Lascoutx v. Wells Fargo Bank, N.A.
ORDER granting 13 Defendant's Motion to Strike Plaintiff's Demand for Jury Trial. Signed by Magistrate Judge Jonathan Goodman on 11/16/2011. (dkc)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 11-21619-CIV-GOODMAN
WELLS FARGO BANK, N.A., as successor
in interest to WACHOVIA BANK, N.A., f/k/a
FIRST UNION N.A. OF FLORIDA,
ORDER GRANTING MOTION TO STRIKE DEMAND FOR JURY TRIAL
This cause is before the Court on Defendant Wells Fargo Bank, N.A.’s Motion to Strike
Demand for Jury Trial. [ECF No. 13]. Plaintiff did not file a response and the time for doing so
has now expired.
For the reasons below, the Court GRANTS Defendant’s motion and
STRIKES Plaintiff’s demand for a jury trial in this case.
This case involves a plaintiff bank depositor who alleges that a former employee of the
defendant bank stole approximately $83,000.00 from his account. Plaintiff is proceeding under
theories of civil theft, conversion, restitution, and negligent supervision, and he demands a jury
trial on the civil theft and negligent supervision claims. [ECF No. 1-1, pp. 7, 9]. Defendant
timely removed this case from the Circuit Court of the Eleventh Judicial Circuit in and for
Miami-Dade County, Florida on May 6, 2011. [ECF No. 1].
Defendant has consistently maintained that Plaintiff is not entitled to a jury trial. [ECF
Nos. 4, p. 4 (answer); 8, p. 2 (joint status report)]. For instance, in its answer, Defendant denied
“that the Plaintiff is entitled to a jury trial.” The parties also listed in their joint status report that
they dispute “whether Plaintiff is entitled to a trial by jury as to some or all of his claims.”
On October 21, 2011, Defendant filed its motion to strike Plaintiff’s jury trial demand.
Defendant contends that Plaintiff “unconditionally waived any right that he may have otherwise
had to have this matter tried by a jury” when he executed the Customer Access Agreement and
thereby became bound by the Deposit Agreement and Disclosures.
[ECF No. 13].
Defendant attached a copy of these documents to his motion as well as an English translation of
the Spanish language Customer Access Agreement. [ECF Nos. 13-1; 13-2].
The Customer Access Agreement provides that a signatory is also bound by the Deposit
Agreement and Disclosures:
[ECF No. 13-2, p. 1].
In turn, the Deposit Agreement provides that it “governs all personal deposit accounts”
and that an account holder waives his right to a jury trial on “any dispute or claim concerning
[the] account.” Specifically:
[ECF No. 13-1, pp. 3, 11].
Defendant contends in his motion that the “provision waiving jury trial is conspicuous
and written in uppercase letters,” that “Plaintiff is a sophisticated customer capable of entering
into a contract for personal banking services,” that “Plaintiff is a journalist and maintains several
bank and investment accounts,” that “Plaintiff was not at an extreme bargaining disadvantage
with Wells Fargo and could have sought another financial institution at which to maintain his
accounts,” and that there is no reason Plaintiff could not have had counsel review the agreement
before he signed it.
[ECF No. 13, p. 4].
Defendant concludes that, in “light of all the
circumstances, it is clear that Plaintiff knowingly, voluntarily, and intelligently assented to [the]
terms of the Deposit Agreement and waiver of jury trial contained therein.”
Defendant indicates in its motion that Plaintiff opposes the striking of his jury demand.
But as noted above, Defendant did not respond to the motion, despite having the opportunity to
do so. There is therefore nothing in the record to contradict Defendant’s characterization of the
circumstances in which the waiver was executed.
a. THE LOCAL RULES
Southern District of Florida Local Rule 7.1(c) states that: “Each party opposing a motion
shall serve an opposing memorandum of law no later than fourteen (14) days after service of the
motion. Failure to do so may be deemed sufficient cause for granting the motion by default.”
b. WAIVER OF THE RIGHT TO A JURY TRIAL IN CIVIL CASES
The Seventh Amendment to the United States Constitution provides: “In Suits at common
law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be
preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United
States, than according to the rules of the common law.” U.S. Const. amend. VII.
Nonetheless, a “‘party may validly waive its Seventh Amendment right to a jury trial so
long as waiver is knowing and voluntary.’” Oglesbee v. Indymac Fin. Servs., Inc., 675 F. Supp.
2d. 1155, 1157 (S.D. Fla. 2009) (quoting Bakrac, Inc. v. Villager Franchise Sys. Inc., 164 F.
App’x 820, 823 (11th Cir. 2006)).
Courts consider the following five factors when determining whether a waiver was
knowing and voluntary:
(1) the conspicuousness of the provision in the contract; (2) the
level of sophistication and experience of the parties entering into
the contract; (3) the opportunity to negotiate terms of the contract;
(4) the relative bargaining power of each party; and (5) whether the
waiving party was represented by counsel. Id. A court can
consider these factors, but they are not determinative.
Collins v. Countrywide Home Loans, Inc., 680 F. Supp. 2d 1287, 1294 (M.D. Fla. 2010) (citing
Allyn v. Western United Life Assur. Co., 347 F. Supp. 2d 1246, 1251 (M.D. Fla.2004)).
Because Plaintiff did not respond to Defendant’s motion to strike, the Court could grant
Defendant’s motion by default. The Court need not grant the motion by default, however, and
will not do so here. The reality is that Defendant made several representations that neatly
correspond to the factors the Court is required to evaluate and, given the lack of a response, there
is nothing in the record to contradict these representations.
For instance, Defendant represented in its motion that the waiver is conspicuous, that
Plaintiff is a sophisticated journalist capable of entering into personal banking contracts, that
Plaintiff was not at an extreme bargaining disadvantage when entering into this agreement, and,
if in fact Plaintiff did not have counsel review the agreement before he signed it, that there is no
reason Plaintiff could not have done so.
None of these allegations are contradicted by the record and the Court is able to verify
independently only the representation regarding conspicuousness.
Therefore, except for
conspicuousness, the Court will accept as true for the purposes of this motion Defendant’s
relevant representations. Cf. S.D. Fla. L. R. 7.5(d) (providing that a moving party’s factual
statements will be taken as true “unless controverted by the opposing party’s statement”);
Oglesbee, 675 F. Supp. 2d at 1158 (noting that a court cannot find that a boilerplate contract was
non-negotiable “absent a showing that the party opposed the jury trial waiver at the time of
signing or that the drafters refused to consider an alternative to the existing provision”).
As to the remaining consideration, the Court finds that the jury trial waiver is
conspicuous. The waiver is not buried inside a lengthy paragraph. It is instead primarily
positioned at the top of a page, is written in all uppercase letters, and is preceded on the same
page with a bolded title, “Arbitration of Disputes/Waiver of Jury Trial and Participation in
Class Actions.” In particular, the all uppercase letter format makes the provision relatively more
noticeable in the agreement because the majority of the agreement is in small font and written
using a standard combination of lower and uppercase letters.
The waiver is also easy to read and is not ambiguous. It clearly and unequivocally states
that both parties to the agreement “WAIV[E] THE RIGHT TO A TRIAL BY JURY.” See
Oglesbee, 675 F. Supp. 2d at 1158 (a waiver is conspicuous if it is clear, easy to read, and set off
in some way from the other text); Milsap v. Cornerstone Residential Mgmt., Inc., No. 05-60033CIV-MARRA/JOHNSON, 2007 WL 965590, at *2 (S.D. Fla. Mar. 28, 2010) (upholding jury
trial waiver in favor of multimillion dollar residential management company against a
cosmetologist single mother where waiver “was just as visible and in the same size font as every
other provision of the contract . . . [and where] [n]o evidence is presented of any extreme
bargaining disadvantage or” that the mother could not have simply walked away from the deal).
The waiver is also similar to the waiver the Eleventh Circuit concluded was conspicuous in Jaffe
v. Bank of America, N.A., 395 F. App’x 583, 586 (11th Cir. 2010) (waiver reading in pertinent
part that “THE PARTIES TO THIS AGREEMENT WAIVE TRIAL BY JURY”).
After a review of the available record materials, the Court concludes that Plaintiff’s
waiver of his right to a trial by jury on his civil theft and negligent supervision claims was
knowing and voluntary. Therefore, Defendant’s motion is GRANTED and the Court STRIKES
Plaintiff’s demand for a jury trial in this case.
DONE and ORDERED, in Chambers, in Miami, Florida, this 16th day of November,
Copies furnished to:
All counsel of record
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