Leahy-Fernandez v. Bayview Loan Servicing, LLC

Filing 33

ORDER denying 23 Motion to Strike. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 2/3/2016. (DRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CYNTHIA LEAHY-FERNANDEZ,
Plaintiff,
v.

Case No. 8:15-cv-2380-T-33TGW

BAYVIEW LOAN SERVICING, LLC,
Defendant.
_____________________________/
ORDER
This cause comes before the Court upon consideration of
Defendant Bayview Loan Servicing, LLC’s Motion to Strike Jury
Demand (Doc. # 23), filed on December 16, 2015. Plaintiff
Cynthia Leahy-Fernandez filed a response in opposition on
January 4, 2016. (Doc. # 25). With leave of Court, Bayview
filed a reply. (Doc. ## 27, 28). For the reasons that follow,
the Court denies the Motion.
I.

Background
Bayview is a loan servicing company, and was the servicer

of a mortgage securing a promissory note (the Debt) on real
property owned by Leahy-Fernandez. (Doc. # 1 at ¶¶ 33-34).
The mortgage Leahy-Fernandez signed contained a clause that
read: “Jury Trial Waiver. The Borrower hereby waives any right
to a trial by jury in any action, proceeding, claim, or

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counterclaim, whether in contract or tort, at law or in
equity, arising out of or in any way related to this Security
Instrument or the Note.” (Doc. # 23 at 1). When Bayview began
servicing Leahy-Fernandez’s Debt, she was already in default.
(Doc. # 1 at ¶ 34).
On December 8, 2015, Leahy-Fernandez filed the instant
Complaint in this Court. (Doc. # 1). The Complaint, which
demands trial by jury, alleges Bayview violated the Florida
Consumer Collections Practices Act, Section 559.55 et seq.,
Florida Statutes (FCCPA), Fair Debt Collection Practices Act,
15 U.S.C. § 1962 et seq. (FDCPA), and the Bankruptcy Code.
(Id. at 1). Bayview filed a Motion to Dismiss on December 4,
2015, and the instant Motion to Strike on December 16, 2015.
(Doc. ## 19, 23).
II.

Legal Standard
Federal Rule of Civil Procedure 12(f) states: “[t]he

court may strike from a pleading an insufficient defense or
any

redundant,

immaterial,

impertinent,

or

scandalous

matter.” A court may act under Rule 12(f) either sua sponte
or upon the motion of a party “either before responding to
the pleading or, if a response is not allowed, within 21 days
after being served with the pleading.” Fed. R. Civ. P. 12(f).
“Motions

to

strike

are

considered

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‘drastic’

and

are

disfavored by the courts.” Gyenis v. Scottsdale Ins. Co., No.
8:12-cv-805-T-33AEP, 2013 WL 3013618, at *1 (M.D. Fla. June
14, 2013) (quoting Thompson v. Kindred Nursing Ctrs. E., LLC,
211 F. Supp. 2d 1345, 1348 (M.D. Fla. 2002)).
III. Analysis
As a preliminary matter, the Court notes that Bayview
filed its Motion to Dismiss on December 4, 2015. (Doc. # 19).
Thereafter, on December 16, 2015, Bayview filed the instant
Motion to Strike. (Doc. # 23). Bayview filed its Motion to
Strike pursuant to Rule 39(a)(2), but Rule 39(a)(2) does not
provide that a Court may strike a jury demand. Rather, Rule
39(a)(2) provides, in pertinent part, that “[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.” Because
Rule 39(a)(2) does not provide for striking a jury demand,
the Court construes Bayview’s Motion to Strike as exactly
that: a motion to strike, which is governed by Rule 12(f).
See Murphy v. Cimarron Mortg. Co., No. 8:06-cv-2142-T-24TBM,
2007 WL 294229, at *1 (M.D. Fla. Jan. 29, 2007) (applying
Rule 12(f) to a motion to strike).
Rule 12(f) requires a motion to strike to be filed before
a response to the pleading is filed or, if no response is

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allowed, within 21 days after service of the pleading. Here,
a response was allowed to the pleading at issue, LeahyFernandez’s

Complaint.

Bayview’s

Motion

to

Strike

is

therefore denied as untimely. See Fed. R. Civ. P. 12(f);
Gyenis, 2013 WL 3013618, at *1 (denying motion to strike as
untimely).
Furthermore, the Court also denies Bayview’s motion on
the grounds that the jury-trial waiver cannot be enforced and
that the scope of the jury-trial waiver does not encompass
the present consumer protection action. On these points, the
Court finds Votzke v. Wells Fargo Bank, N.A., No. 8:14-cv2200-27AEP, Doc. 11 (M.D. Fla. Sept. 4, 2014) (unpublished),
persuasive.
In

Votzke,

the

court

addressed

a

nearly

identical

factual situation. There, the plaintiff signed a mortgage
agreement, which contained a jury-trial waiver that stated:
“Jury Trial Waiver. The Borrower hereby waives any right to
a

trial

by

jury

in

any

action,

proceeding,

claim,

or

counterclaim, whether or not in contract or tort, at law or
in equity, arising out of or in any way related to this
Security Instrument or Note.” Id. at 1 n.1. The plaintiff
received a discharge in bankruptcy and, thereafter, brought

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suit against the defendant-mortgagee for violations of the
Telephone Consumer Protection Act and FCCPA. Id.
Upon the motion of the defendant-mortgagee, the court
in Votzke held that, although the mortgage was not invalidated
and was still enforceable against the subject property, the
mortgagee was barred from enforcing the terms of the mortgage
against the plaintiff. Id. at 2. Consequently, the mortgagee
was precluded from enforcing the jury-trial waiver against
the plaintiff. Id. In addition, the court found the jurytrial waiver contained in the mortgage did not arise from or
relate to the plaintiff’s causes of action. Id. at 3.
The waiver clause at issue in this case is identical to
the one at issue in Votzke. (Doc. # 23 at 1). And this Court
must “scrutinize[] with the utmost care” any curtailment of
the Seventh Amendment right to a jury trial. Chauffeurs,
Teamsters, & Helpers, Local No. 391 v. Terry, 494 U.S. 558,
565 (1990). The Court must, as its solemn duty, “jealousy
guard” the right to a jury trial and “indulge every reasonable
presumption against waiver.” Jones v. Bank of Am., N.A., No.
8:12-cv-419-T-33TGW, 2012 WL 3065381, at *1 (M.D. Fla. July
27, 2012) (citing Jacob v. City of New York, 315 U.S. 752,
752 (1942); Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393

5 

(1937); Burns v. Lawther, 53 F.3d 1237, 1240 (11th Cir. 1995))
(internal quotation marks omitted).
A court looks to the language of a clause to determine
whether a claim fits within that clause’s scope. Bahamas Sales
Assoc., LLC v. Byers, 701 F.3d 1335, 1340 (11th Cir. 2012).
As explained by the court, “[a] claim ‘relates to’ a contract
when ‘the dispute occurs as a fairly direct result of the
performance of contractual duties.’ Moreover, the fact that
a dispute could not have arisen but for an agreement does not
mean

that

the

dispute

necessarily

‘relates

to’

that

agreement.” Id. at 1340-41 (internal citations omitted).
Bayview argues that its communications, which LeahyFernandez complains of, were permitted under the mortgage
and, therefore, such communications relate to the mortgage.
(Doc. # 28 at 6). Bayview’s argument is in essence that the
dispute would not have occurred but for its communications,
and its communications would not have occurred but for the
mortgage. However, as the Eleventh Circuit has noted, “the
fact that a dispute could not have arisen but for an agreement
does not mean that the dispute necessarily ‘relates to’ that
agreement.” Bahamas Sales Assoc., 701 F.3d 1335 at 1340-41.
As such, the Court determines that the jury-trial waiver’s

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scope does not encompass the present consumer protection
suit.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Bayview Loan Servicing, LLC’s Motion to Strike Jury
Demand (Doc. # 23) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this 3rd
day of February, 2016.

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