Berman v. American Nat. Red Cross, 3:93cv0377AS.

Citation834 F. Supp. 286
Decision Date06 August 1993
Docket NumberNo. 3:93cv0377AS.,3:93cv0377AS.
PartiesGiselle BERMAN, Plaintiff, v. AMERICAN NATIONAL RED CROSS, Defendant.
CourtUnited States District Courts. 7th Circuit. United States District Court of Northern District of Indiana

Hugo E. Martz, Valparaiso, IN, for plaintiff.

Paul J. Peralta and Kevin D. O'Rear, South Bend, IN, for defendant.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

A. Summary of the Case

The American National Red Cross is a not-for-profit corporation chartered by the Congress of the United States with authority to sue and be sued. Recently the Supreme Court of the United States opined that cases in the United States Courts involving the Red Cross invoked federal question jurisdiction. See, American National Red Cross v. S.G. and A.E., ___ U.S. ___, 112 S.Ct. 2465, 120 L.Ed.2d 201 (1992). Here that Federal question jurisdiction is invoked. The question raised is whether claims in this court against the Red Cross are entitled to a trial by jury under Amendment VII of the Constitution of the United States. The few courts confronting this question have generally answered it in the negative. The question deserves careful attention.

B. Procedural History

On June 2, 1993, Plaintiff Giselle Berman ("Berman"), by counsel, brought a complaint against the American Red Cross ("Red Cross"). Berman alleged in her complaint that the Red Cross, through its authorized agent or employee, negligently attempted to draw her blood and as a direct and proximate cause of said negligence, she suffered excruciating pain, lost wages, medical bills, and has been permanently impaired (Plaintiff's Complaint 1-2). Berman prays for judgment against the Red Cross in a sum which reasonably covered her injuries, damages, costs, and all other just and proper relief. Berman demands a jury trial to decide these issues.

Berman alleges that jurisdiction is conferred upon this court under 28 U.S.C. § 1332 by virtue of diversity of citizenship in that she is a resident and citizen of the State of Indiana, and the Defendant, American National Red Cross, was chartered by Congress as an instrumentality created by the Federal Government, whereby the Defendant has its principal office and domicile in the District of Columbia. Berman also alleges that the amount in controversy exceeds $50,000.

On July 22, 1993, the Red Cross, by counsel, answered Berman's complaint and admitted that federal courts have original jurisdiction over all cases to which the Red Cross is a party, that the domicile of the Red Cross is in the District of Columbia, and that on or about February 4, 1992, Berman attempted to donate blood. The Red Cross denied all other allegations.

On July 26, 1993, a Motion to Strike Demand for Jury Trial and a Supporting Memorandum of Law was submitted to this court by the Red Cross. In their Motion to Strike, the Red Cross alleged that they are a federally chartered organization and an instrumentality of the Federal Congress, and as such, the right to trial by jury granted by the Seventh Amendment of the Constitution does not apply to the Red Cross. The Red Cross requested that this court strike Berman's Demand for a Jury Trial and set this action for trial by the court.

C. Issue Before the Court

The Seventh Amendment right to trial by jury does not apply in actions against the Federal Government. Lehman v. Nakshian, 453 U.S. 156, 160, 101 S.Ct. 2698, 2701, 69 L.Ed.2d 548 (1981). The Red Cross contends that, as a federally chartered instrumentality, 36 U.S.C.A. §§ 1, et seq, it has the same sovereign immunity from trial by jury as the United States. Specifically, this court must sequentially decide the following issues: (1) whether the Red Cross has sovereign immunity, and if so, (2) to what extent is that immunity abrogated by 36 U.S.C.A. § 2 which grants the Red Cross "the power to sue and be sued".

D. Applicable Law and Discussion

The seed which eventually sprouted the American National Red Cross was first sown at the 1863 International Conference at Geneva. The International Conference recommended "that there exist in every country a committee whose mission consists in cooperating in times of war with the hospital service of the armies by all means in its power". 36 U.S.C.A. § 1 (1988 Supp.1993), Preamble, Act Jan. 5, 1905, as amended by Act May 8, 1947, c. 50 §§ 1, 2, 61 Stat. 80. The United States chartered its committee as "The American National Red Cross" in 1905 and continued the charter in 1947. Id. The duties of the Red Cross have since expanded to include peace-time activity as well as hospital service for warring armies.1 To assist the Red Cross in properly executing its duties, Congress determined that the Red Cross should have "the power to sue and be sued in courts of law and equity, State or Federal, within the jurisdiction of the United States." 36 U.S.C.A. § 2 (1988 Supp.1993).

This "power to sue and be sued" language is at the crux of the debate as to whether Berman is entitled to a jury trial; however, the language also has an important bearing upon this court's jurisdiction. In her complaint, Berman alleges that this court has proper jurisdiction under 28 U.S.C. Section 1332 because of diversity of citizenship and because the amount in question exceeds $50,000. However, as this court mentioned previously, the Supreme Court recently held that the Federal charter authorizing the American National Red Cross "to sue and be sued in court of law and equity, State or Federal, within the jurisdiction of the United States" confers original federal jurisdiction; therefore, this court finds it unnecessary and improper to approach this case under § 1332. American National Red Cross v. S.G. and A.E., ___ U.S. at ___, 112 S.Ct. at 2476.

Returning to the discussion of a civil jury trial, this court notes that historically, the right to a civil jury trial was not nearly as absolute as the right to a jury in a criminal trial. The latter was honored in the original Constitution of 1787 as well as Amendment VI, but the right to a civil trial by jury was not. The existence of a right to a civil jury trial and the means of guaranteeing that right was debated by our Founding Fathers at both the Constitutional Convention and during the Constitution's subsequent ratification process. See, James Madison, Notes of Debates in the Federal Convention of 1787, September 12, 1787; The Federalist, No. 83 (Alexander Hamilton). In No. 83 of The Federalist Papers, Alexander Hamilton proclaimed one of the benefits of a jury when he wrote, "The temptations to prostitution, which the judges might have to surmount, must certainly be much fewer while the cooperation of a jury is necessary, than they might be if they had themselves the exclusive determination of all causes." Mr. Hamilton also sought to reassure the "People of New York" that their right to a civil jury trial was secure when he argued that the Constitution's failure to expressly provide for civil jury trials did not by implication abolish civil jury trials.

Notwithstanding the eloquent writings in the Federalist Papers, the people of the various states were more comfortable with written guarantees to protect what they determined were basic rights. Therefore, twelve amendments purporting to guarantee those basic rights were sent for ratification to the states. Of the eleven amendments which were subsequently ratified, (The 27th Amendment ratified in 1993 was one of the original Bill of Rights amendments) Amendment VII provided that:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

U.S. Const. amend. VII.

Reflecting the governing power of the Seventh Amendment, the Federal Rules of Civil Procedure require "the trial of all issues so demanded shall be by jury." Fed.R.Civ.P. 39(a)(2) (1993 ed.). However, the Federal Rules also acknowledge that a civil jury trial is not proper if "the court upon motion or of its own initiative finds that a right of trial by jury of some or all of those issues does not exist under the Constitution or Statutes of the United States." Id.

Conscious of the "common law" language of the Seventh Amendment, courts often look to either the remedy sought or the nature of the suit being brought in order to determine if a right to trial by jury does not exist under the Constitution or Statutes of the United States. For example, "actions that are analogous to 18th-century cases tried in courts of equity or admiralty do not require a jury trial." Tull v. U.S., 481 U.S. 412, 417, 107 S.Ct. 1831, 1835, 95 L.Ed.2d 365 (1987) (dictum citing, Parsons v. Bedford, 3 Pet. 433, 7 L.Ed. 732 (1830)). However, the Supreme Court has also decided that the personality of a party to a suit may dictate whether a civil jury trial will be granted.

In a case involving the Age Discrimination in Employment Act ("ADEA"), the Supreme Court of the United States held that "the Seventh Amendment right to trial by jury does not apply in actions against the Federal Government." Lehman, 453 U.S. at 160, 101 S.Ct. at 2701. The Lehman court held that the United States, as a sovereign, is immune from suit unless it consents to be sued. Moreover, the Supreme Court also indicated that even if Congress waives the immunity from suit, a plaintiff has a right to civil trial by jury against the Government only when Congress affirmatively and unambiguously grants the right to jury trial by statute. The Court explained that immunity from trial by jury is based upon the doctrine of sovereign immunity:

The reason that the Seventh Amendment presumption in favor of jury trials does not apply in action at law against the United States is that the United States is immune from suit, and the Seventh Amendment right to a jury trial, therefore, never existed with respect to a suit against the United States.

Id....

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7 cases
  • Doe v. American Nat. Red Cross
    • United States
    • U.S. District Court — Western District of Wisconsin
    • March 30, 1994
    ...does not exist; one court has held that plaintiffs have the right both to jury trial and to punitive damages. See Berman v. American Red Cross, 834 F.Supp. 286 (N.D.Ind.1993) (no right to jury trial); Barton v. American Red Cross, 826 F.Supp. 412 (M.D.Ala.1993) (same); Barton v. American Re......
  • Conn v. Am. Nat'l Red Cross
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    • U.S. District Court — District of Columbia
    • March 7, 2016
    ...as those enjoyed by the federal government, including immunity from trial by jury.” (emphasis added)); Berman v. Am. Nat'l Red Cross, 834 F.Supp. 286, 292 (N.D.Ind.1993) (“Congress did not affirmatively and unambiguously grant the right to civil jury trial by statute as is required by the L......
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    • U.S. Court of Appeals — Third Circuit
    • March 13, 1995
    ...also subject to punitive damages). Other opinions have denied the right to jury trials against the Red Cross: Berman v. American Nat'l Red Cross, 834 F.Supp. 286 (N.D.Ind.1993); Johnson v. Hospital of Medical College of Pennsylvania, 826 F.Supp. 942 (E.D.Pa.1993); Barton v. American Red Cro......
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    • February 25, 1994
    ...jury trials and punitive damages.2 A number of district courts have agreed with ARC's analysis. E.g., Berman v. American National Red Cross, 834 F.Supp. 286, 291-92 (N.D.Ind.1993); Johnson v. Hosp. of Medical College of Pa., 826 F.Supp. 942, 945 (E.D.Pa.1993); Barton v. American Red Cross, ......
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