Free Motion to Strike - District Court of Delaware - Delaware

Case 1 :07-cv-00685-SLR Document 33 Filed 04/ 1 5/2008 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
) r
BARBARA R. JOHNSON, )
)
Plaintiff ) C. A. No. 07-CV-00685 (SLR)
)
v. )
)
NANTICOKE MEMORLAL HOSPITAL, ) I
INC., AND NANTICOKE HEALTH )
SERVICES, INC. )
)
Defendants. )
)
MOTION OF DEFENDANTS
TO STRIKE PLAINTIFF’S JURY DEMAND
Pursuant to Federal Rule of Civil Procedure 39(a)(2), Defendants, Nanticoke
Memorial Hospital, Inc. and Nanticoke Health Services, Inc. (collectively "Nanticoke"), by and
through its undersigned counsel, hereby move to strike Plaintiff’s demand for a jury trial and in
support thereof aver as follows:
1. Plaintiff has filed a complaint against Nanticoke alleging only two counts,
both of which are asserted pursuant to the Employee Retirement Income Security Act of 1974, as
amended, 29 U.S.C. § 1001 et seq. ("ERlSA").
. 2. Pursuant to 29 U.S.C. § 1l32(a)(l)(B), Plaintiff asserts a claim for pension
plan benefits she alleges are due to her. Plaintiff also asserts a claim for attorney’s fees and costs
pursuant to section ll32(g)(1).
3. Federal Rule of Civil Procedure 39(a)(2) provides that the Court, "on
motion or on its own," may strike a demand for a jury trial where "there is no federal right to a
jury trial."
L # 720235 V.1

Case 1:07-cv-00685-SLR Document 33 Filed 04/15/2008 Page 2 of 2
4. A right to a jury trial does not exist under section ll32(a)(l)(B) of ERISA.
5. In a direct claim for pension benefits, the federal courts have consistently
concluded that there is no right to a jury trial. Turner v. CF & I Steel Corp., 770 F .2d 43, 47 (3d
Cir. 1985) (holding that employees did not have federal right to jury trial with respect to claim
seeking recovery of pension benefits); Haeffele v. Hercules Inc., 703 F. Supp. 326, 331 (D. Del.
1989) (granting plaintiff` s motion to strike jury trial demand with respect to claim seeking
recovery of pension benefits under section 1 132(a)(1)(B)).
6. Thus, Plaintiff does not assert a claim or issue in her Complaint under
which she has a federal right to a jury trial.
WHEREFORE, Defendants respectfully request that the Court grant its Motion to
Strike Plaintiff` s Jury Demand.
Respectfully submitted,
. ` ‘
Michael P. Migliore, E ire (Del. Bar #4331)
STRADLEY RONON STEVENS & YOUNG, LLP
300 Delaware Avenue, Suite 800
Wilmington, DE 19801
(302) 576-5850
[email protected]
and
Patrick R. Kingsley, Esquire (Admitted Pro Hac Vice)
STRADLEY RONON STEVENS & YOUNG, LLP
2600 One Commerce Square
Philadelphia, PA 19103
(215) 564-8000
Attomeys for Defendants,
Nanticoke Memorial Hospital, Inc. and
Nanticoke Health Services, Inc.
Dated: April 15, 2008
L # 720235 V.1

Case 1 :07-cv—00685-SLB Document 33-2 Filed 04/15/2008 Page 1 of 1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
)
BARBARA R. JOHNSON, )
)
Plaintiff, ) C. A. N0. 07-CV-00685 (SLR)
I
v. )
)
NANTICOKE MEMORIAL HOSPITAL, )
INC., AND NANTICOKE HEALTH )
SERVICES, INC., )
>
Defendants. )
)
NOTICE OF SERVICE
To: Eric M. Andersen
Cooch and Taylor
824 N. Market Street, Suite 1000
. Wilmington, DE 19801
(Counsel for Plaintiff)
On April 15, 2008, a copy of the Motion of Defendants to Strike P/aintiff’s
Jury Demand was served via hand-delivery at the address noted above, and via
electronic service by way of the Court’s CM-ECF filing system upon the above-named
counseL
Dated: April 15, 2008 ` j
Michael P. Migliore ( Bar #4331)
STRADLEY RoNoN Stevens & Youmc, LLP
300 Delaware Avenue, Suite 800
Wilmington, DE 19801
Telephone: (302) 576-5850
Facsimile: (302) 576-5858
Counsel for Defendants
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Case 1 :07-cv—00685-SLR Document 33-3 Filed 04/15/2008 Page 1 of 1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
)
BARBARA R. JOHNSON, )
)
Plaintiff ) C. A. No. 07-CV—00685 (SLR)
)
v. )
)
NANTICOKE MEMORIAL HOSPITAL, )
INC., AND NANTICOKE HEALTH )
SERVICES, INC. )
)
Defendants. )
)
ORDER
AND NOW, this day of , 2008, upon consideration of
Defendants’ Motion to Strike Plaintiffs Jury Demand, and any response thereto, it is hereby
ORDERED, ADJUDGED, and DECREED that the Motion is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs jury demand is stricken.
BY THE COURT:
U.S. District Court Judge Sue L. Robinson _
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