Admiralty Defendant Still May Demand Jury Based On Counterclaims

A plaintiff bringing a case that satisfies the requirements for both admiralty and diversity jurisdiction can elect to proceed on either basis, the primary difference being that a jury generally is not available if plaintiff files a libel in admiralty rather than an ordinary civil complaint. See In re: Chimenti, 79 F.3d 534, 537 (6th Cir. 1996). A plaintiff might want to exclude a jury for strategic reasons, and therefore could elect the admiralty route.

However, In re: Lockheed Martin Corp., No. 06-1344, 2007 WL 2793112 (4th Cir. Sept. 27, 2007), illustrates that a defendant can frustrate that election by bringing a declaratory judgment counterclaim and filing a jury demand. In Lockheed Martin, plaintiff successfully moved to strike defen­dant’s jury demand, arguing that the declaratory judgment claim was merely the “flipside” of plaintiff’s affirmative claims, and that defendant should not be permitted an end-run around plaintiff’s admiralty strategy. Defendant filed a mandamus petition.

Noting a split in the circuits, the appellate court held that 28 U.S.C. § 1333 and Fed.R.Civ.P. 9(h) permitted a defendant to bring proper non-admiralty counterclaims and to have them tried to a jury. The court granted the writ of mandamus.

Plaintiff's Own Withdrawal Of Federal Claim Ends Jurisdiction Over State Claim

In addition to claims that fall within specific federal subject-matter jurisdiction, federal courts also are permitted to hear state-law claims pled as part of the same case. See 28 U.S.C. § 1367 (the doctrine of supplemental jurisdiction).

It is well-established that if a defendant successfully moves to dismiss all of the claims for which federal jurisdiction exists, leaving only claims based on state law, the district court has the discretion to dismiss the state-law claims (which the plaintiff then might be able to assert in state court). District courts frequently do just that. See, e.g., Sanchez & Daniels v. Koresko, No. 07-1228, 2007 WL 2757761 (7th Cir. Sept. 24, 2007) (district court properly terminated case after dismissing all claims over which it had original jurisdiction).

The Eleventh Circuit recently considered a case in which the termination of all federal claims occurred by plaintiff’s voluntary amendment of the complaint. In contrast to the discretionary standard applicable after granting of a Rule 12 motion, in Pintando v Miami-Dade Housing Agency, 501 F.3d 1241 (11th Cir. Sept. 25, 2007), the court found that when a party voluntarily withdraws all claims over which the district court had original jurisdiction, the judge is required to dismiss the case. Analogizing to Rockwell Int’l Corp. v. Unites States, 127 S. Ct. 1397 (2007) [covered in a previous post], the court held that the withdrawal of allegations in an amended complaint which had formed the basis of federal jurisdiction defeats jurisdiction altogether, and the case cannot continue in federal court.

Thus, if confronted with a situation like this one, a district court may grant a motion for leave to amend, and then must immediately dismiss the case for lack of federal jurisdiction.

Second Circuit Now Requires Parties Jointly To Affirmatively Request Oral Argument

The Second Circuit Court of Appeals has adopted an interim rule, effective August 27, 2007, that imposes a new, ‘opt-in’ procedure for oral argument. It does not appear that any other circuit has adopted such a requirement.

Under Fed.R.Civ.App. 34, oral argument is required unless the court finds that certain conditions are satisfied such that oral argument can be dispensed with and the case decided solely on the briefs. The Rule also specifies that a court “may require by local rule a statement explaining why oral argument should, or need not, be permitted.”

In a new twist on that rule, the Second Circuit’s Interim Local Rule 34 requires the parties to file a joint statement indicating whether they seek oral argument or agree to submit the case on the briefs. If the parties disagree, that must also be indicated. The joint statement is due within 14 days after the due date for the last brief. Any party failing to file the statement will be deemed not to seek oral argument.

The court allowed a one-month comment period, which expires September 27, 2007, and is running simultaneously with the adoption of the rule itself. There does not seem to have been much publicity about this, and because it is a unique and counter-intuitive change (going from an opt-out system to an opt-in system), the new rule seems like a trap for the unwary.