Gulf Bay Capital, Inc. v. Textron Financial Corporation

Filing 114

OPINION AND ORDER denying 87 motion to correct case management and scheduling order; denying as moot 112 motion to stay. Signed by Judge John E. Steele on 5/20/2016. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
GULF BAY CAPITAL, INC.,
Plaintiff,
v.

Case No: 2:14-cv-209-FtM-29CM

TEXTRON
CORPORATION,

FINANCIAL

Defendant.
OPINION AND ORDER
This matter comes before the Court on defendant's Motion to
Correct Case Management and Scheduling Order (Doc. #87) filed on
April 7, 2016.

Plaintiff filed a Response in Opposition (Doc.

#103) on April 25, 2016, and defendant filed a Reply (Doc. #107)
on May 3, 2016, with leave of Court.

Because the Case Management

and Scheduling Order is accurate, there is nothing to correct and
the motion is denied.

On May 18, 2016, defendant filed a Motion

to Stay Those Pretrial Deadlines Dependent on Whether Trial is a
Jury or Non-Jury Trial (Doc. #112) seeking to stay the requirement
to exchange jury instructions, verdict forms, and voir dire, and
to submit a trial brief until such time as the issue is decided.
This is a state court case which was removed to federal court
on the basis of diversity jurisdiction.

(Doc. #1.)

Neither the

Complaint (Doc. #2) nor the Answer (Doc. #5) contain a demand for
a jury trial.

Nonetheless, the Case Management Report (Doc. #12)

filed on June 2, 2014, and signed by counsel for both parties,

states that the parties agreed to a jury trial, and estimated its
length at five days (Doc. #12, p. 2).

As a result, the June 9,

2014,

Order

Case

Management

and

Scheduling

scheduled the case as a jury trial.

(Doc.

#15,

p.

2)

Defendant now seeks to

“correct” this order because the Intercreditor Agreement waived
the

right

to

trial

by

jury.

Defendant

asks

that

the

Case

Management and Scheduling Order (Doc. #15), and Amended Case
Management

and

Scheduling

Order

(Doc.

#50)

to

the

extent

it

incorporates the prior Scheduling Order, be amended to reflect
that there is no jury demand.
Because the parties jointly agreed to a jury trial in a
document filed with the Court despite the known provision in the
Intercreditor Agreement, the Court finds that a jury trial was
sufficiently asserted.

A written demand for trial by jury is not

limited to the pleadings and is made upon service to the other
party.

Fed. R. Civ. P. 38(b).

Without the consent of all parties

to proceed to a nonjury trial, see Fed. R. Civ. P. 38(d), 39(a)(1),
the Case Management Report contained a clear demand and was signed
by counsel for defendant, see KnightBrook Ins. Co. v. Payless Car
Rental Sys., Inc., 43 F. Supp. 3d 965, 983-84 (D. Ariz. 2014) (the
parties

filed

a

Joint

Case

Management

Report

that

confirmed

defendants’ understanding that no jury trial had been requested
unless plaintiff later requested one, and therefore there was a
clear waiver of defendant’s right to a jury trial).

The Court

will not allow defendant to change its mind or to correct a mistake
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which it has allowed to remain for almost two years.

The motion

is denied.
Defendant does raise a collateral issue in its Reply which is
outside the scope of its motion to correct.

Defendant asserts

that plaintiff has no right to a jury trial because all the claims
are equitable in nature.

This touches on different issues than

mere correction of a scheduling order, including whether all the
claims are equitable in nature, whether this characterization
alone is sufficient to determine a right to a jury trial, and
whether the parties can agree to a jury trial where no such right
would otherwise exist.

None of these matters, and perhaps others,

are properly before the Court.
Accordingly, it is hereby
ORDERED:
1. Defendant's

Motion

to

Correct

Case

Management

and

Scheduling Order (Doc. #87) is DENIED.
2. Defendant’s

Motion

to

Stay

Those

Pretrial

Deadlines

Dependent on Whether Trial is a Jury or Non-Jury Trial
(Doc. #112) is DENIED as moot.
DONE and ORDERED at Fort Myers, Florida, this
of May, 2016.

Copies:

Counsel of Record

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20th

day