Opinion
CIVIL ACTION NO. 03-0273
February 12, 2004
MINUTE ENTRY
Before the Court is a Motion to Strike Jury filed by Delta Catering Management, L.L.C. ("Delta Catering") This suit was filed against Transcocean Offshore USA, Inc. on January 28, 2003. In the original Complaint plaintiffs James Gardner and Georgia Gardner stated that "plaintiff brings this action pursuant to the admiralty and general maritime law of the United States." Plaintiff further noted that jurisdiction was proper pursuant to 28 U.S.C. § 1333 based on diversity of citizenship and amount in controversy in excess of jurisdictional limits. On July 9, 2003, an amended complaint was filed adding Delta Catering using the exact same language.
Delta Catering has moved to strike plaintiffs' jury request based on lack of diversity jurisdiction because it contends that plaintiffs and Delta Catering are citizens of Louisiana. As further support, it maintains that because plaintiffs have invoked the admiralty jurisdiction of the Court, a jury trial would be improper.
Plaintiff's aver that at the time of filing suit, plaintiffs had moved to Mississippi. While they still owned a home in Houma, Louisiana, a potential buyer had been found in December. On February 1, 2003, plaintiffs had removed all of their furniture from the Houma domicile and the house was sold in March 2003, Thus, plaintiffs have continuously lived in Mississippi since November 2002. As such, diversity jurisdiction is extent. The issue thus becomes whether by virtue of the declaration noted above, a jury trial in unavailable.
Rule 9(h) of the Federal Rules of Civil Procedure provide in relevant part:
A pleading or count setting forth a claim for relief with the admiralty and maritime jurisdiction that is also within the jurisdiction of the district court on some other ground may contain a statement identifying the claim as an admiralty or maritime claim for the purposes of Rules 14(c), 38(e), 82, and the Supplemental Rules for Certain admiralty and Maritime Claims. . . ."
The United States Court of Appeals for the Fifth Circuit discussing this provision noted that "The first sentence indicates that a suit falling under admiralty as well as diversity jurisdiction will be treated as an admiralty case for purposes of the right to a jury trial (Rule 38(3)) if the pleading contains an "identifying statement" asserting an admiralty or maritime claims." T.N.T. Marine Serv., Inc. v. Weaver Shipyards Dry Docks. Inc., 702 F.2d 585, 587 (5th Cir. 1983) The Court continued, "the plaintiff's case will be treated as one in admiralty "by a simple statement in his pleading to the effect that the claim is an admiralty or maritime claim." Id.; see Webb v. Ensco Marine Company, 121 F. Supp.2d 1049 (E.D. Tex. 2000) (Cobb, J.); Bradley v. Ensco marine Co., 2003 WL 181164 (E.D.La. Jan. 22, 2003) (Duval, J.)
The court in Webb v. Ensco Marine Company, 121 F. Supp.2d 1049 (E.D. Tex. 2000) (Cobb, J.) dealt with a similar situation. In that case, plaintiff settled his Jones Act claim and all that remained was his general maritime law claim against Martin Terminal. Martin sought to strike the jury trial since jurisdiction was based on admiralty and the Jones Act claim was settled. As in this case, there was complete diversity present.
The Webb court relying on T.N.T. Marine Service, Inc., found that the plaintiff had no right to a jury trial, but allowed the plaintiff to amend his complaint citing the liberal procedures for amending complaints found in Fed.R.Civ.Pro. 15. Likewise, this Court finds that as the pleadings stand at this juncture, plaintiffs have no right to a jury trial and the Motion to Strike must be granted.
However, because this matter has been continued and is not even presently set for trial, the Court hereby grants leave to plaintiffs to amend their complaint. The Court will consider such amendment upon proper motion filed and upon giving defendant the opportunity to oppose said motion by demonstrating that it would be unduly prejudiced by such an amendment. Accordingly,
IT IS ORDERED that Motion to Strike Jury filed by Delta Catering Management, L.L.C. is GRANTED IT IS FURTHER ORDERED that plaintiffs may file a Motion to Amend Complaint no later than March 31, 2004.