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applying the same factors in addressing a stay pending appeal of a magistrate judge's order under the clearly erroneous standard of Fed. R. Civ. P. 72
Summary of this case from Garity v. DonahoeOpinion
3:08-CV-0578-LRH-WGC 3:09-CV-0565-LRH-WGC
11-17-2011
TRUSTEES of the NORTHERN NEVADA OPERATING ENGINEERS HEALTH & WELFARE TRUST FUND, et al., Plaintiffs, v. MACH 4 CONSTRUCTION, et al., Defendants.
ORDER
Before the court is plaintiffs' motion to strike jury demand. Doc. #112.
Refers to the court's docket number.
I. Facts and Background
On October 30, 2008, plaintiffs filed the present action against defendant Mach 4 Construction ("Mach 4") for breach of contract arising from alleged unpaid union and trustee contributions. Doc. #1. Thereafter, plaintiffs filed the present motion to strike Mach 4's jury demand. Doc. #112.
For a complete history of this action see this court's order denying plaintiffs' motion for summary judgment. Doc. #59.
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II. Discussion
In their motion, plaintiffs argue that a jury trial on their claims for contribution is unnecessary because their claims sound in equity. See Doc. #112. Although plaintiffs are correct that Mach 4 has no specific right to a jury trial on plaintiffs' claims for contribution, the court may utilize a jury to provide advisory findings of fact. See Everest Capital Ltd. v. Everest Funds Mgmt. LLC, 393 F.3d 755, 762 (8th Cir. 2005). Here, because a jury will already be present in this consolidated trial to address various claims arising in member case no. 3:09-cv-0565, the court finds that utilizing that jury to provide advisory findings of fact on plaintiffs' claims would be useful to assist the court in determining any disputed issues of material fact. Therefore, the court shall deny plaintiffs' motion to strike Mach 4's jury demand.
IT IS THEREFORE ORDERED that plaintiffs' motion to strike jury demand (Doc. #112) is DENIED.
IT IS SO ORDERED.
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE