IN THE UNITED STATED DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

ROBERT E. COLE Attorney For Plaintiff

ROBERT E. COLE, P.C.

ATTORNEY I.D. NO. 73263

437 CHESTNUT STREET, SUITE 218

PHILADELPHIA, PA 19106

(215) 922-2050

___________________________________

OWEN J. ROGAL, D.D.S., P.C. :

d/b/a THE PAIN CENTER

501-07 SOUTH 12TH STREET

PHILADELPHIA, PA 19147

Plaintiff :

V. : NO. 3:06cv728-MHT

SKILSTAF, INC. :

P.O. BOX 729

ALEXANDER CITY, AL 35011

Defendant :

___________________________________

PLAINTIFF OWEN J. ROGAL, D.D.S., P.C.’S BRIEF IN OPPOSITION TO

DEFENDANT SKILSTAF, INC.’S MOTION TO STRIKE JURY DEMAND

Case 3:06-cv-00728-MHT-WC Document 74 Filed 08/17/2007 Page 1 of 6
TABLE OF CONTENTS

I. INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . 3

A. COUNTER-STATEMENT OF UNDISPUTED FACTS. . . . . . . . . 3

B. STATEMENT OF DISPUTED FACTS. . . . . . . . . . . . . . 4

II. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . .4

A.

RHODES V. PIGGLY WIGGLY, 741 F.SUPP. 1542 (1990), BCBS OF

ALA. V. LEWIS, 753 F.SUPP. 345 (1990) AND THE SUPREME COURT

IN GREAT WEST V. KNUDSON, 534 U.S. 204 (2002) ALL AUTHORIZE

JURY TRIAL IN ERISA MATTERS

III. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . 5

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . 6

Case 3:06-cv-00728-MHT-WC Document 74 Filed 08/17/2007 Page 2 of 6
I. INTRODUCTION

The plaintiff in this matter is Owen J. Rogal, D.D.S.,

P.C., d/b/a The Pain Center, a corporation with principal place

of business being located at 501-07 South 12th Street,

Philadelphia, PA 19147. Defendant Skilstaf, Inc. is an Alabama

corporation and insurance provider/plan administrator with its

headquarters and principal place of business located at P.O. Box

729, Alexander City, AL 35011.

This matter commenced in October, 2005 in Philadelphia

County, PA and was removed to federal court for the eastern

district of Pennsylvania on or about November of 2005. This

matter was transferred to the present venue by the Court on June

26, 2006. This matter concerns plaintiff medical provider’s

allegations of non-payment of medical bills by defendant

incurred by patient/insured Dianna Berry. Mrs. Berry executed

an assignment of rights to plaintiff which has been reproduced

in defendant’s Exhibit 3 to its motion for summary judgment.

A. COUNTER STATEMENT OF UNDISPUTED FACTS

1. Plaintiff claims that it is entitled to medical

coverage under defendant’s Group Health Plan regarding

radiofrequency treatment it rendered to patient Dianna Berry and

seeks monetary damages as a result thereof.

2. Defendant’s Plan is covered by ERISA.

3. Plaintiff demanded a trial by jury on December 14,

2005.

Case 3:06-cv-00728-MHT-WC Document 74 Filed 08/17/2007 Page 3 of 6
4. Defendant motions the Court to strike plaintiff’s jury

demand on the eve of trial after failing to do so during the

previous twenty-one (21) months.

B. STATEMENT OF DISPUTED FACTS

1. This Court has allowed jury trial in ERISA cases since

1990. Rhodes v. Piggly Wiggly Ala. Distrib. Co., 741 F.Supp.

1542 (1990); Blue Cross and Blue Shield of Ala. V. Lewis, 735

F.Supp. 345 (1990).

2. The Supreme Court made it quite clear that claims

by participants and beneficiaries under ERISA seeking to

recover money based on violation of the terms of an ERISA

plan are legal rather than equitable in nature. Great West

v. Knudson, 534 U.S. 204 (2002); Sereboff v. MAMSI, 126

S.Ct. 1869 (2006).

3. Great West, Sereboff and the Seventh (7th) Amendment

allow plaintiff the right to jury trial in the instant matter.

II. ARGUMENT

A. PLAINTIFF BEARS THE RIGHT TO JURY TRIAL REGARDING THE

ERISA MATTER HEREIN

In the seminal cases of Rhodes and Lewis, this Court has

spoken regarding the propriety of jury trial in ERISA matters.

As the Rhodes Court stated, “This Court is particularly

persuaded by the following penetrating observation of Chief

Judge Brieant in Vicinanzo: Perhaps because the right to a jury

trial on claims of legal entitlement is so obvious, ERISA makes

no express provisions for jury trials...Now, surrounded by good

company, including the Supreme Court, this court has lost the

timidity it displayed in Whitt and will deny defendant’s motion

to strike plaintiff’s jury demand in this ERISA case. Rhodes v.

Piggly Wiggly Ala. Distrib. Co., 741 F.Supp. 1542 (1990).

Case 3:06-cv-00728-MHT-WC Document 74 Filed 08/17/2007 Page 4 of 6
Likewise, the Lewis Court stated, “It is impossible for

this court to ignore this new direction clearly pointed out by

the Supreme Court. The decision in Ingersoll-Rand requires this

court sua sponte to reconsider and to reverse its ruling of

December 13, 1990, and to reinstate this case to the jury trial

docket”. Blue Cross and Blue Shield of Ala. V. Lewis, 735

F.Supp. 345 (1990).

Finally, the Supreme Court has made it clear that claims by

participants and beneficiaries under ERISA seeking to recover

money based on violation of the terms of an ERISA plan are legal

rather than equitable in nature. Great West v. Knudson, 534

U.S. 204 (2002); see also Sereboff v. MAMSI, 126 S.Ct. 1869

(2006). Given same, the Seventh (7th)Amendment provides plaintiff

the right to jury trial herein.

III. CONCLUSION

In conclusion, for the foregoing reasons, Plaintiff

respectfully requests that this Honorable Court enter the

attached Order Denying Defendant’s Motion to Strike Jury Trial.

Respectfully submitted,

/s/Robert E. Cole______________________

Robert E. Cole, Esquire

Attorney for Plaintiff

Atty. I.D. No. 73263

437 Chestnut Street, Suite 218

Philadelphia, PA 19106

(215) 922-2050

recoleesq6@juno.com

Case 3:06-cv-00728-MHT-WC Document 74 Filed 08/17/2007 Page 5 of 6
IN THE UNITED STATED DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

ROBERT E. COLE Attorney For Plaintiff

ROBERT E. COLE, P.C.

ATTORNEY I.D. NO. 73263

437 CHESTNUT STREET, SUITE 218

PHILADELPHIA, PA 19106

(215) 922-2050

___________________________________

OWEN J. ROGAL, D.D.S., P.C. :

d/b/a THE PAIN CENTER

V. : NO. 3:06cv728-MHT

SKILSTAF, INC. :

CERTIFICATE OF SERVICE

Robert E. Cole, Esquire, attorney for plaintiff, hereby

verifies that on the 17th day of August, 2007, he electronically

filed the foregoing with the Clerk of the Court using the CM/ECF

system, which will send notification of such filing as follows:

Amelia T. Driscoll, Esquire

Bradley Arant et al.

1819 Fifth Avenue North

Birmingham, AL 35203-2104

Robert E. Cole, Esquire, attorney for plaintiff, hereby

verifies that on the 17th day of August, 2007, he served upon

Jeanne L. Bakker, Esquire, attorney for defendant above, a true

and correct copy of the foregoing by first class mail, postage

prepaid to the following address:

Montgomery, McCracken et al.

123 South Broad Street

Philadelphia, PA 19109

 

/s/Robert E. Cole________________

Robert E. Cole, Esquire

Attorney for Plaintiff

Atty. I.D. No. 73263

437 Chestnut Street, Suite 218

Philadelphia, PA 19106

(215) 922-2050

recoleesq6@juno.com

Case 3:06-cv-00728-MHT-WC Document 74 Filed 08/17/2007 Page 6 of 6
IN THE UNITED STATED DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

ROBERT E. COLE Attorney For Plaintiff

ROBERT E. COLE, P.C.

ATTORNEY I.D. NO. 73263

437 CHESTNUT STREET, SUITE 218

PHILADELPHIA, PA 19106

(215) 922-2050

___________________________________

OWEN J. ROGAL, D.D.S., P.C. :

d/b/a THE PAIN CENTER

501-07 SOUTH 12TH STREET

PHILADELPHIA, PA 19147

Plaintiff :

V. : NO. 3:06cv728-MHT

SKILSTAF, INC. :

P.O. BOX 729

ALEXANDER CITY, AL 35011

Defendant :

___________________________________

ORDER

AND NOW, this day of , 2007, upon

consideration of defendant's Motion to Strike Jury Demand and

plaintiff’s Memorandum in Opposition thereto, it is hereby

ORDERED and DECREED that the Motion is DENIED.

BY THE COURT:

_________________________

 J.

Case 3:06-cv-00728-MHT-WC Document 74-2 Filed 08/17/2007 Page 1 of 1