D&S Marine Service, L.L.C. v. Encarnacion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA D&S MARINE SERVICE, L.L.C. CIVIL ACTION VERSUS NO: 19-1702 JOSIAH ENCARNACION SECTION: T ORDER Before the Court is a Motion to Strike Demand for Jury Trial1 filed by D&S Marine Service, L.L.C. (“Plaintiff”). Defendant and plaintiff-in-counterclaim, Josiah Encarnacion (“Defendant”) has filed an opposition.2 For the following reasons, the motion is GRANTED. BACKGROUND This case arises out of a Plaintiff’s complaint seeking a declaratory judgment that Plaintiff had no obligation to pay maintenance and cure to Defendant, its allegedly injured Jones Act employee.3 The complaint designated Plaintiff’s claim as an admiralty and maritime claim within the meaning of 9(h) of the Federal Rules of Civil Procedure, and Plaintiff, therefore, did not elect a jury trial.4 Defendant filed an answer and counterclaim asserting claims under the Jones Act and general maritime law.5 Defendant designated its claims for maintenance and cure, and associated damages, as admiralty claims brought pursuant to Rule 9(h), and simultaneously requested a trial by jury.6 Defendant subsequently filed an amended counterclaim and, again, asserted claims for maintenance and cure arising in admiralty pursuant to Rule 9(h) and requested a trial by jury.7 1 R. Doc. 32. 2 R. Doc. 38. 3 R. Doc. 1. 4 R. Doc. 1. 5 R. Doc. 8. 6 R. Doc. 8, ¶¶10-11. 7 R. Doc. 28, ¶¶11-12. Plaintiff filed a motion to strike Defendant’s jury trial demand contending that it is wellsettled within the Fifth Circuit that a plaintiff’s invocation of the admiralty jurisdiction precludes a trial by jury.8 Defendant contends that he is entitled to a trial by jury pursuant to Rule 38 and under 28 U.S.C. §1331 (1).9 LAW AND ANALYSIS Pursuant to Federal Rule of Civil Procedure Rule 9(h), a plaintiff whose claim is cognizable within the Court’s “admiralty or maritime jurisdiction and also within the court’s subject-matter jurisdiction on some other ground” may choose to designate the claim as an admiralty or maritime claim.10 Designating a claim as an admiralty or maritime claim under Rule 9(h) carries with it “numerous and important consequences.”11 Particularly, a plaintiff who elects to bring a suit under admiralty jurisdiction is not entitled to a trial by jury.12 In this case, both Plaintiff and Defendant allege admiralty jurisdiction in their complaints. Plaintiff alleges “[t]his is an admiralty and maritime claim within the meaning of Rule 9(h) of the Federal Rules of Civil Procedure. Subject matter jurisdiction is conferred by 28 U.S.C. § 1333 .”13 Defendant alleges that “[j]urisdiction is based upon the Jones Act, 46 USC 688, and the General Maritime of the United States [sic].”14 Such statements are considered a Rule 9(h) election. Furthermore, diversity jurisdiction is not pled in any complaint, answer, or counter-claim. Plaintiff and Defendant both opted to proceed in admiralty. Thus, Plaintiff and Defendant have invoked the distinct features and remedies of admiralty jurisdiction, including the procedural consequence of a non-jury trial. Therefore, this Court agrees Defendant’s jury demand should be stricken. 8 R. Doc. 32-1, p.2. 9 R. Doc. 38, p.2. 10 Fed. R. Civ. P. 9(h). 11 T.N.T. Marine Serv., Inc. v. Weaver Shipyards & Dry Docks, Inc., 702 F.2d 585, 586 (5th Cir. 1983). [12] Id. at 587 ; see also Becker v. Tidewater, Inc., 405 F.3d 257, 259 (5th Cir. 2005). 13 R. Doc. 1, ¶3. 14 R. Doc. 8, ¶1. CONCLUSION Accordingly, for the foregoing reasons, IT IS ORDERED that the Motion to Strike Demand for Jury Trial!° is GRANTED and the jury demand is stricken. New Orleans, Louisiana, on this 24th day of January, 2020. GREG GERARD GUIDRY ~| UNITED STATES DISTRICT JUDGE SR. Doc. 32.