Opinion
92 Civ. 4418 (JSM).
January 8, 2001.
Elizabeth Blair Starkey, Cappiello Hofmann Katz, P.C. New York, NY, for plaintiff.
John J. Walsh, Freehill, Hogan Mahar New York, NY, for defendants.
MEMORANDUM OPINION AND ORDER
Defendants' in limine application that the Court charge the jury on the issue of Plaintiff's alleged waiver of rights under the Jones Act is denied. This issue was resolved against Defendants in the decision of the Second Circuit which reversed a grant of summary judgment for Defendants in this case. See Reyes v. Delta Dallas Alpha Corp., 199 F.3d 626 (2d. Cir. 1999).
Defendants argue that in reversing the grant of summary judgment the Circuit Court merely held that waiver had not been established as a matter of law and that it is up to the jury to determine whether waiver is established as a matter of fact. The problem with this argument is that none of the facts were in dispute before the Circuit Court.
In Mooney v. City of New York, 219 F.3d 123 (2d. Cir. 2000), the Second Circuit stated:
We will infer a waiver only where "the parties were aware of their rights and made the conscious choice, for whatever reason, to waive them." NLRB v. New York Tel. Co., 930 F.2d 1009, 1011 (2d. Cir. 1991). Moreover, the party asserting an implied waiver as a matter of law carries the burden of proving that these requirements have been met. See id. (Party asserting waiver "bears the weighty burden of establishing that a `clear and unmistakable' waiver has occurred." (quoting Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708, 103 S.Ct. 1467, 75 L.Ed.2d 387 (1983))).Mooney, 219 F.3d at 131 (citation omitted).
Since Defendants bear the burden of proving a waiver, this Court can not tell a jury that it can find a waiver on the same facts which the Circuit Court found do not support a finding of waiver.
For the foregoing reasons the application for a jury charge on the issue of waiver is denied.