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August 10, 1994

W.R. GRACE & CO. - CONN., Defendant, Third-Party Plaintiff, v. ALLSTATE INSURANCE CO., et al., Third-Party Defendants.

The opinion of the court was delivered by: ALFRED M. WOLIN

 Wolin, District Judge.

 This matter is before the Court on the motion of defendant/third-party plaintiff W.R. Grace & Co.--Conn. ("Grace"), pursuant to Federal Rule of Appellate Procedure 10(e) ("Rule 10(e)"), for entry of an order correcting an omission in the record and denying Grace's motion for a jury trial. Plaintiff Hatco Corporation ("Hatco") has opposed the entry of the requested order under Rule 10(e). The Court has reviewed the parties' written submissions and is prepared to rule expeditiously on the motion in view of the briefing schedule for Grace's appeal which is currently pending before the Third Circuit Court of Appeals.


 The general history of this case need not be addressed on the pending motion. This litigation has spawned numerous, and often lengthy, opinions. Presumably, the regular readers of the Hatco v. Grace opinions grow weary -- as does the Court -- from the virtually ceaseless recapitulation of historical background. Nonetheless, the Court must revisit certain facts and events given the nature of Grace's pending request and the consequent relevance of the circumstances surrounding the parties' demands for -- and the Court's decision to forego -- a jury trial on the claims ultimately tried before the Court in July 1993. To this end, the Court gleans the following from the case file and the parties' written submissions on the pending motion.

 In a letter to this Court and Special Master Donald A. Robinson, dated October 27, 1992, Grace referenced Hatco's pleadings and demand for a jury trial on all issues and stated that it was entitled to rely, and would rely, on those jury demands.

 On October 29, 1992, Grace filed its Answer to Hatco's Third Amended Complaint and Demand for Jury Trial. Grace's answer contained counterclaims for indemnification under New Jersey common law and for contribution under CERCLA, the Spill Act and the New Jersey Joint Tortfeasor Contribution Act (the "Tortfeasor Act"). In addition, Grace demanded a jury trial as to all issues presented in its counterclaims.

 At a conference on October 29, 1992, the parties agreed to file briefs simultaneously on the jury trial issues.

 On November 2, 1992, Grace filed its brief in support of a jury trial and asserted that it had a right to rely on Hatco's demand for a jury trial, and based upon that reliance, had a right to a jury trial on its counterclaims. In addition, Grace argued that the right to a jury trial on its counterclaims existed independently of Hatco's initial demand.

 On the same day, Hatco filed its brief, in which it argued that its CERCLA cost recovery and Spill Act contribution claims were triable to the Court and that Grace's counterclaims were not triable to a jury. The parties subsequently filed replies to each other's brief.

 On December 24, 1992, Hatco filed a motion for summary judgment on Grace's First and Third Counterclaims -- the common law indemnification claim and the Spill Act/Tortfeasor Act contribution claim, respectively.

 On January 15, 1993, Hatco moved to voluntarily dismiss Count Three (common law contract claim) of its Third Amended Complaint.

 On January 19, 1993, the parties convened in this Court's chambers for a status/settlement conference (the "January 19 conference"). During this meeting, the outstanding jury trial issue was raised. Both parties seem to agree now that the Court indicated that the jury demands of both Hatco and Grace would be denied.

 On January 25, 1993, the Court signed the order dismissing Hatco's common law contract claim. On February 17, 1993, the Court issued another order dismissing the same claim, with prejudice.

 In a letter to the Court dated March 10, 1993, Hatco brought to the Court's attention a decision from the District of Rhode Island which allegedly supported Hatco's position that there is no right to a jury trial on a contribution claim under CERCLA.

 On April 15, 1993, on the consent of counsel for both parties, the Court issued Case Management Order No. 3 ("CMO No. 3"), wherein the trial was set to commence on July 19, 1993, except on the issue of treble damages under the Spill Act. In addition, CMO No. 3 established guidelines and procedures for trial, including the specification of dates in which the parties were to file proposed findings of fact and conclusions of law after the close of the trial.

 On May 13, 1993, the Court issued an order designating the equitable factors upon which the Court planned to rely in assessing Grace's counterclaims for contribution under CERCLA and the Spill Act.

 On May 24, 1993, the Court filed Case Management Order No. 4 ("CMO No. 4"), which changed the dates for the start of trial and for the submission of proposed ...

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