Roth v. Nationstar Mortgage, LLC
Filing
65
OPINION AND ORDER denying 48 Nationstar's Motion to Strike Jury Demand; denying as moot 62 Plaintiff's Motion for Leave to File Sur-Reply. Signed by Judge John E. Steele on 12/29/2016. (KP)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ARLENE ROTH,
Plaintiff,
v.
Case No: 2:15-cv-783-FtM-29MRM
NATIONSTAR MORTGAGE, LLC,
Defendant.
OPINION AND ORDER
This matter comes before the Court on review of Defendant’s
Motion to Strike Jury Demand (Doc. #48) filed on November 4, 2016.
Plaintiff filed a Response (Doc. #56) on December 1, 2016, to which
Defendant filed a Reply on December 15, 2016 (Doc. #61).
For the
reasons stated below, the Motion to Strike is denied.
On August 29, 2016, Arlene Roth (Plaintiff) filed a fivecount Amended Complaint 1 (Doc. #33) against Nationstar Mortgage,
LLC (Nationstar), alleging violations of Section 559.72(9) of the
Florida Consumer Collection Practices Act (FCCPA), Fla. Stat. §
559.55 et seq., Sections 1692e(2)(A), 1692e(10), and 1692f of the
Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et
Although the Court denied (Doc. #20) Nationstar’s Motion to
Dismiss (Doc. #12) Plaintiff’s original complaint (Doc. #1),
Plaintiff subsequently moved (Doc. #32) to amend her complaint to
include a claim for punitive damages, which unopposed request was
granted by the Magistrate Judge (Doc. #35).
1
seq., and a private settlement agreement.
The claims are based on
a communication Nationstar sent Plaintiff on November 18, 2015
(the Informational Statement) (Doc. #33-1, pp. 18-20).
Plaintiff
contends the Informational Statement was sent for the improper
purpose of attempting to collect on a mortgage debt for which
Plaintiff’s personal liability had been discharged in bankruptcy.
Plaintiff also argues that, by mailing the Statement directly to
her, rather than to her attorney, Nationstar materially breached
a settlement agreement from the parties’ previous lawsuit, in which
Plaintiff also alleged improper attempts to collect on the debt.
In
both
the
original
and
amended
complaints,
Plaintiff
included a demand for jury trial on “all issues so triable.”
## 1, ¶ 59; 33, ¶ 59.)
(Doc.
Nationstar did not object to either demand.
To the contrary, Nationstar’s counsel signed the parties’ July 15,
2016 Joint Case Management Report (Doc. #26) “agreeing” to a jury
trial and estimating that trial will last two days.
Accordingly,
the Court’s August 15, 2016 Case Management and Scheduling Order
(Scheduling Order) (Doc. #31) set a jury trial for the April 2017
term.
Nationstar did not object to the Court’s Scheduling Order.
Ten weeks later however, Nationstar filed the instant Motion
seeking to strike the jury trial demand under Rule 39(a)(2) of the
Federal Rules of Civil Procedure. Nationstar argues that Plaintiff
waived her right to a jury trial pursuant to jury-waiver provisions
contained in her mortgage contract (Doc. #48-2) and the parties’
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prior settlement agreement (Doc. #48-4).
Plaintiff opposes the
Motion, arguing that it is untimely under Rule 12(f) and that the
waiver provisions are either unenforceable or do not apply to the
majority of her claims. 2
The Court need not address these arguments.
By failing to
object to Plaintiffs’ jury demands in the original and amended
complaints, and by signing the parties’ Case Management Report
selecting the “jury trial” option, Nationstar consented to a jury
trial and thus waived the right to subsequently invoke the waivers.
See Gulf Bay Capital, Inc. v. Textron Fin. Corp., No. 2:14-CV-209FTM-29CM, 2016 WL 4009942, at *2 (M.D. Fla. July 27, 2016) (holding
that despite plaintiff’s failure to demand jury trial, defendant
consented
to
jury
trial
on
all
claims
by
agreeing
to
jury
designation in joint case management report); see also BMC Indus.,
Inc. v. Barth Indus., Inc., 160 F.3d 1322, 1333 (11th Cir. 1998)
(“Waiver may be implied when a party's actions are inconsistent
with continued retention of the [contractual] right.” (citing
First Pa. Bank, N.A. v. Oreck, 357 So.2d 743, 744 (Fla. 4th DCA
1978))); Burton-Dixie Corp. v. Timothy McCarthy Constr. Co., 436
F.2d 405, 408 (5th Cir. 1971) (“[T]he district court properly
Plaintiff does “concede” that the waiver provision in the
settlement agreement waives her right to a jury on the breach of
contract claim, since it “arises directly out of the Settlement
Agreement.” (Doc. #56, p. 10.) However, as the Court discusses
below, the parties’ Case Management Report supersedes that waiver.
2
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charged the jury that any conduct of the parties inconsistent with
the notion that they treated the arbitration provision in effect
or any conduct that might be reasonably construed as showing that
they
did
not
intend
to
avail
themselves
of
the
arbitration
provision may amount to a waiver.” (citations omitted)).
Rule 39(a)(2) – the Rule under which Nationstar moves to
strike - does not compel a different result here.
That Rule
provides that “when a jury trial has been demanded under Rule 38
. . . .
[t]he trial on all issues so demanded must be by jury
unless . . . .
the court, on motion or on its own, finds that on
some or all of those issues there is no federal right to a jury
trial.”
Fed. R. Civ. P. 39(a)(2).
So, once a jury trial has been
properly demanded (and, as here, any jury-waiver provisions have
themselves been waived), a plaintiff is entitled to proceed before
a jury on all claims for which there is a “federal right to a jury
trial” – that is, claims for “which legal rights are to be
determined in contrast to those in which equitable rights and
remedies are involved.”
(11th Cir. 1985).
Phillips v. Kaplus, 764 F.2d 807, 812
Conversely, as this Court recently observed, “a
party may unilaterally withdraw consent [to a jury trial] by filing
a motion to strike the jury-trial designation” on the basis that
there is no Seventh Amendment right to have a jury try some or all
of the issues.
Gulf Bay, 2016 WL 4009942, at *3 (citing Kramer v.
Banc of Am. Sec., LLC, 355 F.3d 961, 968 (7th Cir. 2004)).
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Nationstar’s Motion does not argue that Plaintiff’s jury
demand is foreclosed under the Seventh Amendment.
Nor will the
Court sua sponte strike the jury demand, since it appears that a
federal right to a jury trial exists for Plaintiff’s claims – all
of which request money damages.
See Borgh v. Gentry, 953 F.2d
1309, 1311 (11th Cir. 1992) (breach of contract claim “is a legal
issue to be tried by a jury” (citation omitted)); Sibley v. Fulton
DeKalb Collection Serv., 677 F.2d 830, 832 (11th Cir. 1982) (right
to a jury trial exists under the FDCPA); cf. Fla. Stat. § 559.77
(stating that when applying and construing the “Civil Remedies”
section of the FCCPA, “due consideration and great weight shall be
given to the interpretations of . . . the federal courts relating
to the federal Fair Debt Collection Practices Act”).
Accordingly,
trial of Plaintiff’s claims will proceed before a jury.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.
Nationstar’s Motion to Strike (Doc. #48) is DENIED.
2.
Plaintiff’s Motion (Doc. #62) seeking leave to file a
sur-reply to the Motion to Strike is DENIED as moot.
DONE and ORDERED at Fort Myers, Florida, this 29th day of
December, 2016.
Copies: Counsel of record
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