Bethea v. Merchants Commercial Bank

Decision Date01 April 2015
Docket NumberCivil Action No. 11-51
PartiesJIMMY BETHEA, Plaintiff, v. MERCHANTS COMMERCIAL BANK, et al., Defendants.
CourtU.S. District Court — Virgin Islands

AMBROSE, U.S. Senior District Judge

Memorandum Opinion and Order

Defendants Merchants Commercial Bank, James E. Crites, William B. Cashion, I. Steven Simon, J. David McCay, and Michael B. Burgamy (collectively, the "MCB Defendants" or "Bank Defendants") and Defendants BoltNagi, PC ("BoltNagi") and Tom Bolt ("Bolt") (jointly "Attorney Defendants") timely filed two sets of omnibus pretrial motions. When Plaintiff's failure to comply with pretrial deadlines necessitated that I reschedule the trial from January 2015 to May 2015, I allowed Defendants to file additional motions in limine, over Plaintiff's objection. Attorney Defendants filed their first omnibus Motion in Limine at ECF No. [692] and the Bank Defendants filed their first omnibus Motion in Limine at ECF No. [693] with an accompanying brief at ECF No. [694]. Plaintiff responded to the first set of motions in limine at ECF Nos. [716] (Opposition to Bank Defendants' Motion) and [717] (Opposition to AttorneyDefendants' Motion). Defendants sought leave for and filed Replies at ECF Nos. [728] (Attorney Defendants) and [730] (Bank Defendants). Defendants also timely filed additional Motions in Limine at ECF Nos. [729] (Attorney Defendants) and [731] (Bank Defendants) with an accompanying brief at ECF No. [732]. Plaintiff responded at ECF Nos. [734] (Opposition to Attorney Defendants' Supplemental Motion) and [735] (Opposition to Bank Defendants' Supplemental Motion). I note, also, that the parties expounded on their motions in the "special problems" section of the Joint Final Pretrial Order filed at ECF No. [740]. The issues are now ripe for review. Having carefully considered the parties' motions, Plaintiff's responses thereto, and any replies, I find that Defendants' motions should be granted in part and denied in part, as described more fully herein. I address the contested evidence in seriatim, as the parties have presented it.

MCB Defendants' First Omnibus Motion in Limine - ECF No. 693
1. Defendants' motion to sever certain claims and order a separate trial is denied.

A. Plaintiff is not entitled to a jury trial on his COBRA claim. Although Plaintiff has amended his Complaint on four occasions during this lengthy litigation, at no time did he amend his COBRA Count to include the particular enforcement provision of ERISA under which he seeks "reinstatement of his health insurance, reimbursement of medical bills, and continuation of his health insurance premium payments." Fourth Amended Verified Complaint, ECF No. 516, Count VIII ¶¶ 154-56; see Section 502(a) of ERISA, 29 U.S.C. § 1132.1 It is Plaintiff's responsibility to set forth the factual details in support of his claims.

Count VIII, as articulated by Plaintiff, appears to request equitable relief. The Third Circuit has found that causes of action authorized by section 502(a)(3) provide only equitable relief, Cox v. Keystone Carbon Co., 861 F.2d 390, 393 (3d Cir. 1988), and that while causes of action authorized by section 502(a)(1)(B) "are not explicitly denominated as equitable . . . [a] cause of action [under this section] for the recovery of benefits [is] equitable in nature." Pane v. RCA Corp., 868 F.2d 631 (3d Cir. 1989) (citing Turner v. CF & I Steel Corp., 770 F.2d 43, 48 (3d Cir. 1985) as well as other appellate courts). Because I find that Plaintiff articulates a claim for relief that is equitable and not legal in nature, he is not entitled to a jury trial on his COBRA claim at Count VIII.

B. The Court will submit Plaintiff's Whistleblower Claim to an advisory jury. The parties disagree as to whether the statue pursuant to which Plaintiff pursues his retaliatory discharge claim--Section 1831j, the whistleblower protection provision of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 or "FIRREA," affords litigants the right to a jury trial. ECF No. 694, 2-3 (MCB) & ECF No. 716, 6-7 (Plaintiff). Defendant MCB argues (i) the Act contemplates that determination of a violation and any remedies flowing therefrom must be made by the Court, and (ii) the statutory language is analogous to the whistleblower provision of the Sarbanes-Oxley Act ("SOX") where federal courts have found no right to a jury trial.2 ECF No. 694, 2-3. Conversely, Plaintiff likens FIRREA's remedies language to that under the False Claims Act's ("FCA") remedial provision, arguingthose similar whistleblower claims were submitted to a jury.3 ECF No. 716, 6-7. Plaintiff further argues he is entitled to a jury trial under the Seventh Amendment. ECF No. 716, 5.

When determining whether a litigant who has brought a claim pursuant to a federal statue is entitled to a jury trial, a court must look to the "construction of the statute" before engaging in an analysis of the applicability of the Seventh Amendment. Tull v. United States, 481 U.S. 412, 417 n.3 (1987); Stoneback v. Artsquest, Civ. No. 12-3286, 2012 WL 4963624, at *4 (E.D. Pa. Oct. 17, 2012) (citing Pichler v. UNITE, 542 F.3dd 380, 387 (3d Cir. 2008) (quoting City of Monterey v. Del Monte Dunes, 526 U.S. 687 (1999))). Here, the pertinent portion of FIRREA's whistleblower protection provision states: "Remedies- If the district court determines that a violation of subsection (a) of this section has occurred, it may order [the violator]--(1) to reinstate the employee to his former position; (2) to pay compensatory damages; or (3) take other appropriate actions to remedy any past discrimination." 12 U.S.C. 1831j. I find that the whistleblower provision is silent with respect to a litigant's right to a jury trial.

Where the construction of a statute is silent regarding the right to a jury trial, a court must then determine if one is required under the Seventh Amendment. Tull, 481 U.S. at 417 n.3 (1987); see also Stoneback, 2012 WL 4963624, at *4 (citing Pichler, 542 F.3d at 387). It is well-established that the Seventh Amendment "embodies a 'federal policy favoring jury trials [and] . . . [t]his right must be 'determined according to federal law' in order to achieve the 'uniformity . . . demanded by the Seventh Amendment.' " Stoneback, 2012 WL 4963624, at *4 (citing Simler v. Conner, 372 U.S. 221, 222 (1963) (per curium)). The Supreme Court hasprescribed a two-part test to see whether a jury trial is constitutionally required by the Seventh Amendment:

1. Whether the cause of action "either was tried at law [(as opposed to equity or admiralty)] at the time of the founding or is at least analogous to one that was; and 2. If the action in question belongs in the law category . . . whether the particular trial decision must fall to the jury in order to preserve the substance of the common-law right as it existed in 1791.

Id. (quoting Del Monte Dunes, 526 U.S. at 707) (internal citations omitted). "As a general rule, the right to a jury trial is protected by the Seventh Amendment when the claim is a legal one, but not if it is equitable." Hatco Corp. v. W.R. Grace & Co. Conn., 59 F.3d 400, 411 (3d Cir. 1995). "Determination of whether a statutory action falls into the legal category, as opposed to equity or admiralty categories, entails inquiries into both the nature of the statutory action and the remedy sought." Stoneback, 2012 WL 4963624, at *5 (citations and quotations omitted in original). "An action is sufficiently analogous to one extant in the 18th century when it "sounds basically in tort [meaning it provides] redress for violations of rights created by constitution or statute." Id. at *5. Still, the Supreme Court instructs that "characterizing the relief sought is more important than finding a precisely analogous common-law cause of action . . . ." Id. (quoting Tull, 481 U.S. at 421) (internal quotations and citations omitted). "[T]he Supreme Court has stated that, in general, money damages are legal relief where they are intended [to] compensate the plaintiff for her loss or punish the wrongdoer." Id. (citing Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 352 (1998)). "Equitable relief, by contrast, is identified by its measurement according to the value of the wrongdoer's ill-gotten gains." Id. (citing Del Monte Dunes, 526 U.S. at 710). When a plaintiff brings both legal and equitable claims, "the legal claim must be tried to ajury first, or at least simultaneously with the equitable claim . . . accepting the jury's findings on common facts for all purposes." Id. (internal citations and quotations omitted).

Here, the parties do not cite, nor have I found, cases wherein the Third Circuit directly addresses whether whistleblowers have a right to a jury trial pursuant Section 1831j. Because the whistleblower statute at issue protects employees' job interests by prohibiting retaliatory adverse employment action and authorizing courts to award compensatory damages for such violations, I find that a claim brought pursuant to the Act sounds basically in tort. See 12 U.S.C. § 1831j. Nonetheless, I agree with those courts which find it difficult to analogize this claim to one from the eighteenth century. See Stoneback, 2012 WL 4963624, at *9 (analogizing whistleblower claim to wrongful or retaliatory discharge claims and concluding that it is unlikely that a cause of action similar to a whistleblower claim existed at the time the Seventh Amendment was adopted and citing Spinelli v. Gaughan, 12 F.3d 853 (9th Cir. 1993) (finding retaliatory discharge "a creature of the twentieth century"); Schmidt v. Levi Strauss & Co., 621 F. Supp. 2d 796, 801 (N.D. Cal. 2008) (finding wrongful discharge at common law)). Moreover, I find that the statute offers both legal and equitable relief because it allows for reinstatement (equitable) but monetary redress for the interference with a litigant's protected personal or property interest—his job (legal)....

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