motion, both orally and in writing. Furthermore, because as previously mentioned the parties have been sparring over this jury trial issue off and on throughout this litigation, plaintiff has created an ample record as to her legal position on this issue, and this court is fully apprised of her position from her prior and recent submissions, as well from oral argument. Lastly, reconsideration of the jury trial issue will save the court and the parties the time and expense of relitigating this action before the court if it is later determined that plaintiff was not entitled to a jury. See Conrad, supra, 891 F. Supp. at 968 ("Reconsideration of the issues raised by Skinner's Bar will save the Court and the parties the time and expense of litigating purely legal claims that, even in the event of trial, could not be submitted to a jury.").
Having determined that this court may reconsider the non-final order of the transferor court that plaintiff is entitled to a jury trial, the court is now free to consider whether, as Cornell suggests, that determination constitutes a clear error of law and/or creates manifest injustice which would justify departure from the law of the case doctrine.
As mentioned earlier, in his most recent decision addressing the jury trial issue, Judge McAvoy held that plaintiff's remaining two causes of action are both properly submitted to a jury. Judge McAvoy offered several reasons for that conclusion. First, he pointed out that in a previous ruling he had held "under DOHSA, where, as here, the tortfeasor is neither the owner nor operator of the vessel implicated in the tort, the survival statute of the tortfeasor's state controls." MDO at 2 (citations omitted). From there, Judge McAvoy extrapolated that "DOHSA does not preclude plaintiff from asserting her state survival claim. . . ." Id. Judge McAvoy also explained that because, in his view, plaintiff presented a DOHSA claim "joined with a viable state statutory survival claim," plaintiff was entitled to rely upon a line of cases which support the proposition that "when claims carrying the right to a jury trial are joined with admiralty claims those claims may be tried to a jury." Id. at 2-3 (citations omitted) (emphasis added). Third, Judge McAvoy distinguished three cases from this Circuit, upon which Cornell relied and continues to rely: Preston v. Frantz, 11 F.3d 357 (2nd Cir. 1993), cert. dismissed, U.S. , 115 S. Ct. 31, 129 L. Ed. 2d 928 (1994); Wahlstrom v. Kawasaki, 4 F.3d 1084 (2nd Cir. 1993), cert. denied, U.S. , 114 S. Ct. 1060, 127 L. Ed. 2d 380 (1994); and Deniston v. Boeing, 87- CV-1205, 1991 U.S. Dist. LEXIS 3440 (N.D.N.Y. March 22, 1991). According to Judge McAvoy, those three cases are distinguishable because those plaintiffs "joined their maritime wrongful death claims with judge-made general federal maritime survival actions." Id. at 3 (citations omitted) (emphasis added). Finally, Judge McAvoy cited reasons of judicial economy, and the fact that both causes of action arise out of the same set of operative facts, as justification for proceeding with this case as a jury trial. See id. at 4.
After carefully considering that decision by Judge McAvoy, as well as the parties' respective arguments, the court is forced to conclude that this is one of those rare instances when it cannot, and indeed should not, adhere to the law of the case as established by the preceding judge. This court has a fundamental disagreement with Judge McAvoy as to the nature of plaintiff's fifth cause of action, wherein she seeks to recover under "General Maritime Law" essentially for decedent's pain and suffering from the time of the accident until he died. See Amended Complaint at 18, PP 59 and 60. Even though there is no mention in that cause of action of a state survival statute, Judge McAvoy started from the assumption that that cause of action is based upon state law. As will be more fully explained in a moment, however, the Second Circuit has explicitly held that "the development of a general maritime law survival action necessarily precludes the application of state survival statutes." Preston, 11 F.3d at 358. Thus, in this court's opinion, after Preston, plaintiff Mayer is not free to assert a claim in this case based upon a state survival statute such as section 11-3.2 of the New York Estates Powers and Trusts Law. Any survival claim she may wish to pursue must be based upon general maritime survival law.
This distinction between the way Judge McAvoy characterizes plaintiff's fifth cause of action and the way this court characterizes such cause of action explains why this court has reached a different conclusion than did Judge McAvoy. Judge McAvoy believes that plaintiff's fifth cause of action is based upon state survival law, which would enable plaintiff to obtain a jury trial. In this court's opinion, however, Preston forecloses the availability of a state law survival action because of the development of a general maritime law survival action. Indeed, the Second Circuit expressly said as much when it explained in Preston, "as the expansion of general maritime law remedies for wrongful death . . . has circumscribed the application of state wrongful death statutes in admiralty, . . . , so the development of a general maritime law survival action necessarily precludes the application of state survival statutes." 11 F.3d at 358 (citations omitted). Further, the Court soundly reasoned, "'Without such preclusive effect, 'the tensions and discrepancies' resulting from application of state remedial statutes could not be removed.'" Id. (quoting Wahlstrom, 4 F.3d at 1089) (quoting in turn Moragne v. States Marine Lines, Inc., 398 U.S. 375, 401, 90 S. Ct. 1772, 1788, 26 L. Ed. 2d 339 (1970)). Consequently, the Second Circuit in Preston explicitly rejected the plaintiffs' argument "that state law survival claims traditionally are permitted in federal admiralty actions[.]" Id. (citations omitted).
Plaintiff Mayer attempts to limit the application of Preston to its facts by pointing out that the plaintiffs therein sought recovery under Connecticut's survival statute which, unlike the general maritime survival action, allows for recovery of lost future earnings. Plaintiff further notes that, in contrast, New York's survival statute, upon which she relies, does not allow for recovery of lost future earnings, and thus is not preempted by general maritime survival law. Given the Preston Court's broad language though, this court does not believe that that factual distinction renders Preston inapplicable here. There is nothing in Preston suggesting that the Court intended to limit its holding therein to situations where the remedies available under a state survival statute are at odds with those available under a general maritime law survival action. Thus, given the Preston Court's unequivocal language, in this court's opinion, as already noted, the only possible basis for plaintiff's fifth cause of action is as an action premised upon federal general maritime survival law. Consequently, plaintiff's only two remaining causes of action - one based upon DOHSA and the other based upon general maritime survival law - are both based in admiralty law. Plaintiff Mayer is not entitled to a jury trial, therefore, because jury trials are not available in admiralty actions. See, e.g., Complaint of Great Lakes Dredge & Dock Co., 895 F. Supp. 604, 608 (S.D.N.Y. 1995) (citations omitted); and McAleer v. Smith, 791 F. Supp. 923, 930 (D.R.I. 1992) (citation omitted) ("Admiralty claims, including those for conscious pain and suffering, and DOHSA claims are generally tried by the Court sitting without a jury.").
Furthermore, the court agrees with Cornell that the cases cited by Judge McAvoy for the proposition that when admiralty claims are joined with claims which carry the right to a jury, the right to a jury prevails, are not dispositive here. That is so because although he correctly stated the general rule of law in that regard, Judge McAvoy failed to take into account a critical distinction between those cases and the present one: in each of those cases the plaintiffs had at least one cause of action, separate and apart from admiralty, which gave them an independent jurisdictional basis, along with the right to a jury trial. For example, in In re Korean Air Lines Disaster of Sept. 1, 1983, 798 F. Supp. 755 (E.D.N.Y. 1992), the court had concurrent jurisdiction; there was federal question jurisdiction based upon the Warsaw Convention, which entitled plaintiff to a jury trial, as well as admiralty jurisdiction based upon DOHSA. Likewise, the plaintiffs in In re Air Crash Disaster Near Honolulu, Hawaii, 783 F. Supp. 1261 (N.D.Cal. 1992), were entitled to a jury trial because they all asserted viable claims under the Warsaw Convention. Id. at 1266. They did not invoke the court's admiralty jurisdiction. By contrast, as previously explained, the only remaining causes of action in this case are both admiralty based. Because under Preston plaintiff Mayer cannot maintain a state survival cause of action, it stands to reason that she is not entitled to invoke the court's diversity jurisdiction so as to gain the right to a jury trial in this DOHSA based admiralty action. See Thornhill v. Otto Candies, Inc., 94-1479, 1994 U.S. Dist. LEXIS 13861, at *15 (E.D.La. Sept. 27, 1994) (plaintiffs not entitled to jury trial for DOHSA claims and general maritime law survival actions).
The court is well aware of the parties' revised pre-trial stipulation mentioned earlier. It is plaintiff's position that that stipulation standing alone is dispositive of the current reconsideration motion on the jury trial issue. The court disagrees. The court has an independent obligation to examine the basis for its jurisdiction, see Lebron v. National Railroad Passenger Corp., 69 F.3d 650, 1995 U.S. App. LEXIS 31016, at *25-*26 (2nd Cir. 1995), and may do so at any point in the litigation. Therefore, the parties are not free to stipulate (if indeed, that is what they stipulated to here) to a jurisdictional basis which is not available in law. Accordingly, the court does not find that the parties' revised pre-trial stipulation requires this court to ignore its obligation to independently ascertain the jurisdictional basis for plaintiff's remaining causes of action.
For all of the foregoing reasons, the court is persuaded that given the basis for plaintiff's remaining two causes of action, to allow Judge McAvoy's April 15, 1995, MDO to stand would result in clear error and/or manifest injustice. In particular, as the previously discussed case law makes clear, at least in this Circuit, the only possible basis for plaintiff's fifth cause of action is as a general maritime survival law claim. And because such claim is grounded in admiralty, clearly plaintiff is not entitled to a jury trial with respect thereto.
Before concluding, the court notes that it is fully cognizant of case authority supporting the proposition that DOHSA does not preempt state survival claims, and hence such claims may be tried to a jury. See, e.g., Palischak v. Allied Signal Aerospace Co., 893 F. Supp. 341, 348-351 (D.N.J. 1995); and Mynatt v. Heine, 89-0748, 1991 WL 45734, at *4 (D.D.C. March 21, 1991). However, even if that was the law in this Circuit at one time, it is not now. The Second Circuit in Preston unequivocally held that the availability of a general maritime law survival action precludes a state law survival action. Obviously, as a district court sitting within the Second Circuit, this court is bound to follow Preston with all of its ramifications; and it is free to disregard authority to the contrary outside this Circuit. Moreover, as the court pointed out in Palischak, where, interestingly, it opined that "the better view is that the survival action arises from general maritime law," as opposed to arising under state survival statutes, "in most circuits," where a survival action arises under general maritime law, "the entire case could be heard by a judge sitting without a jury." 893 F. Supp. at 351 n. 11 (and discussion therein at 348-49). Thus, for all of these reasons, the court holds that this case will proceed to trial on Wednesday, December 6, 1995, at 10:00 a.m. without a jury.
IT IS SO ORDERED.
DATED: December 5, 1995
Syracuse, New York
Neal P. McCurn
Senior U.S. District Judge
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