ORDER DENYING MOTION TO STRIKE JURY DEMAND

BETH BLOOM, District Judge.

THIS CAUSE is before the Court upon the Motion, ECF No. [109] (the "Motion"), of Defendants Royal Caribbean Cruises, Ltd. ("Royal Caribbean") and the M/V LIBERTY OF THE SEAS (the "Vessel", and together, "Defendants") to Strike Plaintiffs Andrezej Tarasewicz and Joanna Paschilke Tarasewicz's ("Plaintiffs") demand for a trial by jury. Plaintiffs oppose the Motion, ECF No. [138] (the "Response"), and Defendants have replied, ECF No. [160] (the "Reply"). Defendant Kjetil Gjerstad joins in the Motion. ECF No. [151]. The Court has carefully reviewed the Motion, all supporting and opposing submission, relevant caselaw and authority, and the record in the case. For the reasons that follow, the Court DENIES the Motion.

I. BACKGROUND

Plaintiffs filed their Verified Complaint on April 15, 2014. ECF No. [1]. Within the next several days, Plaintiffs availed themselves of several procedural tools available only in admiralty, including arrest of the Vessel,1 see ECF No. [8], and service of discovery requests on the Vessel pursuant to Fed. R. Civ. P. Supp. R. C(6)(b) (available only in actions in rem). The Verified Complaint was captioned "AT LAW AND IN ADMIRALTY," and Plaintiffs' pleaded jurisdiction as follows:

Compl. ¶ 1. The Vessel is named as a Defendant, in rem, in each Count of the Verified Complaint.

On May 8, 2014, the Defendant Vessel moved to dismiss the Verified Complaint for lack of admiralty jurisdiction, ECF No. [17] (the "Motion to Dismiss"). On June 6, 2014, Royal Caribbean filed a motion for a more definite statement pursuant to Fed. R. Civ. P. 12(e), arguing that Plaintiffs had improperly lumped together the (then) fifteen named Defendants in the same Counts and had improperly incorporated all general factual allegations within each Count of the Verified Complaint. ECF No. [27] (the "12(e) Motion"). The parties fully briefed those motions. In defending the sufficiency of their pleading, Plaintiffs stated that they "have not `lumped' anything, but rather have appropriately pled in the alternative throughout the complaint which they have every right to do" and that the Verified Complaint "properly . . . placed the proper defendants in each Count" of the complaint. ECF No. [28] (Plaintiff's "Opposition to the 12(e) Motion") at 9, 14.

On December 18, 2014, the Court denied both motions, ECF Nos. [89] (the "MTD Order"), [90] (the "12(e) Order"). The Court determined that Fed. R. Civ. P. 9(h)2 "only applied when a claim is cognizable under admiralty or maritime jurisdiction and general maritime jurisdiction" such that "an action brought in rem against a vessel is a claim cognizable only in the admiralty or maritime jurisdiction and does not require a designation under Rule 9(h)(1)." MTD Order at 1, 3. It, therefore, denied the Vessel's Motion to Dismiss. The Court further determined that the Verified Complaint "is neither so vague nor so ambiguous as to justify" granting Royal Caribbean's request for a more definite statement. 12(e) Motion at 1.

Defendants filed the instant Motion on February 4, 2015. This matter was transferred to the undersigned on March 31, 2015. The Motion is ripe for adjudication.

II. DISCUSSION

Defendants argue that Plaintiffs are not entitled to a jury trial because they elected to sue in admiralty and not pursuant to this Court's general subject matter jurisdiction (e.g., due to diversity of citizenship).

The Constitution provides that the judicial power of the federal courts "shall extend . . . to all Cases of admiralty and maritime Jurisdiction." U.S. CONST. art. III, § 2, cl. 1. Congress implemented this constitutional grant through 28 U.S.C. § 1333(1), which provides that the district courts have original jurisdiction over "[a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled." This statutory grant gives federal courts jurisdiction over all admiralty and maritime cases, regardless of the citizenship of the parties or the amount in controversy. Critically for purposes of this discussion, no right to trial by jury exists with respect to claims brought in admiralty. Beiswenger Enters. Corp. v. Carletta, 86 F.3d 1032, 1036-37 (11th Cir. 1996) ("[I]n all admiralty cases, there is no right to a jury trial."); St. Paul Fire & Marine Ins. Co. v. Lago Canyon, Inc., 561 F.3d 1181, 1188 (11th Cir. 2009) (affirming the "the longstanding tradition in admiralty proceedings that the pleader has the right to determine procedural consequences (including the right to a jury trial [vel non]) by a simple statement in his pleading that the claim is an admiralty claim"); Penton v. Pompano Const. Co., 976 F.2d 636, 638 n.2 (11th Cir. 1992) ("As a general rule, maritime claims brought in admiralty are not triable to a jury.").

"However, the same statute that grants the federal courts exclusive admiralty and maritime jurisdiction saves to suitors `all other remedies to which they are otherwise entitled'" — including the right to trial by jury. Suzuki of Orange Park, Inc. v. Shubert, 86 F.3d 1060, 1063 (11th Cir. 1996) (quoting 28 U.S.C. § 1333(1)); see also Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 443 (2001) (the savings to suitors clause "protects the right of a common law remedy where the common law is competent to give it"). "[O]ne significance of the savings-to-suitors clause, [is that it] permits a litigant to obtain federal jurisdiction over, and jury resolution of, an admiralty question by invoking federal jurisdiction on an independent basis." Cont'l Cas. Co. v. Canadian Universal Ins. Co., 605 F.2d 1340, 1344 (5th Cir. 1979).3 Furthermore, while "the Seventh Amendment does not require jury trials in admiralty cases, neither that Amendment nor any other provision of the Constitution forbids them." Fitzgerald v. U. S. Lines Co., 374 U.S. 16, 20 (1963); see also Lasky v. Royal Caribbean Cruises, Ltd., 850 F.Supp.2d 1309, 1315 (S.D. Fla. 2012) (plaintiff would be entitled to trial by jury by federal court sitting in admiralty if plaintiff asserted "an independent basis for diversity jurisdiction and/or a concurrent claim that entitles plaintiff to a jury trial").

Rule 9(h) pertains to claims potentially brought in admiralty which implicate more than one jurisdictional basis. "If a claim has multiple jurisdictional bases, one of which is admiralty, Federal Rule of Civil Procedure 9(h) provides that the pleading may contain a statement identifying the claim as an admiralty or maritime claim.'" Murphy v. Florida Keys Elec. Co-op. Ass'n, Inc., 329 F.3d 1311, 1319 (2003) (quoting FED. R. CIV. P. 9(h)(1)). Of course, "[b]y the plain terms of Rule 9(h), a claim cognizable only under admiralty jurisdiction does not require a Rule 9(h) election because admiralty procedures will automatically apply to that claim." Luera v. M/V Alberta, 635 F.3d 181, 188 (5th Cir. 2011); see FED. R. CIV. P. 9(h)(1) ("A claim cognizable only in the admiralty or maritime jurisdiction is an admiralty or maritime claim for those purposes, whether or not so designated."). As with Plaintiffs' claims against the Defendant Vessel here (and as the Court previously explained in the MTD Order), claims brought in rem against a vessel are cognizable only in admiralty and do not require a designation under Rule 9(h)(1). But, "[i]f a case sounding in both admiralty and common law arises from a single incident in which in personam jurisdiction is alleged, the plaintiff can choose between filing the complaint in state court based on in personam jurisdiction, in federal court based on the applicable jurisdiction, or in federal court pursuant to Rule 9(h) of the Federal Rules of Civil Procedures." Se. Marine, LLC v. Motor Yacht OCEAN CLUB, 2010 WL 2540701 at * 1 (M.D. Fla. Jun. 21, 2010). In the Eleventh Circuit, a plaintiff who fails to choose between admiralty jurisdiction and some other basis for jurisdiction is presumed to have elected not to proceed in admiralty. Murphy, 329 F.3d at 1319 ("Failure to identify a claim as an admiralty or maritime claim in these circumstances means that it is not one."); Harris v. Flow Int'l Corp., 2007 WL 3011267, at *1 (M.D. Fla. Oct. 12, 2007) ("[F]ailure to identify a claim as sounding in admiralty in the complaint means a court's admiralty jurisdiction will not apply."); Hutchinson v. M/V MOL ENDURANCE (IN REM), 2011 WL 4433282, at *3 (S.D. Ga. Sept. 21, 2011) ("The Eleventh Circuit ruled that if a claim can be pled in admiralty and non-admiralty, yet is not pled in admiralty, then by default it is preservationally deemed a non-admiralty claim."); see also M-Cubed LLC v. Maersk Line Ltd., 374 F. App'x 701, 702 (9th Cir. 2010) (plaintiff who does not wish to invoke admiralty jurisdiction need not affirmatively state anything).

This case involves a sub-issue recently analyzed by the Fifth Circuit: "whether [a plaintiff] nevertheless necessarily made a Rule 9(h) election to proceed under the admiralty rules for her in personam claims by the mere presence of the in rem admiralty claims in her complaint." Luera, 635 F.3d at 189-90. The Luera Court concluded that "the mere presence of admiralty claims in the same complaint as claims premised on diversity jurisdiction does not preclude a jury trial." Id. at 190. See also Fitzgerald, 374 U.S. at 20-21 (admiralty claims may be tried to a jury when the parties are entitled to a jury trial on non-admiralty claims); Ghotra v. Bandila Shipping, Inc., 113 F.3d 1050, 1053-57 (9th Cir. 1997) (concluding that there was "nothing inherently incongruous about bringing an in rem and an in personam claim together before the jury when the claims arise out of a single occurrence"); Vodusek v. Bayliner Marine Corp., 71 F.3d 148 (4th Cir. 1995) (same, following Fitzgerald). The plaintiff in Luera had "preserved her Seventh Amendment right to a jury trial by pleading diversity as the sole basis, rather than an alternate basis, for the court's jurisdiction over her claims against the in personam defendants." Id. at 185 (emphasis added). And, unlike the facts in the prior Fifth Circuit precedent — where "the plaintiffs had asserted both admiralty and diversity subject matter jurisdiction for the same claim" and "did not specifically assert diversity jurisdiction as the only basis for subject matter jurisdiction over their in personam claims" — the plaintiff in Luera stated separate claims in separate counts against the in rem defendants and the in personam defendants. Id. at 189-90. The Fifth Circuit highlighted that "Rule 9(h) applies to `claims' and not to entire cases." Id. at 190 (quoting FED. R. CIV. P. 9(h)(1)). That is, the jurisdictional analysis is claim by claim, not case by case. Therefore, a plaintiff may choose to proceed in admiralty as to certain claims, and assert a separate jurisdictional basis (e.g., diversity) for other claims, within the same complaint, without sacrificing her jury rights. As the Luera court explained,

Id. at 195.

Defendants highlight what they view as several distinctions between the case at bar and the facts in Luera, which, they argue, require the Court to strike Plaintiffs' jury demand. Unlike the plaintiff in Luera, Plaintiffs here chose to mix in rem and in personam defendants within the same claims. In fact, when Royal Caribbean, in the 12(e) Motion, characterized the Verified Complaint as having improperly lumped in rem and in personam defendants together in the same Counts, Plaintiffs stressed that they "properly . . . placed the proper defendants in each Count" of the complaint. Second, Defendants interpret Plaintiffs' jurisdictional statement in the Verified Complaint as asserting admiralty jurisdiction over each claim. Third, Defendants stress that Plaintiffs have utilized procedural tools available only in admiralty — such as, most significantly, seizure of the Vessel. Finally, Defendants read the law of the case — the 12(e) and MTD Orders — as having confirmed that Plaintiffs are proceeding here only in admiralty. Defendants maintain that together, these facts demonstrate that Plaintiffs have chosen to sue in admiralty as to every Count of the Verified Complaint.

The Court's analysis of the facts here compels the opposite conclusion.

There is some case law to the effect that, once a plaintiff avails herself of special admiralty procedures, she foregoes procedural and substantive remedies available at law. See, e.g., Se. Marine, 2010 WL 2540701 at *5 (finding that plaintiff had "waived its right to a jury trial through the initiation of this action in admiralty, by so designating the case in the caption and by invoking Rule 9(h) throughout the pleadings, and by virtue of having received procedural benefits available only to admiralty litigants" — i.e., having "`reaped the admiralty advantages' through its use of a stipulation in lieu of vessel arrest and the procurement of a letter of undertaking from the vessel's insurer"). The Court respectfully disagrees. So holding would require the Hobson's choice described by the Fifth Circuit — between bringing an in rem claim, along with its attendant procedural remedies, and thereby foregoing important rights on related in personam claims; and asserting in personam claims and preserving those rights (i.e., to trial by jury), but foregoing legally cognizable in rem claims. A plaintiff is entitled to bring both in rem and in personam claims within the same complaint, without sacrificing her procedural or jury rights as to either set of claims, respectively. The fact that Plaintiffs have utilized the tools of this Court's admiralty jurisdiction to pursue their claims against the Vessel in rem does not preclude them from pursuing other claims against other defendants, in personam, in this same action.4

Neither does the Court agree with Defendant's interpretation of Plaintiffs' assertion of jurisdiction. Plaintiffs captioned this case as proceeding both at law and in admiralty. The primary stated basis of jurisdiction was diversity, pursuant to 28 USC § 1332(a)(1). Admiralty jurisdiction was asserted as an alternative basis. Of course, as the Court has previously held, Plaintiffs must be proceeding in admiralty with respect to their in rem claims against the Vessel. Such claims are not otherwise legally cognizable. Plaintiffs therefore asserted two alternative basis for the Court's jurisdiction over their in personam claims, and explicitly declined to make "an election under Rule 9(h) to proceed in admiralty, but rather elect[ed] to proceed at common law and preserve their right to a jury trial for any and all claims and defenses so triable."

Plaintiffs alternative statement of jurisdiction is not harmful to their jury rights. First, the most straightforward reading of the Verified Complaint is that Plaintiffs intended to assert admiralty jurisdiction where necessary, but proceed at law, and preserve their jury rights available at law, as to their in personam claims and where such rights are available. Equally important, unlike in the Fifth Circuit, in the Eleventh, failure to choose between admiralty jurisdiction and some other basis for jurisdiction creates a presumption against proceeding in admiralty. Compare Murphy, 329 F.3d at 1319 ("Failure to identify a claim as an admiralty or maritime claim in these circumstances means that it is not one."); Harris v. Flow Int'l Corp., 2007 WL 3011267 at *1; Hutchinson, 2011 WL 4433282 at *3; with Luera, 635 F.3d at 189-90 ("[I]n this circuit a plaintiff who asserts admiralty jurisdiction as a basis for the court's subject matter jurisdiction over a claim has automatically elected under Rule 9(h) to proceed under the admiralty rules, even if she states that her claim is also cognizable under diversity or some other basis of federal subject matter jurisdiction. . . . "[A] plaintiff who fails to choose between admiralty jurisdiction and some other basis of subject matter jurisdiction for a claim is presumed to have elected under Rule 9(h) to proceed under admiralty jurisdiction and the admiralty procedures for that claim."). Even if Plaintiffs had remained silent on the Rule 9(h) election, this Court would presume that they chose to proceed at law and thereby to preserve their jury rights.

Neither Plaintiffs' responses to Defendants' previous motions attacking the Verified Complaint, nor the law of the case, have locked Plaintiffs in to proceeding only in admiralty. The Verified Complaint does include all defendants, including the Vessel, in all Counts asserted. Plaintiffs may have been better served by duplicating each Count in the complaint to separate out the in rem and in personam defendants, especially when confronted with the 12(e) Motion.5 But as the Court previously held, the Verified Complaint was nonetheless not fatally vague or ambiguous. That is, reading Plaintiffs' jurisdictional statement alongside the claims asserted, the Verified Complaint is sufficiently clear in asserting jurisdiction in admiralty with respect to Plaintiffs' in rem claims against the Vessel, and diversity jurisdiction with respect to Plaintiffs' remaining claims against the other defendants.

III. CONCLUSION

Plaintiffs have preserved their jury rights for their in personam claims where such rights exist. The presence of Plaintiffs' admiralty claims in this same action does not defeat those rights. Accordingly, it is hereby ORDERED AND ADJUDGED that Defendants' Motion, ECF No. [109], is DENIED.

While Defendants argued that Plaintiffs are not entitled to a jury trial, they did not proactively demand a bench trial. The Court will not decide an issue not before it. That said, the Supreme Court has instructed that in situations like this one, "[o]nly one trier of fact should be used for the trial of what is essentially one lawsuit to settle one claim split conceptually into separate parts because of historical developments." Fitzgerald, 374 U.S. at 21; see also Debellefeuille v. Vastar Offshore, Inc., 139 F.Supp.2d 821, 826 (S.D. Tex. 2001) (relying on Fitzgerald to empanel jury to hear both admiralty and non-admiralty claims arising from same set of facts); Tucker v. Cascade Gen., Inc., 2011 WL 5057052, at *10 (D. Or. Oct. 24, 2011) (relying on Fitzgerald to grant plaintiff's request for advisory jury over government's objection and desire for a bench trial in admiralty where multiple claims arose from the same fact pattern). The parties are advised to proceed under the assumption that this Court will follow that guidance, unless convinced to do otherwise by appropriate motion citing contradicting authority.

DONE AND ORDERED.