United States District Court, D. New Jersey
JAY MINERLEY, individually and as class representative, Plaintiff,
AETNA, INC., AETNA HEALTH, INC., AETNA HEALTH INSURANCE CO., AETNA LIFE INSURANCE CO., and THE RAWLINGS COMPANY, LLC, Defendants.
ARMSTRONG MATTHEW D'ANNUNZIO DON P. FOSTER OFFIT KURMAN
P.A. On behalf of Plaintiff
CHARLES KANNEBECKER LAW OFFICES OF CHARLES KANNEBECKER On
behalf of Plaintiff
RICHARD W. COHEN (ADMITTED PRO HAC VICE) GERALD LAWRENCE
(ADMITTED PRO HAC VICE) URIEL RABINOVITZ LOWEY DANNENBERG
COHEN & HART, P.C. On behalf of Defendants
L. HILLMAN, U.S.D.J.
moves for leave to file a late jury demand. Having already
determined that Plaintiff waived a jury trial, the Court will
deny Plaintiff's request to order a jury trial under
Federal Rule of Civil Procedure 39(b). Instead, the Court
will have an advisory jury pursuant to Federal Rule of Civil
Court takes the following facts from its May 5, 2017 Opinion.
Plaintiff filed his original putative class action complaint
in New Jersey state court on January 25, 2013. The state
court complaint undisputedly contained a jury demand. The
state court complaint asserted thirty-three counts, all
asserting state law causes of action.
March 7, 2013, Defendants removed the case to federal court,
asserting federal question jurisdiction on the basis of ERISA
complete preemption, as well as diversity jurisdiction
pursuant to the Class Action Fairness Act, 28 U.S.C. §
1332(d). Plaintiff moved to remand. Prior to the Court's
ruling, Plaintiff filed an amended complaint, mooting the
asserted basis for the motion to remand. Consequently,
Plaintiff withdrew the motion. The first amended complaint
was substantially similar to the original complaint, also
asserting thirty-three state law claims and containing a jury
moved for summary judgment. This Court granted the motion in
part, finding all of Plaintiff's claims were completely
preempted by ERISA. Plaintiff was then granted leave to amend
the complaint to state a claim under ERISA. This prompted the
filing of Plaintiff's second amended complaint, asserting
six counts under ERISA and containing no jury demand.
filed a Motion to Strike Jury Demand. In an April 11, 2017
Order, this Court determined Defendants' Motion to Strike
Jury Demand was moot and thus denied the motion, as
“neither the Second Amended Complaint, nor
Defendants' Answer thereto, contain[ed] a jury
demand.” The Court's May 5, 2017 decision denying
Plaintiff's motion for reconsideration considered
Plaintiff's argument that the Court committed legal error
in that Plaintiff's original complaint, filed in state
court, contained a jury demand. The Court found this of no
consequence and denied the motion.
10, 2017, Plaintiff moved for leave to file a late jury
asks the Court for leave to permit a jury trial pursuant to
Federal Rule of Civil Procedure 39(b). “Rule 39(b)
governs when a proper jury demand under Rule 38 has not been
made.” Microbilt Corp. v. Fidelity Nat'l Info.
Servs., Inc., No. 14-03284, 2014 WL 6804465, at *5
(D.N.J. Dec. 3, 2014). It provides: “Issues on which a
jury trial is not properly demanded are to be tried by the
court. But the court may, on motion, order a jury trial on
any issue for which a jury might have been demanded.”
Under this rule, “a district ...