Roth v. Nationstar Mortgage, LLC

Filing 88

OPINION AND ORDER denying Defendant's 68 Motion for Reconsideration of 65 Court's Order Denying 48 Defendant's Motion to Strike Jury Trial. Signed by Judge John E. Steele on 3/26/2017. (KP) Modified on 3/26/2017 (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 Defendant's Motion for
Reconsideration (Doc. #68) filed on January 9, 2017.

Plaintiff

filed a Response in Opposition (Doc. #75) on February 6, 2017.
For the reasons stated below, the Motion is denied.
I.
Defendant

Nationstar

asks

this

Court

to

reconsider

its

December 29, 2016 Order (Doc. #65) denying Nationstar’s opposed
Motion

to

Strike

Plaintiff’s

Jury

Demand

(Docs.

#

48;

56).

Nationstar sought to strike the jury demand because of jury waiver
provisions contained in Plaintiff’s mortgage agreement and a prior
settlement agreement between Plaintiff and Nationstar.

In denying

Nationstar’s Motion to Strike, the Court concluded, sua sponte,
that Nationstar had waived the right to invoke the jury waiver
provisions by selecting the jury trial option in the parties’
signed joint Case Management Report (CMR) (Doc. #26), and further,
by failing to expeditiously object to the Court’s Case Management
and Scheduling Order (Doc. #31) scheduling the case for a jury

trial for the April 2017 term.

(Doc. #65, p. 3.)

Having so

concluded, the Court did not address whether the waiver provisions
were enforceable and encompassed Plaintiff’s claims.
Nationstar now contends that reconsideration is warranted
because: “Nationstar explicitly den[ied] Plaintiff’s alleged right
to a jury trial” in its Answers to Plaintiff’s Complaint and
Amended Complaint; 2) the designation of a case for a jury trial
in a joint case management report does not waive the right to later
object to that designation; and 3) this Court relied on “inapposite
law [that is] contrary to persuasive authority on the subject” in
denying the Motion to Strike.

(Doc. #68, pp. 1-2.)
II.

A non-final order may be revised at any time before the entry
of a final judgment. Fed. R. Civ. P. 54(b). The decision to grant
a motion for reconsideration is within the sound discretion of the
trial

court

discretion.

and

may

be

granted

to

correct

an

abuse

of

Region 8 Forest Serv. Timber Purchasers Council v.

Alcock, 993 F.2d 800, 806 (11th Cir. 1993). “The courts have
delineated three major grounds justifying reconsideration of such
a decision: (1) an intervening change in controlling law; (2) the
availability of new evidence; (3) the need to correct clear error
or

prevent

manifest

injustice.”

Sussman

v.

Salem,

Nielsen, P.A., 153 F.R.D. 689, 694 (M.D. Fla. 1994).

Saxon

&

According

to Nationstar, reconsideration is warranted to correct the Court’s
clear error in denying the Motion to Strike on waiver grounds.

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III.
Even

if

Nationstar’s

Answers

had

“explicitly

denied”

Plaintiff’s right to a jury trial (which they did not 1), the Court
would still find reconsideration unwarranted.

Though true – as

Nationstar points out - that “Rule 39(a)(2) contains no time limit
for the filing of an objection to the demand for a jury trial” and
thus a jury demand may be stricken even days before trial (Doc.
#68, p. 6 (quoting FN Herstal SA v. Clyde Armory Inc., 838 F.3d
1071, 1090 (11th Cir. 2016))), whether to strike a jury demand
still rests within the Court’s sound discretion.

Tracinda Corp.

v. DaimlerChrysler AG, 502 F.3d 212, 226 (3d Cir. 2007); Brown
Jordan Int'l Inc. v. Carmicle, No. 0:14-CV-60629, 2015 WL 11197774,
at *1 (S.D. Fla. Aug. 27, 2015); see also Fed. R. Civ. P 39(a).
The undersigned previously exercised his discretion in favor
of denying Nationstar’s Motion to Strike and finds no clear error
in that decision.

Unlike the defendant in the FN Herstal case,

here, Nationstar has not asserted that Plaintiff lacks a Seventh
Amendment right to proceed before a jury; rather Nationstar argues
only that Plaintiff contractually waived the right to a jury trial.
The distinction is important.

The former scenario typically

1

Unlike in the Action Nissan, Inc. v. Hyundai Motor America Middle
District of Florida case (No. 6:06-cv-01747) that Nationstar
argues is “directly on point,” Nationstar’s Answers (Docs. #21,
37) contain no “objection to jury trial demand” section moving to
strike Plaintiff’s jury trial demand. Rather, Nationstar simply
“denies the allegations of Paragraph 59” of the Complaint (Doc.
#1) and Amended Complaint (Doc. #33), alleging that “Plaintiff is
entitled to and hereby respectfully demands a trial by jury on all
issues so triable.” The majority of the responses in Nationstar’s
Answers are largely identical to this general denial.
- 3 -

manifests later in the litigation process, when claims and remedies
are narrowed, as was the case in FN Herstal.

Id. at 1088-89.

In

contrast, the waiver argument has been available to Nationstar
since the day the Complaint was filed. Nothing prevented Nationstar
from moving to strike Plaintiff’s jury demand sooner, and there
certainly was no reason for Nationstar to agree to a jury trial in
the CMR if Nationstar believed Plaintiff had waived that right. 2
Nor has the Court relied on “inapposite law [that is] contrary
to persuasive authority on the subject” in denying the Motion to
Strike, as Nationstar contends.

The law on which the Court

principally relied was the undersigned’s own recent Opinion and
Order denying, in (pertinent) part, a defendant’s motion to strike
the plaintiff’s jury demand: Gulf Bay Capital, Inc. v. Textron
Fin. Corp., No. 2:14-CV-209-FTM-29CM, 2016 WL 4009942 (M.D. Fla.
July 27, 2016). 3

As relevant here, the Court concluded that even

2

Nationstar cites Matter of Garfinkle, 672 F.2d 1340, 1347 (11th
Cir. 1982) for the proposition that “waiver does not arise from
forbearance for a reasonable time.” In that case, the Eleventh
Circuit actually went on to hold that, while “[a]t an earlier point
in time, appellants may have had the right to object to purchasing
property based on a sale order that was being appealed and the
right to refuse to accept court ordered cancellation of the
leases,” their failure to act sooner “warrant[ed] an inference of
relinquishment of a known right.” Id. at 1348. So too, here.
3

The undersigned also held that, despite having consented to a
jury trial, defendant Textron could unilaterally withdraw that
consent for purely equitable claims, for which there existed no
Seventh Amendment right to a jury trial.
Gulf Bay, 2016 WL
4009942, at *3 (citing Kramer v. Banc of Am. Sec., LLC, 355 F.3d
961, 968 (7th Cir. 2004)).
Shortly thereafter, the Eleventh
Circuit – in FN Herstal – “addressed the propriety of withdrawing
consent to a jury trial when the matters to be tried are purely
equitable” for the first time and ultimately “agree[d] with
Kramer’s reasoning.” 838 F.3d at 1089.
- 4 -

though neither party had demanded a jury trial, the parties’
subsequent agreement to proceed before a jury - as indicated by
the

“jury

trial”

option

selected

in

the

signed

joint

case

management report - was sufficient to establish mutual consent to
a jury trial.

Id. at *2.

Before reaching that conclusion, the

Court reviewed apposite decisions from other district court judges
(having uncovered no Eleventh Circuit decision on the subject),
some of which found that waiver had occurred, and others holding
against waiver.

Ultimately, the Court viewed better-reasoned

those cases finding waiver. 4

Nationstar has presented the Court

with no binding authority compelling a different result under the
facts presented here.
Accordingly, it is hereby
ORDERED:
Nationstar's

Motion

for

Reconsideration

of

Court's

Order

Denying Motion to Strike Jury Trial (Doc. #68) is DENIED.
DONE and ORDERED at Fort Myers, Florida, this 26th day of
March, 2017.

Copies: Counsel of Record

4

This approach to the waiver issue better accords with the
Eleventh Circuit’s protective stance toward a litigant’s right to
proceed before a jury. See Parrott v. Wilson, 707 F.2d 1262, 1267
(11th Cir. 1983) (“In this circuit, the general rule governing
belated jury requests under Rule 39(b) is that the trial court
should grant a jury trial in the absence of strong and compelling
reasons to the contrary.” (citation omitted)).
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