Because this action was one triable of right by a jury, the district court did not have the power to declare the jury advisory only. Fed.R.Civ.P. 39(c) does not apply to actions triable of right by a jury. See, e.g., Goodgame v. American Cast Iron Pipe Co., 75 F.3d 1516, 1520 (11th Cir.1996) (post-Landgraf jury-tried case); Thompson v. Parkes, 963 F.2d 885, 888-89 (6th Cir.1992) (where parties agreed and district court ordered matter would be tried as jury case, case must be treated as if right to jury trial existed and district court could not treat jury verdict as advisory and, even if no right to jury trial existed, it would be abuse of discretion to declare jury verdict advisory after verdict is returned); Hildebrand v. Board of Trustees, 607 F.2d 705, 708-09, 711 (6th Cir.1979) (<HOLDING>); AMF Tuboscope, Inc. v. Cunningham, 352 F.2d
holding district court could not declare jury advisory in action triable of right by a jury and even if the district court had discretion to do so it would be abuse of discretion to declare on the eve of trial that case would be tried as nonjury case where district court had approved parties stipulation to try case to jury holding district court could not declare jury advisory in action triable of right by a jury and even if no right to jury trial existed in case it would be abuse of discretion to declare jury advisory after both sides rested but before jury was instructed recognizing the right to waive a jury trial holding that there is both a statutory and a constitutional right to a jury trial under erisa because congress lacks constitutional authority to limit right to a jury holding that district court could not decide after jury returned verdict to treat jury verdict as advisory on issue not triable of right by jury but which was tried by consent of parties to nonadvisory jury