Galle v. Nationstar Mortgage, LLC

Filing 63

ORDER denying Defendant Nationstar Mortgage, LLC's Objection to Order Denying Motion to Strike Jury Demand (Doc. 44 ). Signed by Judge Sheri Polster Chappell on 7/12/2017. (CMC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MARCIA GALLE,
Plaintiff,
v.

Case No: 2:16-cv-407-FtM-38CM

NATIONSTAR MORTGAGE, LLC,
Defendant.
/
OPINION AND ORDER1
This matter comes before the Court on Defendant Nationstar Mortgage, LLC’s
Objection to Order Denying Motion to Strike Jury Demand. (Doc. 44). Plaintiff Marcia
Galle has responded in opposition with supplemental authority. (Doc. 46). Consequently,
this matter is ripe for review.
BACKGROUND
Galle initiated this suit under the Fair Debt Collection Practices Act and the Florida
Consumer Collection Practices Act. (Doc. 1; Doc. 17). In the Complaint and Amended
Complaint, Galle made a demand for a jury trial. Nationstar responded in its answers that
she was not entitled to a jury trial. (Doc. 15; Doc. 22). But before Nationstar filed its
answer to the Amended Complaint, it and Galle represented the case as a jury trial in

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their joint Case Management Report (“CMR”). (Doc. 21). From there, the Court issued
a Case Management and Scheduling Order (“CMSO”) setting this case as a jury trial
before the undersigned. (Doc. 23). Six weeks later, Nationstar moved to strike Galle’s
jury trial for the first time. (Doc. 32). The United States Magistrate Judge denied the
motion because Nationstar (1) waived the right to invoke a jury waiver provision by
selecting the jury trial option in the joint CMR; and (2) failed to expeditiously object to the
CMSO scheduling the case for a jury trial. (Doc. 43). Nationstar now objects to that
decision.2 (Doc. 44).
LEGAL STANDARD
“[A] judge may designate a magistrate judge to hear and determine any pretrial
matter before the court,” subject to exceptions not relevant to this case. 28 U.S.C.
§ 636(b)(1)(A). And Federal Rule of Civil Procedure 72 governs pretrial matters referred
to magistrate judges. Under that rule, a district court reviewing a magistrate judge’s
decision on a non-dispositive issue “must consider timely objections and modify or set
aside any part of the order that is clearly erroneous or is contrary to law.” Fed. R. Civ. P.
72(a); see also Kaiser Aluminum & Chem. Corp. v. Phosphate Eng’g & Const. Co., 153
F.R.D. 686, 687 (M.D. Fla. 1994). Clear error is a highly deferential standard of review.
See Holton v. City of Thomasville Sch. Dist., 425 F.3d 1325, 1351-52 (11th Cir. 2005).
“A finding is clearly erroneous ‘when although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm conviction that a mistake has
been committed.’” Id. Further, an order “is contrary to the law when it fails to apply or

The Magistrate Judge’s order also granted in part and denied in part Galle’s motion to
strike Nationstar’s affirmative defenses. (Doc. 43). Nationstar does not object, however,
to that part of the order. (Doc. 44).
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misapplies relevant statutes, case law, or rules of procedure.” Malibu Media, LLC v. Doe,
923 F. Supp. 2d 1339, 1347 (M.D. Fla. 2013).
DISCUSSION
Nationstar argues the Magistrate Judge’s order is clearly erroneous and contrary
to law for three reasons: (1) the reliance on Roth v. Nationstar Mortg. LLC, No. 2:15-cv783-FtM-29MRM, 2016 WL 7473818 (M.D. Fla. Dec. 29, 2016) was misguided; (2) it
objected to Galle’s demands for a jury trial in its answers; and (3) the jury designation in
the CMR did not constitute a valid waiver.

(Doc. 44).

None of the objections is

persuasive.
The Court is hard-pressed to find the Magistrate Judge’s reliance on Roth to be
clearly erroneous or contrary to the law. It is not lost that Roth was an unfavorable
decision to Nationstar, a defendant in that case, on the same jury demand issue here. In
Roth, the Honorable John E. Steele found that “[b]y failing to object to [p]laintiff’s jury
demands in the original and amended complaints, and by signing the parties’ [CMR]
selecting the ‘jury trial’ option, Nationstar consented to a jury trial and thus waived the
right to subsequently invoke the waivers.” Roth, 2016 WL 7473818, at *2 (citing Gulf Bay
Capital, Inc. v. Textron Fin. Corp., No. 2:14-cv-209-FtM-29CM, 2016 WL 4009942, at *2
(M.D. Fla. July 27, 2016)).

Unsatisfied with his decision, Nationstar moved for

reconsideration presenting the same arguments that it presents to the undersigned here.
Judge Steele rejected those arguments for reasons that this Court finds persuasive and
equally applicable here. See Roth, No. 15-cv-783 (M.D. Fla. Mar. 26, 2017).
What is more, although Nationstar denied Galle’s entitlement to a jury trial in its
answers, it agreed to a jury trial in the CMR and waited six weeks after the CMSO was

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issued to file a motion to strike. Nationstar acted inconsistently with its position on the
jury demand, and Magistrate Judge Mirando did not clearly error or act contrary to the
law in finding it waived its right to enforce the jury waiver. This result is also in step with
the Eleventh Circuit’s position to protect an individual’s Seventh Amendment right to a
jury trial. 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)).
In short, after considering the parties’ arguments, record, and relevant law, the
Court finds the Magistrate Judge’s order is neither clearly erroneous nor contrary to law.
Given the standard by which a court reviews a magistrate judge’s order, the Court can
say with firm conviction that a mistake was not made in the Order.
Accordingly, it is now
ORDERED:
Defendant Nationstar Mortgage, LLC’s Objection to Order Denying Motion to
Strike Jury Demand (Doc. 44) is DENIED.
DONE and ORDERED in Fort Myers, Florida this 12th day of July 2017.

Copies: All Parties of Record

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