Free Motion to Strike - District Court of Delaware - Delaware


File Size: 121.6 kB
Pages: 4
Date: December 31, 1969
File Format: PDF
State: Delaware
Category: District Court of Delaware
Author: unknown
Word Count: 887 Words, 5,690 Characters
Page Size: Letter (8 1/2" x 11")
URL

https://www.findforms.com/pdf_files/ded/35085/12-3.pdf

Download Motion to Strike - District Court of Delaware ( 121.6 kB)


Preview Motion to Strike - District Court of Delaware
Case 1 :05—cv—00454-GI\/IS Document 12-3 Filed 03/14/2006 Page 1 of 4
“N‘Tr%‘§F{{r‘%;‘iE3r?}>S€§€»%“RT
MICHAEL ROBERTS :
v. CIVIL ACTION NO. 05-454 -GMS
ALTAIR LINES S.A.
(referred to in Complaint :
as M/V SHINANO REEFER in persomzm) :
ACTIVE CRANE RENTALS, INC.
MOTION OF DEFENDANT ALTAIR LINES, S.A.
TO STRIKE PLAINTIFF’S JURY DEMAND
Defendant, Altair Lines S .A. ("Altair"), by its undersigned attorneys, and in accordance with
this Honorable Court’s Scheduling Order, moves this Honorable Court for an Order in substantially
the form attached hereto granting the within Motion to Strike Demand for Jury Trial, and in support
thereof, avers as follows:
1 . The captioned action involves a claim by longshoreman Michael Roberts under, inter
alia, the Longshore and Harbor Workers Compensation Act (LHWCA), 33 U.S.C. § 905(b), for
alleged injuries he claims he sustained on June 30, 2003 while discharging cargo from the vessel
SHINANO REEFER at the Wilmington Marine Tenninal, Wilmington, Delaware as an employee
of stevedore Murphy Marine Services, Inc. (Plaintiff’ s Complaint attached as Exhibit "A") (D.I. 1).
A 2. In the Complaint the Plaintiff provided the following basis for federal jurisdiction;
"[t]his is a case of admiralty and maritime jurisdiction, as hereinafter more fully appears, and is an
admiralty or maritime claim within the meaning of Rule 9(h) of the Federal Rules of Civil
Procedure." (Complaint, ill, Exhibit "A").
3. The Plaintiff further alleged in the Complaint that at the time of the alleged accident
he was working as a longshoreman employed by stevedoring company Murphy Marine Services, Inc.
and that this lawsuit "is a third party admiralty action arising out of the Longshore[] and Harbor

Case 1:O5—cv—OO454-GI\/IS Document 12-3 Filed 03/14/2006 Page 2 of 4
Workers’ [Compensation] Act, providing a cause of action for a longshoreman injured on board a
vessel."l Plaintiff has also claimed that the alleged accident occurred aboard the vessel M/V
SHINANO REEFER while said vessel was berthed at the Wilmington Marine Terminal.
(Complaint, {[2 and 1l5, Exhibit "A”).
4. Notwithstanding Plaintiffs jurisdictional designation of "admiralty and maritime
j urisdiction," the Plaintiff demanded a jury trial in the pleadings caption of the Complaint.
(Complaint, 111, Exhibit "A").
5. Defendant Altair Lines S .A. ("A1tair Lines") filed its Answer to P1aintiff’ s Complaint
on November 21, 2005 (Defendant’s Answer to Complaint attached as Exhibit "B") (D.I. 2).
6. On February 8, 2006, Defendant Altair Lines tiled a Third Party Complaint against
Active Crane Rentals, Inc. pursuant to Federal Rule of Civil Procedure Rule 14(c), which isa
procedural rule limited to admiralty cases wherein the Rule 9(h) designation has been made. (D.I.
8).
7. Under the applicable maritime law, a case such as this wherein jurisdiction is based
on admiralty and maritime jurisdiction, there is no right to a jury trial as a matter of law.
1 Notwithstanding P1aintiff’ s admission that he was working as a longshoreman employed
by stevedoring contractor Murphy Marine Services, Inc. at the time of his alleged accident, Plaintiff
improperly makes reference to the Jones Act in ll 11 of the Complaint and sets forth an
unseaworthiness count in {lil 13-15 ofthe Complaint. These references / allegations are inapplicable
as a matter of law since plaintiffs action is based on the Longshore and Harbor Worker’s
Compensation Act ("LHWCA"), 33 U.S.C. § 905(b), and the Congressional amendment to the
LHWCA in 1972 abolished the longshoreman’s cause of action for unseaworthiness and at the same
time eliminated a vessel owner’s right to file an indemnity claim against the stevedore employer. See
Scinclia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 168-72 (1981); Howlett v. Birkdale
Shipping Co., S.A., 512 U.S. 92, 97 (1994). Under § 905(b), a longshoreman is limited to an
exclusive statutory negligence cause of action. See Scinalia and Howlett, supra.
PBH: 181938.1 - 2 -

Case 1:O5—cv—OO454-GI\/IS Document 12-3 Filed O3/14/2006 Page 3 of 4
WHEREFORE, defendant Altair Lines S.A. respectfully requests this Honorable Court to
enter an Order in substantially the form attached hereto granting Altair Lines S .A. ’ s Motion to Strike
Plaintiff’ s Jury Trial Demand.
Respectfully submitted,
PALMER BIEZUP & HENDERSON LLP
By: /s/ Michael B. McCauley
Michael B. McCauley, Esq. (ID # 2416)
Attorneys for Defendant
Altair Lines S.A.
1223 Foulk Road
Wilmington, DE 19803 .
(302) 594-0895
OF COUNSEL:
Richard Q. Whelan
PALMER BIEZUP & HENDERSON LLP
620 Chestnut Street
956 Public Ledger Building
Philadelphia, PA 19106
(215) 625-9900
PBH: 181938.1 - 3 -

1
Case 1:O5—cv—OO454-GI\/IS Document 12-3 Filed O3/14/2006 Page 4 of 4
CERTIFICATE OF SERVICE
I hereby certify that on March 14, 2006, I electronically filed the foregoing Motion to Strike
Jury Demand and accompanying Brief in Support using CM/ECP which will send notification of
such filing to: L.
Peter E. Hess, Esquire
Law Offices of Peter E. Hess
P.O. Box 7753
Wilmington, DE 19803-7753
I further certify that a courtesy copy of the foregoing has been served on the above-listed
counsel as well as the below listed Third Party Defendant who are presently unrepresented by first-
g class mail, postage prepaid. 1
Active Crane Rental, Inc.
103 Water Street - Newport
Wilmington, Delaware 19804
PALMER BIEZUP & HENDERSON LLP
By: /s/ Michael B. McCauley
Michael B. McCauley
Dated: March 14, 2006