Deep Down, Inc. v. Sub Sea Recovery, LLC

• Decision Date: 21 May 2014
• Docket Number: No. 2:13-cv-209-GZS,2:13-cv-209-GZS
• Parties: DEEP DOWN, INC., Plaintiff v. SUB SEA RECOVERY, LLC d/b/a SUB SEA RESEARCH, LLC, et al., Defendants
• Court: U.S. District Court — District of Maine

DEEP DOWN, INC., Plaintiff v. SUB SEA RECOVERY, LLC d/b/a

SUB SEA RESEARCH, LLC, et al., Defendants

No. 2:13-cv-209-GZS

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

Dated: May 21, 2014

MEMORANDUM DECISION AND ORDER ON PLAINTIFF'S MOTION TO REMOVE

CASE FROM JURY TRIAL LIST AND STRIKE DEFENDANT'S JURY DEMAND

Plaintiff Deep Down, Inc. ("DDI") moves to remove this case from the court's jury trial list and strike the jury demand made by defendant Sub Sea Recovery, LLC d/b/a Sub Sea Research, LLC ("SSR") with respect to its counterclaim against DDI. See Plaintiff's Motion To Remove Case From Jury Trial List and To Strike Defendant's Demand for Jury Trial ("Motion") (ECF No. 29) at 1. For the reasons that follow, the Motion is granted insofar as it seeks to strike SSR's jury demand and deemed moot insofar as it seeks the removal of the case from the court's jury trial list.¹

I. Background

On June 5, 2013, DDI filed a verified complaint in admiralty, pursuant to Federal Rule of Civil Procedure 9(h), against SSR and the M/V Sea Hunter in rem, asserting a claim of breach of contract against SSR and seeking to foreclose a maritime lien against the M/V Sea Hunter. SeeVerified Complaint ("Complaint") (ECF No. 1) ¶¶ 5, 14-26.² In its complaint, DDI alleged that, on September 1, 2012, it entered into a salvage contract with SSR to provide a remotely operated vehicle ("ROV") and the services of DDI personnel to aid SSR and its affiliates in a quest to salvage a sunken vessel known as the S.S. Port Nicholson. See id. ¶¶ 9-11. It complained that, although it had provided equipment and services pursuant to the contract, SSR had refused to pay for them. See id. ¶¶ 12-13.

On July 3, 2013, SSR filed its answer and counterclaim, asserting claims against DDI for breach of contract and unjust enrichment based on DDI's alleged equipment and personnel failures in its performance under the parties' September 1, 2012, contract. See generally Counterclaim, commencing on page 6 of Answer and Counterclaim of Defendant (Sub Sea Research, LLC) (ECF No. 7). SSR alleged that the court had original and diversity jurisdiction over the case and over SSR's counterclaim pursuant to 28 U.S.C. §§ 1332 and 1333. See id.¶ 3. It stated: "SSR demands a trial by jury on all issues so triable." Id. at 11.

On July 4, 2013, the court issued a scheduling order in which it noted that a jury trial had been demanded. See Scheduling Order with incorporated Rule 26(f) Order ("Scheduling Order") (ECF No. 9) at 1. The Scheduling Order stated, in relevant part: "Unless an objection to this Order and a proposed discovery plan are filed by July 24, 2013, the Court will conclude that the required Rule 26(f) conference has taken place and that the terms and deadlines established in this proposedscheduling order have been agreed to." Id. Neither side filed an objection by July 24, 2013. See ECF Docket.

On July 18, 2013, DDI answered SSR's counterclaim. See Answer to Counterclaim (ECF No. 11). It did not mention SSR's demand for a jury trial. See id.

On January 9, 2014, the court notified the parties that this case had been placed on Judge Singal's March 3, 2014, jury trial list. See ECF No. 28. On January 21, 2014, the plaintiff filed the Motion. See Motion. On January 27, 2014, I granted nearly identical motions by the parties to extend their deadline to file pretrial memoranda, with the modification that I stayed all pretrial deadlines pending the court's final ruling on the Motion, canceled the parties' scheduled final pretrial conference, removed the case from the March jury trial list, and directed that the Clerk's Office convene a further status teleconference with counsel following the court's final ruling on the Motion. See ECF No. 35.

II. Discussion

DDI seeks to strike SSR's jury demand on the basis that granting a jury trial to SSR would effectively undermine DDI's choice pursuant to Federal Rule of Civil Procedure 9(h) to forgo a jury trial, given that the claims and counterclaim are too intertwined to proceed separately. See Motion at 3.

SSR opposes the Motion on the bases that (i) it is untimely, DDI fails to demonstrate good cause for its untimeliness, and SSR would be prejudiced if its jury demand were struck, (ii) DDI cannot strike SSR's jury demand without SSR's consent, which SSR will not grant, and, (iii) on the merits, certain cases relied on by DDI are distinguishable. See Defendant's Memorandum of Law in Opposition to Plaintiff's Motion To Remove Case From Jury Trial List and To Strike Defendant's Demand for Jury Trial ("Opposition") (ECF No. 34) at 2-8.

DDI rejoins that its Motion was not untimely, SSR demonstrates no prejudice, SSR's consent is not required, and SSR objects "only perfunctorily" to the merits of its argument. See Plaintiff's Reply to Defendant's Opposition to Plaintiff's Motion To Remove Case From Jury Trial List and To Strike Defendant's Demand for Jury Trial ("Reply") (ECF No. 37) at 2-7.

For the reasons that follow, I conclude that the Motion is both timely and meritorious.

A. Timeliness

SSR contends that DDI waived its right to challenge SSR's demand for a jury trial when it answered SSR's counterclaim without challenging the jury demand or then filing a motion to strike it. See Opposition at 2. It contends that, in any event, waiver occurred when DDI (i) failed to object to the scheduling order, in which the court noted that a jury trial was demanded, and (ii) waited until one month after the parties had been notified that the case had been placed on a jury trial list, and seven weeks before the then-scheduled jury empanelment, to raise the issue. See id. at 2-4.

SSR cites no authority for the proposition that " the procedurally appropriate time to make this known would have been in [DDI's] Answer to SSR's breach of contract claim or via an accompanying motion - at the commencement of the action." Id. at 2. As DDI points out, see Reply at 4-5, this court has held otherwise, see, e.g., South Port Marine, LLC v. Gulf Oil Ltd. P'ship, 56 F. Supp.2d 104, 107 (D. Me. 1999) (rejecting plaintiff's claim that "the defendants waived any objection to the use of a jury in this case by waiting until the eve of trial to make their motion to strike"; observing, "The issue here really is not one of waiver because the court can deny an inappropriate request for a jury without a party's motion. See Fed.R.Civ.P. 39(a). Had the defendants suffered a jury trial in silence, I would not hesitate to hold that they had consented to a jury trial under Rule 39(c). In this case, however, on the eve of trial the defendants opposed theuse of a jury. Since there was at least doubt whether there was sufficient consent to satisfy Rule 39(c), I exercised my discretion not to order such a trial and initiated instead an inquiry under Rule 39(a) as to the plaintiff's right to a jury trial"); see also United States v. JMG Excavating & Constr. Co., No. 03-134-P-S, 2005 WL 1412445, at *4-*5 (D. Me. May 24, 2005) (holding that, even though, unlike in South Port Marine, party demanding jury trial had not done so pursuant to Rule 39(a), motion to strike that jury demand was not untimely when it was "brought before the trial date"); Jones-Hailey v. Corporation of the Tenn. Valley Auth., 660 F. Supp. 551, 553 (E.D. Tenn. 1987) (Rule 39(a) "contains no time limit within which [the defendant] was required to object to [the plaintiff's] jury demand. This Court cannot impose a right to a jury trial where none exists even though [the defendant] waited until one month before the scheduled trial date to move the Court to strike the jury demand.").³

Nor did DDI waive its challenge by failing to object to the scheduling order. As DDI notes, see Reply at 3, the court merely observed therein that a jury trial had been demanded. It made no determination that the jury demand had merit, set no deadline for the filing of any motion relating to that demand, and did not, as SSR contends, confirm "what the parties plead - that SSR sought, was entitled to, and could expect a jury trial." Opposition at 2-3 (emphasis omitted). Nor did the scheduling order place the case on a "jury trial track as was pleaded by SSR." Id. at 3 (footnote omitted). It placed the case on the Standard Track, an assignment that does not address the issue of whether a case is to be tried to a jury. See Scheduling Order at 1; Loc. R. 16.3(b). While, asSSR notes, see Opposition at 4, the discovery deadline and the deadline for filing dispositive and Daubert motions had passed as of the time of the filing of the Motion, they are inapposite.

Nor, finally, did DDI waive any right to move to strike the jury demand by waiting, by my count, until 12 days after publication of notice that the case had been placed on the trial list and six weeks prior to jury empanelment. As noted above, this court has rejected "eve-of-trial" challenges to motions to strike jury demands. See JMG, 2005 WL 1412445, at *4-*5; South Port Marine, 56 F. Supp.2d at 107.

The Motion having been timely filed, I need not consider SSR's arguments that DDI failed to show good cause for the purported untimeliness and that, in any event, the allowance of the Motion at this late date would prejudice SSR, which invested time preparing to present this case to a jury. See Opposition at 4-8.⁴

B. Asserted Need for SSR's Consent

SSR cites Federal Rules of Civil Procedure 38(d) and 39(a) for the proposition that, because its demand for a jury trial was properly made, relied upon, and acknowledged by the parties and the court, both parties must consent before it can be withdrawn. See Opposition at 6. It makes clear that it does not consent. See id.

Rule 38(d) provides, "A party waives a jury trial unless its demand is properly served and filed. A proper demand may be withdrawn only if the parties consent." Fed. R. Civ. P. 38(d). Rule 39(a) provides:

When a jury trial has been demanded under Rule 38, the action must be designated on the docket as a jury action. The trial

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