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December 5, 1995

MARGARET MAYER, Individually, and as Executrix of the ESTATE OF JAMES E. MAYER, Deceased, Plaintiff,

The opinion of the court was delivered by: MCCURN

 On December 4, 1995, the court heard oral argument with respect to the November 29, 1995, letter of defendants Cornell University and Laura Brown (collectively referred to throughout as "Cornell"), requesting this court to revisit the issue of whether plaintiff Mayer is entitled to a jury trial. After oral argument the court gave some but not all of its reasons for concluding that plaintiff Mayer is not entitled to a jury trial on her remaining causes of action. At oral argument, the court mentioned that it would be issuing a memorandum decision and order fully setting forth its analysis of the jury trial issue, and following constitutes the court's decision in this regard.


 As the parties are well aware, whether plaintiff Mayer is entitled to a jury trial has been the subject, both directly and indirectly, of several prior motions in this case. Because Judge McAvoy's prior decisions in that regard are a part of the record, the court sees no need to repeat the entire history of this issue at this point. Suffice it to say that Judge McAvoy, to whom this case was originally assigned, most recently held that "both plaintiff's state survival action and his DOHSA claim will be submitted to the jury." Memorandum Decision & Order ("MDO") (N.D.N.Y. April 15, 1995) (McAvoy, C.J.) at 4, Docket Entry # 162. Defendant Cornell did not move for reconsideration of that order within ten days after its entry, as it had a right to do under Local Rule 7.1(g). Instead, with the permission of this court on November 29, 1995, Cornell submitted a letter via FAX wherein it seeks to have this court revisit the issue of whether plaintiff is entitled to a jury trial on her remaining two causes of action. A copy of this letter motion was also FAXed to plaintiff on November 29, 1995. The next day, on November 30, 1995, the court advised plaintiff's counsel and Cornell's counsel, by telephone, that it would hear Cornell's motion for reconsideration on Monday, December 4, 1995, at 10:00 a.m. The court also gave plaintiff permission to respond in writing to this motion, and that was done.

 Basically, it is Cornell's position that plaintiff is not entitled to a jury trial in this action because her only two remaining causes of action sound in admiralty, and traditionally there is no right to a jury trial in such actions. Plaintiff vehemently responds that she is entitled to a jury because, among other reasons which will be more thoroughly addressed herein, that is the law of the case; and in fact, after Judge McAvoy's April 15, 1995, MDO, in a revised pre-trial stipulation filed with the court on May 1, 1995, the parties agreed "that the law of the case is that the basis of federal jurisdiction . . . , is diversity (28 U.S.C. § 1332) as to the survival action under § 11-3.2 of the New York Estates Powers and Trusts Law. . . ." Revised Pre-Trial Stipulation at 1, P 1 (citations omitted), Docket Entry # 168.


 Before addressing the merits of the jury trial issue, the court must consider the timeliness of this motion; that is whether at this late date the court should entertain what it deems to be a reconsideration motion by Cornell. Clearly it would have been preferable for Cornell to have timely moved for reconsideration as Local Rule 7.1(g) allows. (As an aside, the court notes that Fed. R. Civ. P. 60(b), which allows, in some instances, for reconsideration of final judgments not more than one year after the judgment, does not come into play here because the disputed jury trial order is non-final.) The court has determined, however, that under all of the circumstances, it will exercise its plenary power to reconsider Judge McAvoy's non-final order as to the propriety of a jury trial in this case. See Lewis v. Grinker, 660 F. Supp. 169, 170 n. 1 (E.D.N.Y. 1987) (citation omitted) ("Since no final judgment has been entered in this case, the decision whether or not to reconsider a non-final order is within the plenary power of this Court."). This is fully consistent with the "'well-established [rule] that the interlocutory orders and rulings made pre-trial by a district judge are subject to modification by the district judge at any time prior to final judgment[.]'" Conrad v. Beck-Turek, Ltd., Inc., 891 F. Supp. 962, 967 (S.D.N.Y. 1995) (quoting In re United States, 733 F.2d 10, 13 (2nd Cir. 1984)) (emphasis added).

 The next issue is whether, as plaintiff contends, the law of the case doctrine bars reconsideration by this court of Judge McAvoy's April 15, 1995, MDO. As the Second Circuit recently stated, "Under the doctrine of law of the case, 'a legal decision made at one stage of litigation, unchallenged in a subsequent appeal when the opportunity to do so existed, becomes the law of the case for future stages of the same litigation, and the parties are deemed to have waived the right to challenge that decision at a later time.'" North River Ins. Co. v. Phila. Reinsurance Corp., 63 F.3d 160, 164 (2nd Cir. 1995) (quoting Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 258 U.S. App. D.C. 124, 810 F.2d 243, 250 (D.C.Cir. 1987)). This doctrine has its conceptual underpinnings in "the jurisprudential desire to maintain consistency and avoid reconsideration of matters once decided during the course of a single lawsuit." Scottish Air. Intern. v. British Caledonian Group, 152 F.R.D. 18, 24 (S.D.N.Y. 1993) (citations omitted); see also Dictograph Products Co. v. Sonotone Corp., 230 F.2d 131, 135 (2nd Cir. 1956) (L. Hand, J.) ("There is no imperative duty to follow the earlier ruling - only the desirability that suitors shall, so far as possible, have reliable guidance how to conduct their affairs.").

 However, the "law of the case is not a commandment etched in stone." Childress v. Taylor, 798 F. Supp. 981, 993 (S.D.N.Y. 1992); see also Conrad, supra, 891 F. Supp. at 967 (internal quotations and citations omitted) ("The doctrine is not an inviolate rule of law but merely expresses the general practice of refusing to reopen what has been decided."). It is a discretionary doctrine "and 'does not constitute a limitation on the court's power.'" Id. (quoting United States v. Birney, 686 F.2d 102, 107 (2nd Cir. 1982)); see also DiLaura v. Power Authority of State of New York, 982 F.2d 73, 76 (2d Cir. 1992) (same). Thus, when a court is asked to reconsider its own prior rulings, under the "more flexible branch" of the law of the case doctrine, it may do so "when those previous decisions were substantially erroneous or when reconsideration is necessary to avoid injustice." Scottish Air, 152 F.R.D. at 25 (internal quotations and citations omitted). "Generally, however, the law of the case counsels against reconsideration absent compelling circumstances, including an intervening change of law, the availability of new evidence, or to correct a clear error or prevent manifest injustice." Id. (internal quotations and citations omitted). Consequently, although "[a] court should be loathe to revisit an earlier decision[,]" North River, 63 F.3d at 165 (internal quotations and citations omitted), and although it should exercise its underlying power to reconsider earlier rulings "sparingly," id. (internal quotations and citations omitted), as the foregoing demonstrates, there are certain circumstances where reconsideration is appropriate.

 What is more, the fact that the present case has been reassigned to this court does not preclude reconsideration by this court because non-final district court orders and rulings "'may be modified to the same extent if the case is reassigned to another judge.'" Conrad, supra, 891 F.2d at 967 (quoting In re United States, 733 F.2d at 13 (emphasis added). That is so because "'judges of coordinate jurisdiction are not bound by each others rulings, but are free to disregard them if they so choose.'" Id. (quoting Birney, supra, 686 F.2d at 107). The only limitation upon that general rule is that "prejudice not ensue to the party seeking the benefit of the doctrine . . . In this context, prejudice does not mean the harm which results from a failure to apply the doctrine; rather, it refers to a lack of sufficiency of notice and an opportunity to prepare armed with the knowledge that one judge is disregarding the ruling of another.'" 891 F.2d at 967-968 (quoting Birney, 686 F.2d at 107).

 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 ...

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