Cadence Bank, N.A. v. 6503 U.S. Highway 301, LLC et al

Filing 236

ORDER: This action will proceed on the Court's February, 2015, trial term as set forth herein. Signed by Judge Virginia M. Hernandez Covington on 10/27/2014. (KNC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CADENCE BANK, N.A.,
Plaintiff,
v.

Case No. 8:13-cv-840-T-33TGW

6503 U.S. HIGHWAY 301, LLC,
ET AL.,
Defendants.
________________________________/
ORDER
This matter comes before the Court pursuant to CrossClaim

Defendants

6503

U.S.

Highway

301,

LLC

and

Morris

Esquenazi’s Brief as to Why this Case Should be Tried Before
a Jury (Doc. # 234), filed on October 21, 2014. Upon due
consideration of 6503 U.S. Highway 301, LLC and Esquenazi’s
Brief, and an independent review of the record, this Court
determines that the trial in this action as to Alami Binani’s
claims will proceed as a non-jury trial, and the trial as to
Anwar Hassan’s claims will proceed as a jury trial.
I.

Background
This

initiated

case
by

began
Cadence

as

a

Bank,

commercial
N.A.,

on

foreclosure
two

action

properties

in

Hillsborough County, Florida owned by 6503 U.S. Highway 301,

LLC.

(Doc.

#

1).

The

underlying

foreclosure

action

was

resolved on April 2, 2014. (Doc. # 170; see Doc. # 171).
During the pendency of the litigation with Cadence,
Binani filed his Counterclaim, Cross-claim, and Third-Party
Complaint (Doc. # 86), and filed an Amended Cross-Claim and
Third-Party Complaint (titled Second Amended Cross-Claim and
Third-Party Complaint), on February 5, 2014, against 6503
U.S.

Highway

301,

LLC,

Morris

Esquenazi,

Nabil

Shihada,

Amanda Shihada, and Hassan (Doc. # 131). Amanda Shihada and
Nabil Shihada filed their Answers on February 27, 2014. (Doc.
# 150). 6503 U.S. Highway 301, LLC and Esquenazi filed their
Answers

on

April

7,

2014

(Doc.

#

173),

and

Hassan,

representing himself pro se, filed his Answer on April 14,
2014 (Doc. # 174).
Contained within Hassan’s Answer was his Third-Party
Counter-Claims and Third-Party Cross-Claims against Binani,
Amanda Shihada, and Esquenazi. (See Id.). Binani filed his
Answer to the Third-Party Counter-Claims on June 27, 2014.1
(Doc. # 202). Amanda Shihada filed her Answer on July 1, 2014.

1

On September 18, 2014, with Hassan’s consent, Count II
of Hassan’s Third-Party Counter-Claims was dismissed as to
Binani only. (Doc. # 220).

2

(Doc. # 206). On July 2, 2014, after this Court granted
Esquenazi an extension of time to file his Answer after the
deadline to do so had passed (Doc. ## 207, 208), Esquenazi
filed his Answer, which contained a timely jury demand (Doc.
# 210).
On October 10, 2014, this Court held a status conference.
(Doc. # 226). At the status conference, this Court discussed
6503

U.S.

Highway

301,

LLC

and

Esquenazi’s

prior

brief

detailing their position as to why this action should proceed
as a jury trial. (Doc. # 216). However, Binani objected to
6503

U.S.

explaining

Highway
that

the

301,

LLC

record

and

Esquenazi’s

demonstrates

that

position,
6503

U.S.

Highway 301, LLC and Esquenazi’s demand was untimely. (Doc.
# 217). In the interest of fairness, given the parties’
conflicting positions, this Court granted 6503 U.S. Highway
301, LLC and Esquenazi the opportunity to file an additional
brief to explain why this case, in its entirety, should be
tried before a jury. 6503 U.S. Highway 301, LLC and Esquenazi
filed their Brief on October 21, 2014. (Doc. # 234).
II.

Discussion
According to the Amended Case Management and Scheduling

Order, this case is currently set for a non-jury trial to
begin in February of 2015. (See Doc. # 212). 6503 U.S. Highway

3

301, LLC and Esquenazi contend however that they timely filed
a demand for jury trial. (Doc. # 234). If the Court disagrees
with their position, then 6503 U.S. Highway 301, LLC and
Esquenazi request that this Court, pursuant to Fed. R. Civ.
P. 39 “order a jury trial on any issue for which a jury trial
might have been demanded.” (Id. at ¶ 21).
To support their position, 6503 U.S. Highway 301, LLC
and Esquenazi set forth the following timeline:
On
October
10,
2013,
Binani
filed
his
[C]ounterclaim against Cadence, Crossclaim against
Esquenazi and [6503 U.S. Highway 301, LLC], and
Third-Party Complaint as to A. Shihada, N. Shihada,
and Hassan.
Thereafter, [6503 U.S. Highway 301, LLC] and
Esquenazi filed a Motion to Dismiss on November 22,
2013.
On February 5, 2014, Binani filed an Amended Third
Party Complaint and Crossclaim.
On February 26, 2014, [6503 U.S Highway 301, LLC]
and Esquenazi filed a Motion to Dismiss Binani’s
Second Amended Cross-Claim.
On March 17, 2014, the Court denied [6503 U.S.
Highway 301, LLC] and Esquenazi’s Motion to
Dismiss.
[6503 U.S. Highway 301, LLC] and Esquenazi filed
their Answer to the Crossclaim on April 7, 2014.

4

Hassan filed his Answer, Affirmative Defenses,
Counterclaim and Third Party Cross-Claim on April
14, 2014.
On May 16, 2014, [6503 U.S. Highway 301, LLC] and
Esquenazi made a demand for jury trial.
The final pleading was not filed until July 2, 2014,
Esquenazi and [6503 U.S. Highway 301, LLC’s]
Answer, Affirmative Defenses, and Jury Demand to
Hassan’s Third-Party Cross-Claim.
(Doc. # 234 at ¶¶ 5-13)(internal citations omitted).
According to 6503 U.S. Highway 301, LLC and Esquenazi,
“While the litigation with Cadence was ongoing, no jury trial
could be demanded as a jury trial is not available in a
commercial foreclosure action where there exists a jury trial
waiver provision as in the present case.” (Id. at ¶ 4). The
Court notes that the underlying action with Cadence was
resolved on April 2, 2014. (Doc. ## 170, 171). Accordingly,
the Court will address whether 6503 U.S. Highway 301, LLC and
Esquenazi made timely demands – after the resolution of the
underlying Cadence action - for a jury trial with respect to
Binani and Hassan’s claims.
A. Binani’s Claims Against 6503 U.S. Highway 301, LLC
and Esquenazi

5

6503 U.S. Highway 301, LLC and Esquenazi claim that their
demand for a jury trial as to Binani’s claims was timely,
pursuant to Fed. R. Civ. P. 38.
Fed. R. Civ. P. 38 states in relevant part:
b) Demand. On any issue triable of right by a jury,
a party may demand a jury trial by:
a. serving the other parties with a written
demand - which may be included in a pleading
- no later than 14 days after the last
pleading directed to the issue is served;
and
b. filing the demand in accordance with Rule
5(d).
c) Specifying Issues. In its demand, a party may
specify the issues that it wishes to have tried
by a jury; otherwise, it is considered to have
demanded a jury trial on all the issues so
triable. If the party has demanded a jury trial
on only some issues, any other party may – within
14 days after being served with the demand or
within a shorter time ordered by the court –
serve a demand for a jury trial on any other or
all factual issues triable by jury.
d) Waiver; Withdrawal. A party waives a jury trial
unless its demand is properly served and filed.
A proper demand may be withdrawn only if the
parties consent.
Fed. R. Civ. P. 38 (b)-(d)(emphasis added).
As the timeline above demonstrates, 6503 U.S. Highway
301, LLC and Esquenazi filed their Answers to Binani’s Amended
Cross-Claim and Third-Party Complaint on April 7, 2014. (Doc.
# 173). At that time, they did not demand a jury trial as to

6

Binani’s claims. Not until May 16, 2014, did 6503 U.S. Highway
301, LLC and Esquenazi file a Demand for Jury Trial, pursuant
to Fed. R. Civ. P. 38. (Doc. # 189). Therefore, the Court
finds that 6503 U.S. Highway 301 LLC and Esquenazi’s demand
for jury trial – as to the issues raised by Binani – was
untimely.
Nonetheless, 6503 U.S. Highway 301, LLC and Esquenazi
argue that Fed. R. Civ. P. 39(b) provides for their requested
relief. (Doc. # 234)(citing Messana v. Maule Indus., Inc., 50
So. 2d 874, 876 (Fla. 1951)(“In promulgating the rule there
was no purpose to deprive anyone of a jury trial, even if
possible. In fact, there was no intent to coerce a litigant
to relinquish his right to trial by jury. When the right is
claimed the court has no alternative. If the claim comes after
the time specified in the rule, the usual discretion is
allowed the trial court in the matter.”)).
According to 6503 U.S. Highway, 301 LLC and Esquenazi,
Binani has asserted multiple claims including
breach of contract and fraud in the inducement,
which generally, are tried by a jury.
Binani would not be prejudiced by having the case
tried before a jury. Cross-Claim Defendants, [6503
U.S. Highway 301, LLC] and Esquenazi, would be
prejudiced as they have made a demand for a jury
trial, and would be denied this basic right by
proceeding on the bench trial docket.

7

Further, [6503 U.S. Highway 301, LLC] and Esquenazi
have unquestionably made a timely demand for jury
trial in their Answer to Hassan’s Third Party
Cross-Claim against these entities. All of the
issues raised by Binani and Hassan are inextricably
intertwined and it would lead to an absurd result
to proceed with a jury trial on the claims brought
by Hassan, but not those by Binani.
The interests of all parties would be preserved by
this Court ordering this cause to be tried by a
jury.
(Doc. # 234 at ¶¶ 22-26).
Pursuant to Fed. R. Civ. P. 39(b), “Issues on which a
jury trial is not properly demanded are to be tried by the
court. But the court may, on motion, order a jury trial on
any issue for which a jury might have been demanded.” See
Fed. R. Civ. P. 39(b)(emphasis added). A party may waive the
right to jury trial by failing to make a timely demand upon
the courts. LaMarca v. Turner, 995 F.2d 1526, 1545 (11th Cir.
1993). A Rule 39(b) motion is necessary to relieve a party
from

waiver;

the

court

cannot

grant

relief

on

its

own

initiative. Swofford v. B&W, Inc., 336 F.2d 406, 409 (5th
Cir. 1964).
Any relief from waiver is left to the sound discretion
of the trial court. Bush v. Allstate, Ins. Co., 425 F.2d 393,
396 (5th Cir. 1970)(“Relief from . . . waiver was then to be
found, if available at all, in an exercise of discretion by

8

the District Court.”). However, “when the discretion of the
court is invoked under Rule 39(b), the court should grant a
jury trial only in the absence of strong and compelling
reasons to the contrary.” Id.; see also Parrott v. Wilson,
707 F.2d 1262, 1267 (11th Cir. 1983)(“when reviewing a lower
court's denial of a belated jury request our cases require
that

appellant

courts

give

considerable

weight

to

the

movant's excuse for failing to make a timely jury request. If
that failure is due to mere inadvertence on the movant's part,
we generally will not reverse the trial court's refusal to
grant a 39(b) motion.”); Rhodes v. Amarillo Hosp. Dist., 654
F.2d 1148, 1154 (5th Cir. 1981)(“It is not an abuse of
discretion by a District Judge to deny a Rule 39(b) motion,
however, when the failure to make a timely demand for a jury
trial results from mere inadvertence on the part of the moving
party.”). Accordingly:
[T]he district courts have broad discretion when
considering Rule 39(b) motions and often freely
grant such motions after considering (1) whether
the case involves issues which are best tried to a
jury; (2) whether granting the motion would result
in a disruption of the court's schedule or that of
the adverse party; (3) the degree of prejudice to
the adverse party; (4) the length of the delay in
having requested a jury trial; and (5) the reason
for the movant's tardiness in requesting a jury
trial.

9

Parrott, 707 F.2d at 1267-68. “The decision by the district
court to grant or deny the motion is therefore reversible .
. . only for an abuse of discretion.” Id. at 1267.
As an initial matter, the Court notes that 6503 U.S.
Highway 301, LLC and Esquenazi have not filed a motion
pursuant to Fed. R. Civ. P. 39(b). Nonetheless, the Court
finds that even if 6503 U.S. Highway 301, LLC and Esquenazi
had filed an appropriate motion, they are not entitled to a
jury trial as to Binani’s claims.
6503 U.S. Highway 301, LLC and Esquenazi have failed to
provide

case

law

demonstrating

that

under

the

present

circumstances they are entitled to a jury trial as to Binani’s
claims. Instead, 6503 U.S. Highway 301, LLC and Esquenazi
argue that “it would lead to an absurd result” to allow
Binani’s claims to be tried by the Court while Hassan’s
claims, which are “inextricably intertwined” to Binani’s
claims, are tried by a jury. (See Doc. # 234). This conclusory
argument,

without

support,

is

not

convincing.

6503

U.S.

Highway 301, LLC and Esquenazi have also failed to establish
that they diligently sought relief – demand for a jury trial
– after the underlying foreclosure action was resolved on
April 2, 2014.

10

Furthermore, as noted by 6503 U.S. Highway 301, LLC and
Esquenazi in their Brief, “Binani asserts this cause should
proceed as a bench trial. A. Shihada and N. Shihada did not
demand a trial by jury as to any of the issues presented.
Hassan did not demand a trial by jury as to any of the issues
presented.” (Doc. # 234 at ¶ 26). Therefore, Binani’s claims
asserted against Amanda Shihada, Nabil Shihada, and Hassan
will be tried by this Court. Thus, having a jury trial for
the Cross-Claims asserted by Binani and a non-jury trial for
the Third-Party Claims against Amanda Shihada, Nabil Shihada,
and Hassan would cause confusion. As a result, this Court
denies 6503 U.S. Highway 301, LLC and Esquenazi’s request for
a jury trial as to Binani’s claims asserted against them.
B. Hassan’s Claims Against Esquenazi
The record reflects that Esquenazi’s demand for a jury
trial as to Hassan’s Third-Party Cross-Claims was timely
filed. Specifically, on July 2, 2014, Esquenazi filed his
Answer and Affirmative Defenses to Hassan’s claims, which
included a jury demand. (Doc. # 210). Therefore, the trial on
Hassan’s claims against Amanda Shihada and Esquenazi will
proceed as a jury trial.

11

III. Conclusion
For the reasons set forth above, the trial currently set
on the Court’s February, 2015, trial term will proceed as
follows:
Cross-Claim
NON-JURY TRIAL

Binani

v. 6503 U.S. Highway 301, LLC
Morris Esquenazi

Third-Party Claims
NON-JURY TRIAL

Binani

Cross-Claim
JURY TRIAL

Hassan

v. Amanda Shihada
Nabil Shihada
Anwar Hassan
v. Amanda Shihada
Morris Esquenazi

Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
This action will proceed on the Court’s February, 2015,
trial term as set forth herein.
DONE and ORDERED in Chambers in Tampa, Florida, this
27th day of October, 2014.

Copies: All Counsel of Record 

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