Introduction
As maritime attorneys understand,[1] claims brought in admiralty do not bring an automatic right to jury trial.[2] Whether to preserve a jury trial thus becomes part of the plaintiff’s pleading strategy.[3] But what about counterclaims? Can a plaintiff’s strategic decision to sue in admiralty under Federal Rule of Civil Procedure 9(h) preclude a defendant from obtaining a jury? As with many legal questions: it depends.
The Seventh Amendment provides that “in suits at common law . . . the right to a jury trial shall be preserved.” But maritime law is not “common law.”[4] The difference between a plaintiff’s claim and a defendant’s counterclaim can thus be the speed of the draw. Can it be that because plaintiffs have chosen to sue first that defendants have lost all legal rights to jury trial under the Seventh Amendment?
Without direct Supreme Court precedent on this matter, the circuit courts have established their own rules. And the circuits are split on whether defendants’ counterclaim(s) may entitle them to a jury trial when a plaintiff has elected to bring its claim under admiralty law. In other words, while the rules make clear that defendants are subject to plaintiff’s choice of admiralty jurisdiction, and its consequences, defendants may not have necessarily lost their right to jury for their own counterclaim(s).
The Circuit Split
- Development of Circuit Court Jurisprudence Regarding the Right to a Jury for Counterclaims.
In 1978, the Fifth Circuit, in Harrison v. Flota, held that a plaintiff may bar a right to jury trial by bringing its claims under Rule 9(h).[5] The Harrison court opined that the FRCP’s drafters intended for pleaders to have control over the procedural rights of parties.[6] This intention, in combination with the historic lack of right to jury trial at admiralty, compelled the Fifth Circuit to find that parties seeking jury trial could be denied by the procedural bar of 9(h).[7] This reasoning is also followed by the Eleventh Circuit.[8]
In 1981, the Eighth Circuit, in Koch Fuels v. Cargo of 13,000 Barrels, took a more balanced approach, reasoning that “[a]lthough there is no constitutional right to a jury trial in an admiralty case, neither is there a prohibition against jury trials in admiralty cases.”[9] The Eighth Circuit acknowledged that plaintiffs have a right to designate the procedure chosen when asserts claims under Rule 9(h), and also that the trial court did not err in severing defendant’s counterclaims to preserve defendant’s right to jury trial.[10]
In 1991, the Ninth Circuit, in Wilimington v. U.S. Dist. Ct. for Hawaii, expressly rejected the reasoning of Harrison to find that “[r]egardless of whether a claim is cognizable in admiralty, the right to a jury trial on such claim is preserved despite plaintiff’s election to proceed in admiralty.[11] The court recognized that no matter how counterclaims are brought, defendants are entitled to a right to a jury trial on those claims if such a right would otherwise apply.[12]
Four circuits have thus come to three distinct approaches on the same issue. The Fifth Circuit (and Eleventh Circuit) hold that a plaintiff’s Rule 9(h) election controls. The Ninth Circuit holds that the Seventh Amendment applies to a counterclaim regardless of the plaintiff’s election. Finally, the Eighth Circuit has a balancing approach, reasoning that a plaintiff generally can choose procedure, but a defendant’s counterclaim may be severed to preserve a defendant’s right to jury trial depending on the nature of the claims.
District Court Decisions Regarding the Right to a Jury for Counterclaims.
The district courts have distilled these standards into two factual buckets. First, when the defendant’s counterclaim(s) is not factually related to the plaintiff’s claim, the claim(s) will likely be severed, thus having a separate jury trial for that counterclaim. This finds support in Wilmington, which reasoned that when counterclaims are “not related factually, then the district court may order separate trials in order to preserve the non-jury aspect of admiralty jurisdiction.”[13]
Second, if the counterclaim(s) does arise from the same set of facts as the original claim, the district court does one of two things: (a) striking the demand for jury trial; or (b) forcing an admiralty claim into jury trial.
- Arise from Different Set of Facts – Severing the Claims.
The severing of non-factually similar claims is the majority position.[14] Still, the ability of courts to sever is restricted by the normative tenants of severance: consistency and lack of prejudice.[15] In turn, if it’s likely that severing will result in inconsistent rights for parties, the court will not sever, and instead will either (i) strike a demand to jury trial under the precedent set by the Fifth Circuit; or (ii) force an admiralty claim into a jury trial as the Ninth Circuit provides.
- Arise from Same Set of Facts – Jury is Paramount.
The Ninth Circuit represents the minority position that the Seventh Amendment’s right to a jury trial seemingly trumps all traditional admiralty procedure, whether brought from the same set of facts or otherwise.[16] Courts finding under this reasoning are likely to conclude that a defendant’s counterclaim(s) brings the right to a jury trial, and that right thus brings a procedural power to force the entire action to a jury trial.[17] This position is favored for its judicial economy and liberal joinder rules, but disregards admiralty law’s strong non-jury tradition.
- Arise from Same Set of Facts – Strike
Though no circuit court has done so directly, a second minority position is that a district courts will simply strike demands for jury trial where the plaintiff has already chosen admiralty.[18] But notably, so far, this has only occurred when defendant’s counterclaim arose from the same set of facts as the plaintiff’s claim, thus creating strong likelihood that severance would prejudice one or both parties.
In the end, for practitioners, it’s critical to first understand the factual underpinnings for both claims and counterclaims. The parties need to know whether the claims are factually similar or dissimilar, a factor that dictates options depending on the jurisdiction. The next most important consideration is knowing the jurisdiction that you’re in. Without guiding Supreme Court precedent, circuit court authority may dictate the outcome.
If you are considering bringing an admiralty case or are facing claims in admiralty, please contact the experienced admiralty and maritime attorneys at Eckland & Blando LLP.
[1] Co-authored with Robby Dube, partner at Eckland & Blando LLP; research and drafting assistance provided by Autumn Zierman, former law clerk at Eckland & Blando LLP.
[2] Fitzgerald v. United States Lines, 374 U.S. 16, 20 (1963); see also Fed. R. Civ. Pro. 38(e) (“These rules do not create a right to a jury trial on issues in a claim that is an admiralty or maritime claim under Rule 9(h).”).
[3] Fed. R. Civ. P. 9(h), Advisory Committee Note, 39 F.R.D. 69, 75-76 (1966) (“[A]t present the pleader has [the] power to determine procedural consequences by the way in which he exercises the classic privilege.”).
[4] See generally Waring v. Clarke, 46 U.S. 441 (1847).
[5] Harrison v. Flota Mercante Grancolombiana, S.A., 577 F.2d 968 (5th Cir. 1978).
[6] Id. at 986 (Referring to the Advisory Committee Notes for FRCP 9(h) to conclude that drafters intended to “work no change in the general rule that admiralty claims are to be tried without a jury.”).
[7] Id. at 986. (“[B]y electing to proceed under 9(h) rather than by invoking diversity jurisdiction, the plaintiff may preclude the defendant from invoking the right to trial by jury which may otherwise exist.”).
[8] As a successor circuit, the Eleventh Circuit, in St. Paul Fire v. Marine Ins. followed Harrison as precedential authority and did not engage in independent analysis weighing the right to jury trial against traditional maritime claims. See St Paul Fire and Marine Ins. Co. v. Lago Canyon, Inc., 561 F.3d 1181 (11th Cir. 2009).
[9] Koch Fuels, Inc. v. Cargo of 13,000 Barrels of No. 2 Oil, 704 F.2d 1038, 1041 (8th Cir. 1983).
[10] Id. at 1042.
[11] Wilmington Tr. v. U.S. Dist. Ct. for Dist. of Hawaii, 934 F.2d 1026, 1031 (9th Cir. 1991) (cert. denied, 503 U.S. 966 (1992)).
[12] Id. at 1032.
[13] Id.
[14] See Clear Spring Prop. & Cas. Co. v. Arch Nemesis, LLC, 741 F. Supp. 3d 949, 954 (D. Kan. 2024) (compiling and addressing case authority).
[15] Fed. R. Civ. P. 42(b); 704 F.2d at 1042. See also Great Lakes Insurance SE v. Andersson, 525 F. Supp. 3d 2025, 208 (D. Mass. 2021) (refusing to sever trials because “it is impossible for both parties to prevail using different factfinders without prejudicing each other or arriving at different results”).
[16] See, e.g., Hanjin Shipping Co. v. Jay, 1991 WL 12017913, at *1 (C.D. Cal. July 6, 1991).
[17] See, e.g., Trans Bay Cable LLC v. M/V Ocean Life, No. 14-CV-04854-JD, 2015 WL 7075618, at *3 (N.D. Cal. Nov. 13, 2015).
[18] See, e.g., Norwalk Cove Marina, Inc. v. S/V ODYSSEUS, 100 F. Supp. 2d 113, 114 (D. Conn. 2000) (striking defendant’s demand for jury trial where it interfered with plaintiff’s right to determine the character of the action.); Adams v. James Transp., LLC, No. 5:09-CV-00036-R, 2010 WL 4789290, at *2 (W.D. Ky. Nov. 17, 2010) (granting plaintiff’s motion to amend for admiralty jurisdiction to preclude jury trial over defendant’s objections); ING Grp. v. Stegall, No. CIVA03-PC-1621(BNB), 2004 WL 3178077, at *3 (D. Colo. Sept. 28, 2004) (striking defendant’s demand for jury trial where “defendant could not prevail on his legal counterclaim without prejudicing the plaintiff because the claims and counterclaims . . . arise from a common set of facts”).