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Minerley v. Aetna, Inc.

United States District Court, D. New Jersey

December 11, 2017

JAY MINERLEY, individually and as class representative, Plaintiff,
v.
AETNA, INC., AETNA HEALTH, INC., AETNA HEALTH INSURANCE CO., AETNA LIFE INSURANCE CO., and THE RAWLINGS COMPANY, LLC, Defendants.

          JOSEPH 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

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         Plaintiff 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 Procedure 39(c).

         I.

         The 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.

         On 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 demand.

         Defendants 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.

         Defendants 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.[1]

         On May 10, 2017, Plaintiff moved for leave to file a late jury demand.

         II.

         Plaintiff 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 ...


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