held a preliminary conference in the related admiralty case (Civil Action 00-3162), and at that time, as memorialized in the Court's scheduling order, designated the admiralty case as non-jury.

Counsel for State Farm was in attendance at the preliminary conference in 00-3162, even though it is not and never was a party to that suit, due to a clerical error in which its counsel inadvertently filed a motion related to 00-3163 in the record of 00-3162. While present at the conference, State Farm's counsel explained the error to the courtroom deputy, and did not make any objection when Civil Action 00-3162, an admiralty action to which it was not a party, was designated as a non-jury trial.

Shortly thereafter, the matters were consolidated, and State Farm apparently did not realize that its jury demand in 00-3163, the negligence action, had not been "picked up" by the clerk's office when designating the case.

However, a review of the record and the docket sheet makes it plain that State Farm demanded a jury trial on issues triable of right by a jury in the fashion prescribed by the Federal Rules. See FED. R. Civ. P. 38. State Farm has not subsequently waived its demand by written or oral stipulation made in open court as required by the Federal Rules; and the Court cannot accept plaintiff's argument that State Farm's failure to object to a non-jury trial in an admiralty action to which it was not a party during the March 15, 2001 preliminary conference, constitutes such a waiver. Further, under the Constitution of the United States, State Farm is entitled to trial by jury on the negligence/diversity action. See FED. R. Civ. p. 39(a). Accordingly;

IT IS ORDERED that Robert Morrison's Motion for Partial Summary Judgment on Maintenance and Cure (Rec. Doc. 26) should be and is hereby DENIED. If plaintiff desires a severed, expedited trial on maintenance and cure only, plaintiff's counsel should contact the Court as soon as possible to schedule a brief telephone conference to select a date and time for the severed maintenance and cure trial;

IT IS FURTHER ORDERED that State Farm's Motion to Designate Trial by Jury (Rec. Doc. 31) should be and is hereby GRANTED, and the issues raised in Civil Action 00-3163 shall be tried to a jury.