Free Motion to Strike - District Court of Delaware - Delaware

Case 1:04-cv-01470-JJF

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Filed 03/28/2005

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UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF DELAWARE SHARON MARMON-KACZOROWSKI * Plaintiff v. CONTINENTAL CASUALTY COMPANY, et al. Defendants * * * * * * * * * * * * * * * * * * Civil Action No.: 04-1470

DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S JURY TRIAL DEMAND Defendants, Continental Casualty Company and CNA Life Assurance Company (hereinafter "Defendants"), by its undersigned counsel, hereby file this Motion to Strike Plaintiff's Jury Trial Demand, and state as grounds: 1. This case concerns the interpretation and application of provisions of an employee

welfare benefit plan (the "Plan") and, therefore, the Employment Retirement Income Security Act of 1974, as Amended ("ERISA"), 29 U.S.C. §§ 1001, et seq., governs this lawsuit. 2. The Continental Casualty Company Group Policy at issue in this case, No. SR-

83090156 (the "Policy"), was issued to Plaintiff's employer, Computer Sciences Corporation, to provide long-term disability benefits. 3. On or about October 25, 2004, Plaintiff filed her Complaint in the Superior Court

of Delaware for New Castle County. Plaintiff's Complaint demanded a trial by jury of 12. 4. On or about November 24, 2004, Defendants timely removed this case to the

United States District Court for the District of Delaware. 5. There is no constitutional or statutory authority providing a right to a jury trial in

actions such as this in which an employee claims benefits pursuant to an employee welfare

Case 1:04-cv-01470-JJF

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benefit plan governed by the Employee Retirement and Income Security Act ("ERISA"), 29 U.S.C. §1132(a)(1)(B). 6. Federal courts, including the Third Circuit and the District of Delaware, whose

decisions must govern the resolution of this case, have ruled that there is no right to a jury trial in claims under employee welfare benefit plans governed by ERISA, such as this one. WHEREFORE, for these reasons, and the reasons more fully set forth in the accompanying Memorandum of Law in Support of Defendants' Motion to Strike Plaintiff's Jury Trial Demand, Defendants request this Court grant this Motion to Strike the Plaintiff's Jury Trial Demand. Respectfully submitted, ___/s/ Susan A. List_____________ David G. Culley, Fed. Bar No. 2141 Susan A. List, Fed. Bar No. 3752 TYBOUT, REDFEARN & PELL 300 Delaware Avenue, Suite 1100 P.O. Box 2092 Wilmington, Delaware 19899 (302) 658-6901 J. Snowden Stanley, Jr. (Of Counsel) SEMMES, BOWEN & SEMMES 250 West Pratt Street Baltimore, Maryland 21201 (410) 539-5040 Attorneys for Defendants

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Case 1:04-cv-01470-JJF

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this __28_ day of _March_______, 2005, a copy of the foregoing Defendants' Motion to Strike Plaintiff's Jury Trial Demand and proposed Order were served, via e-filing, on: Robert C. McDonald, Esquire Silverman, McDonald & Friedman 1010 N. Bancroft Parkway Wilmington, Delaware 19805 Attorneys for Plaintiff /s/ Susan A. List Susan A. List

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