Consequently, Judge M. Smith would have held that while Produce Pay could sue to recover its investment in contract or tort, it was not entitled to PACA’s protections.ROSS DRESS FOR LESS, INC. V. MAKARIOS-OREGON, LLCIn an issue of first impression, the Court holds that Federal Rules of Civil Procedure 38 and 39 do not entitle a litigant to rely on an opposing party’s jury trial waiver when the party asserting reliance has contractually waived its jury trial rights.Panel: Judges Tallman, Christen, and Block (E.D.N.Y.), with Judge Christen writing the opinion.

Key highlight: “By its terms, Rule 39(c)(2) requires only that the actual ‘verdict’ that was rendered by the jury be given ‘the same effect as if a jury trial had been a matter of right,’ and that command has no further force when, as here, that verdict has been set aside as fundamentally flawed. See FED. R. CIV. P. 39(c)(2). Were we to order a jury trial on remand, we would not be giving ‘effect’ to the jury’s earlier ‘verdict.’

The case is Williams et al. v. Centerra Grp., LLC et al., 1:20-cv-04220, 2022 WL 88586 (D.S.C. Jan. 7, 2022).Plaintiffs were participants in Centerra’s 401(k) plan who alleged that the defendants breached their fiduciary duties in connection with the monitoring of various investment options that had excessive fees and underperformed. The complaint included a demand for a jury trial under Fed. R. Civ. P. 39 and the U.S. Constitution, or, alternatively, for an advisory jury under Fed. R. Civ. P. 39(c)(1).After denying the defendants’ motion to dismiss last fall, the court recently granted defendants’ motion to strike plaintiffs’ jury demand. First, the court concluded that ERISA does not provide a statutory right to a jury trial because plaintiffs’ claims were equitable in nature; they were most akin to those actions traditionally adjudicated in a court of equity based on ERISA’s derivation from the equitable law of trusts.Second, the court observed that the Seventh Amendment only provides a right to a jury trial for suits at common law, i.e., cases implicating legal, rather than equitable, rights.

assment) claim, finding that the plaintiff had failed to show that the doctor’s comments and conduct related to her sex and national origin were so severe and pervasive that they altered the terms of her employment. However, her retaliation claim survived summary judgment and went to trial.DamagesPlaintiff sought damages in the form of both front pay and back pay. Back pay compensates plaintiffs for lost wages and benefits between the time of discharge and the trial court judgment. Front pay is more future-looking, awarding damages for lost compensation during the period between judgment and reinstatement, or in lieu of reinstatement where it is not practical.Under Title VII, front and back pay are equitable remedies awarded by the court. Idaho law is different: under the IHRA, front and back pay are legal remedies awarded by a jury. Here, where both legal and equitable claims were present, the court held that it would empanel an “advisory” jury on the issue of equitable damages under Rule 39(c) of the Federal Rules of Civil Procedure. Notably, with an advisory jury, the court would not be bound by the jury’s determination.As noted above, last fall the jury found the defendant liable for retaliation and awarded the plaintiff $300,000 in back pay and $1.35 million in front pay. On June 15, 2023, however, the court issued its Findings of Fact and Conclusions of Law on Issues of Front and Back Pay. The court adopted the jury’s finding of $300,000 in back pay, but declined to adopt the jury’s front pay award, finding the front pay period determined by the jury—31 years—too speculative to stand and contrary to the general Ninth Circuit rule that “front pay is intended to be temporary in nature.” Such an award, in the court’s opinion, would constitute an unjustified windfall.Exercising its discretion with respect to the advisory jury award, the court shortened the front pay period to 2.25 years, thus lowering the award of front pay to $130,333—a roughly 90% decrease. Thus, in total, the court awarded plaintiff back pay f

However, the court held that “ordinary summary-judgment procedures” must be followed in cases where the administrator lacked discretionary authority. Thus, the court concluded that “[p]arties that wish the district court to exercise its factfinding function under Federal Rules of Civil Procedure 39(b) and 52(a)(1) to decide the case on the administrative record should ask the district court to do exactly that.” Otherwise, “[i]f instead a party moves for summary judgment under [Rule] 56, then the district court must follow the procedures outlined in that rule and grant summary judgment only if ‘there is no genuine issue as to any material fact’ and ‘the moving party is entitled to judgment as a matter of law.’” Ultimately, the court held that the error was harmless because the district court’s determination that plaintiff was unable to perform sedentary-duty work was not clearly erroneous and neither party had additional evidence for the court to consider.

Federal laws, such as the Fair Labor Standards Act and the Internal Revenue Code, require analysis of different factors as well. Employers should consult with counsel to conduct an appropriate and efficient review of contractor relationships that contemplates changes in the case law, the employer’s specific situation, and increased litigation over independent contractor status.1 Because jury trials are generally not permitted in ERISA cases, the court impaneled an advisory jury under Federal Rule of Civil Procedure 39(c)(1). The jury’s decision was not binding, and the court allowed the parties to submit proposed findings of fact and conclusions of law following the jury’s decision.2 These factors include: the skill required; the source of instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the individual; the extent of the individual’s discretion over when and how long to work; the method of payment; the individual’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; the provision of employee benefits; and the tax treatment of the individual.

In contrast, the Court concluded that the Successor and Assign Defendant was entitled to enforce the jury trial waiver because the mortgage expressly provided that the covenants and agreements contained therein inured to the benefit of the original lender's successors and assigns. Finally, the Court granted the plaintiff's request to try this case with an advisory jury under Federal Rule of Civil Procedure 39(c) and ruled that the plaintiff's claims against both defendants would be tried together. At trial, the jury will provide a binding verdict as to all claims against the Loan Servicer Defendant and is to provide an advisory opinion to the Court as to all claims against the Successor and Assign Defendant.

In contrast, the Court concluded that the Successor and Assign Defendant was entitled to enforce the jury trial waiver because the mortgage expressly provided that the covenants and agreements contained therein inured to the benefit of the original lender's successors and assigns. Finally, the Court granted the plaintiff's request to try this case with an advisory jury under Federal Rule of Civil Procedure 39(c) and ruled that the plaintiff's claims against both defendants would be tried together. At trial, the jury will provide a binding verdict as to all claims against the Loan Servicer Defendant and is to provide an advisory opinion to the Court as to all claims against the Successor and Assign Defendant. - Alan S. Petlak, Christopher N. Tomlin, and Jenny N. PerkinsNew Jersey Enacts Provisions Concerning the Recording of Mortgages and Foreclosure of Mortgages The state of New Jersey has enacted provisions related to the recording of mortgages and foreclosure of mortgages.

Lastly, the Court granted defendant’s motion to strike plaintiff’s demand for jury trial based on a jury trial waiver in the defendant’s contract with the county; however, the plaintiff, who was not a party to that contract, was entitled to a jury trial for its own negligence claim. Pursuant to Fed R. Civ. Pro. 39(c)(1), the Court concluded it would try the claims together and enlist a jury to provide a binding verdict for the plaintiff’s negligence claim and an advisory verdict on the county’s assigned claims. H & J Contracting, Inc. v. Jacobs Engineering Group, Inc., 2015 WL 6504543 (S.D. Fla.

As an initial matter, the Federal Circuit rejected S&N’s argument that the jury verdict was “advisory” and therefore not binding. The Court held that because the district court did not use the term “advisory jury” to denote a jury under Fed. R. Civ. P. 39(c)(1), the cases cited by S&N were irrelevant. The Court concluded that the district court instead used the term “advisory jury” to indicate that the jury was permissibly given a legal issue whose ultimate determination was reserved for the court.