Opinion
Civil Action No. 03-2195 Section "N" (3).
May 19, 2005
ORDER AND REASONS
Before the Court is a Motion to Strike Demand for Jury Trial, filed on March 23, 2005, by Defendant Gulf South Pipeline Company, L.P. (Rec. Doc. No. 144). For the reasons stated herein, Defendant's motion is GRANTED.
I. BACKGROUND
Plaintiffs in this case filed a class action lawsuit in the Twenty-Fifth Judicial District Court for the Parish of Plaquemines, State of Louisiana, on May 21, 2003, against Defendants Gulf South Pipeline Company, L.P. ("Gulf South") and El Paso Field Services Company ("El Paso"). Plaintiffs' cause of action against the Defendants is ex contractu. Plaintiffs claim damages as a result of Gulf South's alleged breach of servitude and right-of-way agreements by failing to maintain pipeline canals and to restore the property that has been damaged as a result of the Defendants' continuing failure to maintain the pipeline canals in their original state. In their state court petition, Plaintiffs did not request a trial by jury. On August 1, 2003, the class action lawsuit was timely removed to this Court based on complete diversity and the requisite jurisdictional amount, pursuant to 28 U.S.C. § 1332. See generally Notice of Removal (Rec. Doc. No. 1). Thereafter, Gulf South and El Paso each filed an answer to the complaint; neither Defendant requested a trial by jury. (Rec. Doc. Nos. 3 and 4).
El Paso has since been dismissed without prejudice from this action. (Rec. Doc. No. 66).
On September 16, 2003, Plaintiffs sought to amend their original petition to join various non-diverse subcontractors and/or other third parties against whom the Defendants alleged "other fault" as an affirmative defense. (Rec. Doc. No. 9). Plaintiffs' motion was denied without prejudice. (Rec. Doc. No. 19). In the amended complaint sought to be filed, Plaintiffs did not demand a jury trial.
On November 21, 2003, Plaintiffs filed a Motion to Remand on the grounds that complete diversity did not exist. (Rec. Doc. No. 21). For the next four months, the parties conducted jurisdictional discovery, and the matter came for hearing on March 17, 2004. For reasons stated in open court, the Court denied Plaintiffs' Motion to Remand. (Rec. Doc. No. 53).
On June 8, 2004, the Court held a Preliminary Conference during which this case was set for bench trial on April 4, 2005. Later that day, the Court issued a Scheduling Order which clearly states that the trial was to be "before the District Judge without a jury." See Scheduling Order, p. 3 (emphasis in original) (Rec. Doc. No. 65).
On July 2, 2004, following a seven-month period of discovery relative to the non-diverse contractors, Plaintiffs again sought leave to file their first amended complaint for the purposes of adding as defendants non-diverse contractors and third parties. (Rec. Doc. No. 67). The amended complaint for which Plaintiffs sought leave to file did not include a jury demand. On July 28, 2004, Magistrate Judge Knowles denied Plaintiffs' motion for reasons orally given on that date. (Rec. Doc. No. 73).
On November 10, 2004, Plaintiffs filed a Motion for Trial by Jury, in which Plaintiffs requested that the Court exercise its discretion pursuant to Fed.R.Civ.P. 39(b) and relieve Plaintiffs from their waiver of a jury trial in this matter. (Rec. Doc. No. 89). On December 29, 2004, after considering the five factors identified by the Fifth Circuit in Daniel International Corporation v. Fishbach Moore, Inc., 916 F.2d 1061 (5th Cir 1990), the Court concluded that Plaintiffs had not established their entitlement to a trial by jury and denied the motion. (Rec. Doc. No. 105).
Federal Rule of Civil Procedure 39(b) provides that "notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by a jury of any or all issues." Plaintiffs acknowledge in their opposition to Defendant's motion to strike that they are not asking the Court to exercise its discretion under Rule 39(b); rather, Plaintiffs now demand a trial by jury as of right, pursuant to Rule 38(b).
In the meantime, on November 23, 2004, Plaintiffs filed a Motion for Leave of Court to File First Supplemental and Amending Petition. (Rec. Doc. No. 91). A hearing, with oral argument, was held before Magistrate Judge Knowles on December 15, 2004, and Plaintiffs' motion was granted on December 21, 2004. (Rec. Doc. No. 102). In granting leave and allowing the amendment, the Magistrate Judge found that the plaintiff property owners had "acted with due haste and that the clarification should not jeopardize the upcoming trial in April of 2005." Id. Eight days later, on December 29, 2004, Plaintiffs filed a Demand for Jury Trial. Defendant's Motion to Strike Jury Demand followed.
II. LAW AND ANALYSIS
Rule 38(b) of the Federal Rules of Civil Procedure entitles a party to a jury trial on any issue triable by a jury if a demand is served "not later than 10 days after the service of the last pleading directed to such issue. . . ." Id. Under Rule 38(d), a party's failure to timely request a trial by jury constitutes a waiver of that party to a trial by jury. The issue here is whether the First Amended Complaint (which, according to Plaintiffs in their Motion for Leave, "clarified" the property descriptions at issue) can be considered the "last pleading" within the context of Rule 38(b), such that Plaintiffs are entitled to a trial by jury as of right.
The parties agree that the rule in the Fifth Circuit regarding the timeliness of jury demands with respect to amendments is that stated in Guajardo v. Estelle, 580 F.2d 748 (5th Cir. 1978): "A complaint `raises an issue' only once within Rule 38(b)'s meaning when it introduces it for the first time. Amendments not introducing new issues will not give rise to a demand for a jury trial." Id. at 752 (citations omitted). "The term `new issues' has been interpreted to mean new issues of fact and not new theories of recovery." Id. at 753 (citation omitted). New issues are not raised unless they are "in any material way different from those presented by the original [complaint]." Connecticut Gen. Life Ins. Co. v. Breslin, 332 F.2d 928, 931 (5th Cir. 1964).
The First Circuit provided the following definition of "new issues" in In re N-500L Cases, 691 F.2d 14 (1st Cir. 1982):
One issue is the same as another when it is based on the same conduct or concerns the same general area of dispute. If the factual allegations underlying the two claims are the same or if the issues turn on the same matrix of facts the issues are the same. It is both the similarity of facts and the similarity of the matrix — the legal framework in which the facts are analyzed — that makes issues the same. On the other hand, slight modifications in facts or in legal theories presented will not usually render issues different.Id. at 23 (internal citations and quotations omitted).
When the Original and First Amended Complaints are analyzed under these standards, Plaintiff's request for a jury trial is untimely.
The Original Complaint, filed by Johnny Gallardo; Juliette Gallardo; Henry Gallardo; Irvan Perez; and Marian Estaves, individually and on behalf of Christina Estaves, Amanda Estaves, David Estaves, Ricky Estaves, and Annabelle Nunez, identified the following tracts of coastal wetlands, jointly owned by the Plaintiffs, as having been damaged by the Defendants' activities on the land:
Lots 125 and 146 and South ½ of Lot 147, Section 21 and 22, Township 15 South, Range 14 East, Phillips and Hart Tract, containing 200 acres, more or less; [and]
Lot 6, Section 21, Township 15 South, Range 14 East, being the same property acquired from Richard Gallardo, Sr. from the Delacroix Corporation, Phillipis tract, containing 79.6 acres, more or less.
Class Action Petition for Damages, ¶¶ 2 and 3 (emphasis added).
In the First Supplemental and Amending Complaint, the following tract was identified as being jointly owned by Plaintiffs Henry Gallardo; Irvan Perez; and Marian Estaves, individually and on behalf of Christina Estaves, Amanda Estaves, David Estaves, Ricky Estaves, and Annabelle Nunez (collectively "the Estaves Plaintiffs"):
Lot 4 and the South ½ of Lot 3, Section 16, Township 15 South, Range 14 East, Phillips Tracts, containing 119.2 acres, being the same property acquired by Judgment of Possession in the Succession of Antonia Melerine on July 13, 1977.
First Supplemental and Amending Petition for Damages, ¶ 3a (emphasis added).
In moving to strike the jury demand, Defendant contends that the First Supplemental and Amended Complaint is not the "last pleading directed to an issue" triable by a jury, as that complaint was filed only to identify one piece of property which Plaintiffs had misidentified when they filed their original complaint in state court. Defendant directs the Court's attention to Plaintiff's Motion for Leave to File First Supplemental and Amending Petition, wherein Plaintiffs stated that leave was sought "to clarify the property descriptions and ownership rights involved." (Rec. Doc. No. 91, p. 1) (emphasis added). Defendant next directs the Court to certain statements made by Plaintiffs' counsel during the December 15, 2004 hearing before Magistrate Judge Knowles on the Motion for Leave:
MR. STAGG: "[Plaintiffs] ask for leave to amend the petition to add one simple paragraph. And this is to clarify the allegations concerning the property at issue. . . . These properties, we are not adding any new properties, not adding a new complaint, not changing the plaintiffs. We have always alleged in our petition and discovery that Gulf South Pipeline is on our client's properties and that the case concerns the Gulf South Pipeline on their properties."
Tr. of Hr'g on Pls.' Mot., p. 2 (Def's Ex. "C"; Pls.' Ex. "D").
"[This property has] [a]lways been subject to this lawsuit. . . . [D]uring the course of discovery, [Gulf South] asked for us to clarify which properties are [Plaintiffs] talking about. . . . We did this."
* * * * *
"In an effort to clarify the pleadings, we thought it would be appropriate at this time to also amend the complaint, to clarify and to make sure that there is no mistake as to what property is at issue. From our perspective, this property has always been at issue."Id. at p. 3.
"[The newly added property] is in close proximity [to the ones already identified]. . . . But we always alleged a claim for property damages related to Estaves and Gallardo."Id. at pp. 5-6.
". . . [Gulf South] know[s] where their pipeline is. . . . They can produce their right of way related to these properties. And it has always been an issue in this case. As [defense counsel] said, [Plaintiffs] are not adding new plaintiffs, not adding any new parties, it's the same case that it's been since the beginning. And all this came up during the course of discovery." Id. at p. 6.
"It's the same pipeline, same defendant. [All the properties] are in the same locale. And they have always been in the case, it just hasn't been, the property description was not accurate and was not presented in the initial discovery, and initial pleading."Id. at pp. 8-9. Based on the foregoing, Defendant submits that Plaintiffs' First Supplemental and Amending Complaint raises no new factual issues nor presents any other valid ground for Plaintiffs' claim to a jury trial.
In response, Plaintiffs argue that the First Supplemental and Amended Complaint does raise new issues of fact that must give rise to the right to a jury trial. According to Plaintiffs, Defendants acknowledged this at the hearing on the Motion for Leave:
MR. YOUNG: ". . . It is a new piece of property, never been identified."
Tr. of Hr'g on Pls.' Mot., p. 4.
"While [the Estaves's and Perez's] were named as plaintiffs, this new piece of property has never been identified as being owned by them until recently. . . . [T]his is the first time we are hearing this allegation."Id. at p. 5.
"I think we are prejudiced. . . . This property, there is no documents other than possession showing that they own it. . . . Now, inside of four months, they are going to be allowed to amend to name some piece of property where they haven't proven it, we are going to conduct discovery, and I am afraid we are going to jeopardize the trial date. . . ."Id. at p. 7. Plaintiffs admit that new plaintiffs were not added, the argue that the amendment was necessary because, without same, the Estaves Plaintiffs whose property was not previously identified would have no factual basis for any claim against defendant.
In now arguing that the newly-added tract presents different factual issues, Plaintiffs direct the Court to defense counsel's statements at the December 15, 2004 hearing, whereby counsel stated that it was unknown whether Gulf South's pipeline ran through the property sought to be added, and that, based on discovery, summary judgment in Defendant's favor may be warranted as to that property. Citing Swofford v. B W, Inc., 34 F.R.D. 15 (S.D.Tex. 1963), Plaintiffs also compare the addition of the new tract of property to the addition of a new plaintiff. For instance, Plaintiffs point to certain deposition testimony of a Gulf South employee, whereby the employee stated that the activities of Gulf South differ for each property. According to Plaintiffs, the addition of the new section will require additional discovery, including additional expert testimony. Further, because the damages sustained by each property differ, expert opinions and restoration plans must be supplemented and revised accordingly.
In Swofford, new plaintiffs were added in a patent infringement case. While the facts alleged and the theories of recovery remained the same as those alleged by the original plaintiff, the new plaintiffs' jury demand was found to be timely made and proper under Rule 38(b). In so finding, the Court reasoned that it would not hold the new plaintiffs bound by the original plaintiff's waiver of a jury trial.
Having reviewed the record as a whole, the Court concludes that Plaintiffs' First Supplemental and Amending Complaint does not introduce new issues into the lawsuit which would now merit a jury trial. Rather, the record of the hearing conducted by Magistrate Judge Knowles provides the Court with 20/20 hindsight on the nature and materiality of the amendment. Specifically, the stated purpose of the amendment which preceded Plaintiffs' jury demand was "to clarify the allegations concerning the property at issue." Tr. of Hr'g on Pls.' Mot. to Amend, p. 2. Further, as counsel explained in support of Plaintiffs' Motion for Leave, "[Plaintiffs] are not adding any new properties, not adding a new complaint, not changing the plaintiffs." Id. It is evident from the Order granting Plaintiffs leave to amend their complaint that Magistrate Judge Knowles accepted the latter arguments made by Plaintiffs' counsel, and relied on these assertions, presumably made in good faith. See generally Minute Entry dated December 20, 2004 (Rec. Doc. No. 102). Nevertheless, in opposing Defendant's Motion to Strike, Plaintiffs now argue that the First Supplemental and Amending Complaint did in fact add a new property. Given the contradictory nature of Plaintiffs' arguments relative to the amendment and the history of Plaintiffs' repeated failures to timely request a jury, the Court finds that Plaintiffs should not be allowed to capitalize on their own pleading error — albeit, inadvertent — and overcome this Court's previous ruling denying Plaintiffs a jury trial.
In the instant matter, Plaintiffs are attempting to use their amended pleading as a "trojan horse" to trigger a new jury demand. However, as established above, Plaintiffs' amendment was not accepted by this Court as one adding new issues and thereby reviving the right to a jury trial. Instead, Plaintiffs' amended pleading was accepted to clarify the record and to associate the Estaves Plaintiffs with the one property in which they have an ownership interest and through which Defendant's pipeline allegedly runs. It is evident from the record that Plaintiffs' knowledge of such property rights could not have arisen at the time of or immediately preceding the proposed amendment. Indeed, on September 14, 2004, Plaintiffs provided certain property records in response to Defendant's discovery requests. See Def.'s Supplemental Mem., Ex. "C" in globo. Those records establish that the Estaves Plaintiffs did have rights in, among other properties, "Lot 4 and the South ½ of Lot 3, Section 16, Township 15 South, Range 14 East," and that the Estaves Plaintiffs did not have any ownership rights in any of the properties identified in the Original Petition. See id, Bates Nos. 10152, 10156, 10168, 10195 and 10199. Additionally, in a November 15, 2004 court-ordered response to Defendant's discovery requests, Plaintiffs explained that the requested information relative to the property which forms the basis of the lawsuit "is clearly available in the public records" and that Plaintiffs had previously provided Defendant all documents in their possession pertaining to the properties, including that having the legal description of "Lot 4 and the South ½ of Lot 3, Section 16, Township 15 South, Range 14 East." See Def.'s Supplemental Mem., Ex. "D", pp. 2-4.
The Court also finds Plaintiff's reliance on Swofford v. B W, Inc., supra, to be misplaced. In the instant matter, neither the Estaves Plaintiffs nor the property which they allegedly own are remotely like the newly-added plaintiffs in Swofford; they are not new parties to the litigation, and have not presented any new claims for damages. Rather, the Estaves Plaintiffs continuously have sought to recover damages against Defendant as a result of Defendant's alleged failure to maintain its pipelines on Plaintiffs' property. To relieve these Plaintiffs of their earlier waiver(s) under these circumstances would be both unjust and an improper application of Fed.R.Civ.P. 38. Accordingly, the Court finds that Plaintiffs' First Supplemental and Amending Complaint does not introduce a new issue triable to a jury, as contemplated by Rule 38(b). Plaintiffs' December 29, 2004 demand for a jury trial is therefore untimely.
III. CONCLUSION
Accordingly, for the foregoing reasons, IT IS ORDERED that the Motion to Strike Demand for Jury Trial, filed by Defendant Gulf South Pipeline Company, L.P., is GRANTED.