United States Court of Appeals, Tenth Circuit.

“ Defendants assert the Seventh Amendment provides the right to a jury because Plaintiff's complaint sought money damages.
Defendants would have been entitled to a jury at a trial on the merits of Plaintiff's legal claims. But the set-off hearing was not a trial on the merits of these claims. Instead the district court held the hearing following its entry of default for Defendants' willful discovery violations. See Fed. R. Civ. P. 37 (b) (2) . Defendants do not have a constitutional right to a jury trial following entry of default. ”

“ The dispute over the meaning of "40,000 Each Claim" can only add uncertainty to a settlement process where certainty is sought. A declaration on count II might very well affect both parties' settlement strategy. To overturn the district court's ruling would hinder any hope of such a result. Admittedly, some uncertainty remains regarding whether the policy's fraud exclusion will deny Kunkel coverage for any liability he incurs. This alone, however, did not render the district court powerless to resolve a second element of uncertainty. ”

“ In this instance the district court has disposed of each count in the complaint. Thus, we may properly exercise jurisdiction over this appeal.
II. The starting point for our discussion must be the relevant language of the Declaratory Judgment Act: " In a case of actual controversy within its jurisdiction . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought." ”

“ In Allendale, the insurer sought a declaration that if held liable to the insured, it would be entitled to judgment against the tortfeasors. We explained: "The contingent nature of the right or obligation in controversy will not bar a litigant from seeking declaratory relief when the circumstances reveal a need for a present adjudication." Id. at 594; accord Keene Corp. v. Insurance Co. ”

“ Plaintiff originally filed this action in the District of New Jersey and the pendant state claims alleged violations of New Jersey law. Accordingly, New Jersey law, rather than Oklahoma law, governs.
Under New Jersey law, a court may award prejudgment interest in its discretion, and the court's exercise of its discretion will not be disturbed on appeal unless it represents "a manifest denial of justice." Liberty Lincoln-Mercury v. Ford Motor Co., 134 F.3d 557, 574 (3d Cir. 1998) (applying New Jersey law) . A court clearly may award prejudgment interest on tort claims, including fraud claims. ”

“ United States v. Fisher-Otis Co., Inc., 496 F.2d 1146 (10th Cir. 1974) . Because the word "actual" has been construed as providing emphasis rather than definition, the operation of the Act is procedural only. ”