Regions Bank v. Kaplan et al

Filing 298

ORDER denying as moot 261 Motion for Leave to File Reply as moot; granting 177 Motion to Strike 175 Jury demand. Signed by Judge Elizabeth A. Kovachevich on 9/29/2014. (JM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
REGIONS BANK, etc.,
Plaintiff,
v.

CASE NO. 8:12-CV-1837-T-17MAP

MARVIN I. KAPLAN, etc.,
et al.,
Defendants.
______________________/

ORDER
This cause is before the Court on:
Dkt. 177
Dkt. 184
Dkt. 192
Dkt. 197
Dkt. 247
Dkt. 251
Dkt. 252
Dkt. 261

Motion to Strike Jury Demand
Notice - Redacted Exhibit
Response
Clarified Amended Response
Order Granting Leave for Reply
Reply
Notice of Filing Declaration
Motion for Leave to Reply

Plaintiff/Counter-Defendant Regions Bank and Cross-Defendant Shaw move to
strike the jury demand of Counter-Plaintiff/Cross-Plaintiff Kaplan Parties (Kaplan, R1A,
TNE, MKI, BNK).

The Kaplan Parties oppose the Motion.

The Court denied the Motion to Dismiss Count XXIII of the Amended
Counterclaim/Crossclaim (Dkt. 93). The Court granted the Motion to Dismiss as to
Count XXI, Defamation, as to Regions Bank and Shaw, and Count XXII, Invasion of

Case No. 8:12-CV-1837-T-17MAP
Privacy, as to Regions Bank and Shaw. See Order, pp. 33- 34 (Dkt. 244). Regions
Bank has filed a Second Amended Complaint (Dkt. 190). A copy of the Deposit
Agreement (Dkt. 190-1) is attached to the Second Amended Complaint. The signatures
of Marvin I. Kaplan and Kathryn A. Kaplan appear on a signature card for MKI dated
September 12, 2011 (Dkt. 2-1). The signature card states:

By signing, I acknowledge receiving and agree to each and every
term, condition and provision of the Deposit Agreement (including,
without limitation, the ARBITRATION AND WAIVER OF JURY TRIAL
provisions thereof...
Counter-Plaintiff/Cross-Plaintiff Kaplan opened four corporate deposit accounts with
Regions. The TNE Account and MKI Account were opened in September, 2011; the
BNK Account was opened in October, 2011 and the R1A Account was opened in
December, 2011. (Dkt. 190, pars. 17-20). The same Deposit Agreement applies to
those accounts. (Dkt. 190, par. 22).

Regions has not produced a signature card for the BNK account, but has
produced a ratification. Regions has not produced a signature card for the TNE
account, but states it was opened the same day as the MKI account, September 12,
2011 (Dkt. 252).

Defendants/Counter-Plaintiffs/Cross-Plaintiffs have sought leave to reply to the
Reply and Declaration of Regions Bank; at this stage, the Court will rely of the
allegations of the Second Amended Complaint and the attached Deposit Agreement.
The Court therefore will deny the Motion for Leave to File Reply as moot.

I.

Controlling Law

Plaintiff/Counter-Defendant Regions and Cross-Defendant Shaw argue that

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Case No. 8:12-CV-1837-T-17MAP
federal law controls the right to a jury trial in federal courts, and the enforcement of
contractual waivers, even if state substantive law applies to the dispute.

Ford v.

Citizens & Southern National Bank Cartersville, 928 F.2d 1118, 1121 (11th Cir. 1991);
Allyn v. Western United Life Assurance Co., 3476 F.Supp.2d 1246, 1251 (M.D. Fla.
2004).

The Kaplan Parties respond that state law governs whether CounterPlaintiffs/Cross-Plaintiffs Kaplan Parties waived their right to a jury trial.

The Court will rely on federal law; however, the Court notes that under Florida
law, contractual waiver of the right to a jury trial is enforceable and will be upheld.
Credit Alliance Corp. v. Westland Mach. Corp., 439 So.2d 332, 333 (Fla. 3d DCA 1983);
Gelco Corp. v. Campanile Motor Svc., Inc., 677 So.2d 952 (Fla. 3d DCA 1996); Fotomat
Corp. of Fla. v. Chanda, 464 So.2d 626, 631 (Fla. 5th DCA 1985).

II. Corporate Defendants

Plaintiff/Counter-Defendant Regions Bank argues that the provisions of the
Deposit Agreement are enforceable even where the customer does not sign the Deposit
Agreement; the use of a deposit account, among other acts, constitutes the customer’s
assent to the Deposit Agreement. (Dkt. 190-1, p. 8, “Acceptance of This Agreement”).

Counter-Plaintiffs/Cross-Plaintiffs Kaplan Parties argue that there is no evidence
that each party agreed to the jury trial waiver. The Kaplan Parties dispute that they
received the Deposit Agreement.

The Deposit Agreement broadly defines “you” and “customer” as any person
operating the particular deposit account, and extends the waiver of jury trial in favor of
Regions’ employees. It is undisputed that Defendant/Counter-Plaintiff/Cross-Plaintiff
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Case No. 8:12-CV-1837-T-17MAP
Kaplan was an owner and managing member of R1A, TNE, MKI and BNK, and each
corporate Defendant/Counter-Plaintiff/Cross-Plaintiff used an account at Regions Bank.
III. Waiver of Jury Trial

A party may validly waive its Seventh Amendment right to a jury trial so long as
the waiver is knowing, intelligent and voluntary. Bakrac, Inc. v. Villager Franchise
Systems, Inc., 1654 Fed. Appx. 820, 823-824 (11th Cir. 2006)(citing Brookhart v. Janis,
384 U.S.1, 4-5 (1966); Leasing Service Corp. v. Crane, 804 F.2d 828, 833 (4th Cir.
1986)). See also Gulati v. Countrywide Home Loans, Inc., 2006 WL 6300891 (M.D. Fla.
2006). In making the assessment, courts consider the conspicuousness of the waiver
provision; the parties’ relative bargaining power, the sophistication of the party
challenging the waiver, whether the terms of the contract were negotiable, and whether
the waiving party was represented by counsel or had the opportunity to obtain counsel.
The Court reviews all factors to determine whether the waiver is unconscionable,
contrary to public policy, or unfair.

The Deposit Account contains multiple conspicuous statements as to waiver of
jury trial. The Court finds the statements to be conspicuous where the statements are in
bold-faced type; some statements are in bold-faced capital letters in a separate box.
The Deposit Agreement includes detailed terms as to arbitration, but also states in clear
and unambiguous language that the waiver of jury trial applies even if the dispute is not
determined at arbitration:

Whether any controversy is arbitrated or settled by a court, you and
we voluntarily and knowingly waive any right to a jury trial with
respect to such controversy to the fullest extent allowed by law.
(Dkt. 190-1, p. 12). The above statement is not as conspicuous as those set in a
separate box, but it is in a separate paragraph and is not hidden in a footnote.

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Case No. 8:12-CV-1837-T-17MAP
It is undisputed that Defendant/Counter-Plaintiff/Cross-Plaintiff Kaplan is a
sophisticated businessman. The terms of the Deposit Agreement are not negotiable,
but the Kaplan Parties were not obliged to open accounts at Regions Bank. There is no
allegation that the Kaplan Parties were denied an opportunity to consult counsel, if they
wished to do so.

After consideration, the Court finds that the waiver of jury trial was knowing and
voluntary, and therefore grants the Motion to Strike Jury Demand as to all claims and
counterclaims between Regions Bank and the Kaplan Parties, including
counterclaims/crossclaims asserted by the Kaplan Parties against Regions Bank and its
employees. Accordingly, it is

ORDERED that the Motion to Strike Kaplan Parties’ Renewed Jury Demand (Dkt.
177) is granted; the Motion for Leave to File Reply (Dkt. 261) is denied as moot.

DONE and ORDERED in Chambers, in Tampa, Florida on this 29th day of
September, 2014.

Copies to:
All parties and counsel of record

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