The opinion of the court was delivered by: Leon Jordan United States District Judge
This civil action is set for hearing on defendant's "Motion for Further Relief" [doc. 174]. Now before the court is plaintiff's "Motion for the Scheduled Hearing to Be to a Jury" [doc. 198]. Defendant has responded [doc. 200] to the jury motion, and plaintiff has submitted a reply [doc. 201].
On the unique facts of this case, it is concluded that a proper jury demand is not now before the court. In the alternative, plaintiff has withdrawn its initial jury demand. Further, the court declines to exercise its discretion to order a jury hearing under Federal Rule of Civil Procedure 39(b). Plaintiff's jury motion will accordingly be denied.
The extensive history of this litigation has been set forth in the prior opinions of this court and in the April 3, 2006 opinion of the United States Court of Appeals for the Sixth Circuit. The Sixth Circuit affirmed all disputed prior rulings of this court, with the exception that the grant of summary judgment in favor of plaintiff on its declaratory judgment count was reversed with instructions to enter summary judgment in favor of defendant.
On February 9, 2007, defendant filed its "Motion for Further Relief" pursuant to 28 U.S.C. § 2202, which authorizes "[f]urther necessary or proper relief based on a declaratory judgment . . . against any adverse party whose rights have been determined by such judgment." On April 7, 2008, the court entered an order providing in material part,
This non-jury case is before the court on defendant's "Motion for Further Relief" [doc. 174]. The motion is SET for an evidentiary hearing, for the court to determine the amount of damages to which defendant is entitled, on August 25, 2008 . . .. [Doc. 197] (italics added).
By its present motion, plaintiff seeks to have defendant's "Motion for Further Relief" determined by a jury. In support of the motion, plaintiff argues that it is entitled to a jury as a matter of law in that a jury was demanded in the original Complaint (doc. 1); the waiver to [sic] a hearing to a jury was limited to those issues heard by this Court which resulted in its decision of July 26, 2004, (Doc. 161); and that the issue tendered by BNFL's [motion] are beyond issues previously heard and decided. [Doc. 198].
The court deems the following timeline relevant to plaintiff's jury motion: December 7, 2001 Plaintiff filed its original complaint, with jury demand. [Doc. 1].
February 15, 2002 Defendant filed its original answer, with no jury demand. [Doc. 5].
April 9, 2002 The court entered its scheduling order, setting this case for a jury trial consistent with plaintiff's demand. [Doc. 9].
January 31, 2003 Plaintiff filed its first amended complaint, with jury demand. [Doc. 33].
March 11, 2003 Plaintiff filed its second amended complaint, with no ...