Alliant Tax Credit Fund XVI, Ltd. et al v. Thomasville Community Housing, LLC et al
Filing
57
ORDER AND OPINION granting 33 Plaintiffs' Motion to Strike Jury Demand; denying 34 Plaintiffs' Motion for Summary Judgment; denying 35 Defendants' Motion for Summary Judgment; granting 44 Defendants' Motion for Leave to File Supplemental Pleading; and denying as moot 45 Plaintiffs' Motion to Re-File Statement of Undisputed Facts. Signed by Judge Julie E. Carnes on 1/28/13. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ALLIANT TAX CREDIT FUND XVI,
LTD., ALLIANT TAX CREDIT XVI,
LLC, ALLIANT TAX CREDIT FUND
XI, LTD. and ALLIANT TAX CREDIT
XI, LLC,
Plaintiffs,
CIVIL ACTION NO.
v.
1:11-cv-2234-JEC
THOMASVILLE COMMUNITY HOUSING,
LLC and MUSCOGEE COMMUNITY
HOUSING, LLC,
Defendants.
ORDER & OPINION
This case is before the Court on plaintiffs’ Motion to Strike
Defendants’ Jury Demand [33], plaintiffs’ Motion for Summary Judgment
[34], defendants’ Motion for Summary Judgment [35], defendants’
Motion
for
Leave
to
File
a
Supplemental
Pleading
[44],
and
plaintiffs’ Motion to Re-file their Statement of Undisputed Facts in
Support of Summary Judgment [45].
The Court has reviewed the record and the arguments of the
parties
and,
for
the
reasons
set
out
below,
concludes
that
plaintiffs’ Motion to Strike Defendants’ Jury Demand [33] should be
GRANTED, plaintiffs’ Motion for Summary Judgment [34] should be
AO 72A
(Rev.8/82)
DENIED, defendants’ Motion for Summary Judgment [35] should be
DENIED, defendants’ Motion for Leave to File a Supplemental Pleading
[44] should be GRANTED, and plaintiffs’ Motion to Re-File their
Statement of Undisputed Facts in Support of Summary Judgment [45]
should be DENIED as moot.
BACKGROUND
This
case
arises
out
of
the
alleged
breach
of
limited
partnership agreements (the “Springfield LPA” and the “Windsor LPA”)
executed in connection with the development of low income housing
projects in Thomasville and Muscogee County, Georgia.
[22] at ¶¶ 10-27.)
projects.
(Am. Compl.
The defendant LLCs are the developers of the
(Pls.’s Br. in Supp. of Summ. J. (“Pls.’ Br.”) [34] at 2.)
Plaintiffs are investors in the projects.1
(Am. Compl. [22] at ¶ 9.)
The Springfield LPA created the Springfield Crossing Limited
Partnership (“Springfield LP”) to own and operate the Springfield
Crossing
Apartments
Material
Facts
in
(“DSMF”)
Muscogee
[35]
at
County.
¶¶
1-4.)
(Defs.’
Statement
Defendant
of
Muscogee
Community Housing, LLC (“Muscogee”) is the General Partner of the
1
Plaintiffs are part of a tax credit syndicating enterprise.
(Pls.’ Br. [34] at 1.)
They invested in the projects under the
federal low income housing tax credit and federal tax exempt bond
programs.
(Am. Compl. [22] at ¶ 9.)
Under those programs,
plaintiffs obtain federal income tax credits in exchange for their
investment in low income housing projects that meet federal
guidelines. (Id.)
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Springfield LP.
(Id. at ¶ 2.)
The Windsor LPA created the Windsor
Senior Apartments Limited Partnership (“Windsor LP”) to own and
operate the Windsor Senior Apartments in Thomasville.
(Id. at ¶ 6.)
Defendant Thomasville Community Housing, LLC (“Thomasville”) is the
General Partner of the Windsor LP.
(Id. at ¶ 5.)
Plaintiffs are
Limited Partners of the Springfield LP and the Windsor LP.
(Am.
Compl. [22] at ¶¶ 10-11.)
The Springfield and Windsor LPAs impose specific reporting
duties on defendants.
Summ.
J.
[34]
requirement
at
that
(LPAs at § 13.3, attached to Pls.’ Mot. for
Exs.
2
and
defendants
3.)
provide
Among
a
those
yearly
duties
audited
is
the
financial
statement for each LP, accompanied by the unqualified opinion of a
designated accountant.
(Id. at § 13.3(D).)
In addition, the LPAs
impose more general fiduciary duties upon defendants concerning cash
distributions and the use of partnership funds.
(Id. at Art. 9.)
Plaintiffs allege that defendants breached the above provisions
by, among other things:
statements
for
2008
(1) failing to provide audited financial
and
2009
and
(2)
making
distributions and misallocating partnership funds.
at ¶¶ 12-27.)
improper
cash
(Am. Compl. [22]
In their complaint, plaintiffs request a declaratory
judgment that defendants have committed a “Major Default” of the LPAs
as a result of their breaches, entitling plaintiffs to remove
defendants from their role as General Partners of the Springfield and
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Windsor LPs.
(Id. at ¶¶ 28-33.)
Plaintiffs also seek specific
performance of their contractual right to remove defendants. (Id. at
¶¶ 34-49.)
The parties have filed cross-motions for summary judgment on the
claims asserted by plaintiffs.
(Pls.’ Mot. for Summ. J. [34] and
Defs.’ Mot. for Summ. J. [35].) Both parties have also filed motions
to supplement or resubmit previously filed pleadings.
(Defs.’ Mot.
for Leave to File Supplemental Pleading [44] and Pls.’ Mot. to ReFile Statement of Undisputed Facts [45].)
have
filed
defendants.
a
motion
to
strike
the
jury
In addition, plaintiffs
trial
demand
made
by
(Pls.’ Mot. to Strike Jury Demand [33].)
DISCUSSION
I.
SUMMARY JUDGMENT MOTIONS
A.
Applicable Standard
Summary
judgment
is
appropriate
when
the
pleadings,
the
discovery and disclosure materials on file and any affidavits, show
that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.
56(c).
A fact’s materiality is determined by the controlling
substantive law.
(1986).
FED. R. CIV. P.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
An issue is genuine when the evidence is such that a
reasonable jury could return a verdict for the nonmovant.
249-50.
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Id. at
Summary judgment is not properly viewed as a device that the
trial court may, in its discretion, implement in lieu of a trial on
the merits. Instead, Rule 56 of the Federal Rules of Civil Procedure
mandates the entry of summary judgment against a party who fails to
make a showing sufficient to establish the existence of every element
essential to that party’s case on which that party will bear the
burden of proof at trial.
322 (1986).
Celotex Corp. v. Catrett, 477 U.S. 317,
In such a situation, there can be no genuine issue as to
any material fact, as a complete failure of proof concerning an
essential element of the non-moving party’s case necessarily renders
all other facts immaterial.
Id. at 322-23 (quoting FED. R. CIV. P.
56(c).
The movant bears the initial responsibility of asserting the
basis for his motion.
Id. at 323.
However, the movant is not
required to negate his opponent’s claim.
The movant may discharge
his burden by merely “‘showing’--that is, pointing out to the
district court--that there is an absence of evidence to support the
nonmoving party’s case.”
Id. at 325.
After the movant has carried
his burden, the non-moving party is then required to “go beyond the
pleadings” and present competent evidence designating “specific facts
showing that there is a genuine issue for trial.”
Id. at 324.
While
the court is to view all evidence and factual inferences in a light
most favorable to the non-moving party, Samples v. City of Atlanta,
5
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846 F.2d 1328, 1330 (11th Cir. 1988), “the mere existence of some
alleged factual dispute between the parties will not defeat an
otherwise
properly
supported
motion
for
summary
judgment;
the
requirement is that there be no genuine issue of material fact.”
Anderson, 477 U.S. at 247-48.
B.
Defendants’ Motion
In support of their motion for summary judgment, defendants
argue that (1) the type of relief requested in the complaint is
unavailable in this case and (2) there is no evidence to suggest that
defendants have committed a Major Default that would justify removal
under the LPAs.
at 2, 8-15.)
persuasive.
(Defs.’ Br. in Supp. of Summ. J. (“Defs.’ Br.”) [35]
For the reasons discussed below, neither argument is
Accordingly, the Court DENIES defendants’ motion for
summary judgment [35].
1.
Available Relief
As mentioned, plaintiffs assert claims for a declaration and
specific performance of their contractual right to remove defendants
as General Partners on the ground of a Major Default of the LPAs.
(Am. Compl. [22] at ¶¶ 28-49.)
Defendants argue that declaratory
relief is not available in this case because their alleged breaches
do not create a risk of “future harm.”
(Defs.’ Br. [35] at 9-11.)
Defendants further contend that specific performance:
(1) would
operate as a forfeiture, a result that is disfavored under Georgia
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law and (2) is precluded by the clean hands doctrine.2
(Id. at 14-
15.)
a.
Declaratory Relief
The Declaratory Judgment Act allows a Court to “declare the
rights and other legal relations of any interested party” in a case
of “actual controversy.”
28 U.S.C. § 2201(a).
For purposes of the
Act, an “actual controversy” exists when there is a “‘substantial
continuing
controversy
between
parties
having
adverse
legal
interests.’” Walden v. Ctrs. for Disease Control and Prevention, 669
F.3d 1277, 1284 (11th Cir. 2012)(quoting Emory v. Peeler, 756 F.2d
1547, 1551-52 (11th Cir. 1985)).
To qualify for relief, the dispute
between the parties must be “definite and concrete” and
susceptible
to “specific relief through a decree of a conclusive character.”
MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007).
All of the above requirements are met in this case.
Plaintiffs
allege that defendants committed a Major Default by failing to comply
with their reporting and fiduciary duties under the LPAs.
2
(Am.
The LPAs contain a choice of law provision requiring that they
be governed by the law of the State in which they are to be
performed, in this case Georgia. (LPAs [34] at ¶ 15.1) Accordingly,
Georgia law applies.
See See Grupo Televisa, S.A. v. Telemundo
Commc’ns Grp., Inc., 485 F.3d 1233, 1240 (11th Cir. 2007)(“A federal
court sitting in diversity will apply the conflict-of-laws rules of
the forum state.”) and Kinnick v. Textron Fin. Corp., 205 Ga. App.
429, 430 (1992)(Georgia courts “will normally enforce a contractual
choice of law clause” absent a contrary public policy).
7
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Compl. [22] at ¶¶ 12-27.) Consequently, plaintiffs contend that they
are entitled to exercise their contractual removal rights.
¶¶ 28-49.)
(Id. at
Defendants counter that (1) they have not committed a
Major Default and (2) the removal remedy is not available under the
circumstances.
(Defs.’ Br. [35] at 11-15.)
The parties thus have a
substantial and continuing legal dispute, which can definitively be
resolved by the Court’s ruling.
The “future harm” language cited by defendants is found in
Walden,
669
F.3d
at
1284.
The
plaintiff
in
Walden
sought
a
declaratory judgment that defendants violated her First Amendment
rights when they terminated her employment.
Id.
The Eleventh
Circuit held that such relief was not available because the plaintiff
failed to allege that her First Amendment rights “continue to be
burdened or are likely to be burdened in the future.”
Id.
The
Walden decision did not import a “future harm” standard into the
Declaratory Judgment Act.
Id.
Rather, the decision simply applied
the preexisting “continuing controversy” requirement.
Id.
Unlike the plaintiff in Walden, plaintiffs here claim that
defendants continue to ignore their contractual removal rights. (Am.
Compl. [22] at ¶¶ 16-17, 24-25.)
prior
to
filing
this
suit
that
Plaintiffs informed defendants
a
Major
Default
had
occurred,
triggering their right to remove defendants under the LPAs.
(Id.)
Defendants refused, and continue to refuse, to exit the LPs.
(Id.)
8
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Courts routinely consider claims for declaratory relief under similar
circumstances.
1402,
1406
See Walter Int’l Prod., Inc. v. Salinas, 650 F.3d
(11th
Cir.
2011)(upholding
the
district
court’s
declaration of a party’s contractual right to inspect accounting
books) and Am. Ins. Co. v. Evercare Co., 430 Fed. App’x 795, 799
(11th
Cir.
2011)(resolving
an
insurance
coverage
dispute
by
declaratory judgment).
b.
The
LPAs
Specific Performance
expressly
give
plaintiffs
the
right
to
remove
defendants as General Partners in the event of a Major Default.
(LPAs [34] at ¶ 11.4.)
Georgia law requires the enforcement of the
LPAs in accordance with their terms.
See Kochis v. Mills, 233 Ga.
652, 653 (1975)(“[p]artners generally . . . may make any agreement
between themselves that they deem desirable”) and Hendry v. Wells,
286 Ga. App. 774, 780 (2007)(“plaintiffs were on notice of and bound
by the terms of the Partnership Agreement from the day of the
investment”).
This rule has been applied to removal provisions
similar to the one at issue in this case, in spite of the risk of
forfeiture.
See Lesesne v. Mast Prop. Mgmt., Inc., 251 Ga. 550, 552
(1983)(permitting the removal of a general partner “for whatever
reason” in accordance with the partnership agreement) and Heard v.
Carter, 159 Ga. App. 801, 802 (1981)(upholding the expulsion of
defendants
from
a
partnership
pursuant
9
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to
the
terms
of
the
partnership agreement).
specifically
accordance
Indeed, Georgia’s Limited Partnership Act
contemplates
with
the
the
removal
partnership
of
general
agreement.”
partners
O.C.G.A.
§
“in
14-9-
602(a)(3).
As to the clean hands argument, that doctrine requires that
“[h]e who would have equity must do equity.”
Partner, Inc., 279 Ga. App. 268, 273 (2006).
Park v. Fortune
Defendants insinuate
that plaintiffs have acted inequitably by engaging in a conspiracy to
deprive defendants of their interest in the Springfield and Windsor
LPs.
(Defs.’ Br. [35] at 14-15.)
However, defendants do not cite
any evidence to support their conspiracy theory.
certainly
do
not
offer
the
undisputed
evidence
(Id.)
that
sufficient to sustain summary judgment on this ground.
2.
They
would
be
(Id.)
Evidence of a Breach
Addressing the merits of the case, defendants argue in their
motion that there is insufficient evidence to suggest that defendants
committed a Major Default that would justify removal.
14.)
(Id. at 11-
Pursuant to the LPAs, a Major Default warranting removal is
deemed to occur when the General Partners are “in material breach of
any material provision . . . of [the LPAs] . . . for sixty (60) days
after notice thereof.”
(LPAs [34] at § 11.4(A)(i)(c).)
Plaintiffs
gave notice to defendants of an alleged material breach with regard
to the 2008 and 2009 financial statements in August, 2010.
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(Pl.’s
Br. [34] at 4.)
Plaintiffs gave notice of additional breaches,
including improper cash distributions, in the amended complaint that
they filed in December, 2011.
(Am. Compl. [22] at ¶¶ 19, 27.)
Contrary to defendants’ argument, there is substantial evidence
to support a finding of a Major Default concerning the 2008 and 2009
financial statements.
send
plaintiffs
As mentioned, the LPAs require defendants to
yearly
financial
statements
accompanied
unqualified audit opinion of a designated accountant.
§ 13.3(D).)
Group.
by
the
(LPAs [34] at
The accountant designated by the LPAs is the Reznick
(Defs.’ Br. [35] at 6.)
Defendants concede that they did not
provide financial statements that were audited by the Reznick Group
for 2008 and 2009.
(Id.)
Nevertheless, defendants contend that they materially complied
with § 13.3(D) of the LPAs by providing financial statements that
were audited by the accounting firm Cone & Smith.
(Id.)
There is
evidence to support defendants’ claim to have sent the Cone & Smith
audited financials for 2008 and 2009.
(Murphy Aff. [35] at ¶¶ 8, 18-
20 and Murphy Dep. at 88-89, 115-117.) However, the evidence on this
issue is disputed.
Plaintiffs claim that they did not receive any
audited
statements
financial
until
after
this
litigation
was
initiated, and they note the absence of any transmission documents to
suggest that the financials were sent earlier.
5-7.)
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(Pls.’ Resp. [41] at
Even
assuming
defendants
sent
the
Cone
&
Smith
financial
statements, it is unclear whether those statements materially comply
with § 13.3(D) of the LPAs.
As noted, § 13.3(D) requires that
defendants provide financial statements that have been audited by the
designated accountant, in this case the Reznick Group. (LPAs [34] at
Art. 1 and § 13.3(D).)
Defendants are authorized by the LPAs to hire
a different accountant with plaintiffs’ consent, “which shall not be
unreasonably withheld.”
(Id. at Art. 1.)
The evidence shows that
defendants obtained consent to use Cone & Smith to conduct the 2008
audit on January 7, 2009, but that plaintiffs withdrew their consent
the following day.
(PSMF [34] at ¶ 13.)
The parties dispute whether
the withdrawal was valid and reasonable under the LPAs.
[35] at 6 and Pls.’ Resp. [41] at 7-10.)
(Defs.’ Br.
Assuming an effective
withdrawal, defendants will have materially violated § 13.3(D) by
their failure to provide audited financial statements for 2008 and
2009 from a qualified accountant.
In making the above observation, the Court necessarily rejects
defendants’ argument that § 13.3(D) is not a material provision of
the LPAs.
provide
(Defs.’ Br. [35] at 13.)
audited
yearly
financial
The requirement that defendants
statements
is
essential
to
plaintiffs’ ability to monitor their substantial investment in the
Springfield and Windsor LPs.
The Court likewise rejects defendants’
argument that their breach of § 13.3(D) was not material because
12
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plaintiffs suffered no harm.
(Id.)
Plaintiffs have produced
evidence that they were in fact harmed by the alleged breach. (Pls.’
Resp. [41] at 12.)
In any event, the LPAs do not require harm or
actual damages as a condition precedent to finding a “material
breach.”
(LPAs [34] at § 11.4(A)(i)(c).)
There is additional evidence to support plaintiffs’ claim that
defendants committed other material breaches of the LPA, any one of
which might have resulted in a Major Default.
12-15.)
(Pls.’ Resp. [41] at
In particular, plaintiffs have produced evidence, albeit
inconclusive, that defendants overpaid themselves and underpaid
plaintiffs approximately $90,000 between 2008 and 2010. (Id. at 15.)
Defendants deny any impropriety, but their denial is insufficient to
sustain a motion for summary judgment.
In short, and having reviewed all of the evidence in the record,
the Court concludes that summary judgment in favor of defendants is
not
warranted.
With
regard
to
the
2008
and
2009
financial
statements, which are the main point of contention in the case, the
factfinder must consider: (1) whether plaintiffs approved the change
in the designated accountant from Reznick to Cone & Smith or whether
their approval was unreasonably withheld, and (2) whether defendants
provided financial statements from Cone & Smith that materially
complied with § 13.3(D) of the LPAs.
consider
whether
defendants
misallocated
13
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Likewise, the factfinder must
or
made
unauthorized
distributions of partnership assets.
Those facts will determine
whether defendants committed a Major Default that justifies removal.
C.
Plaintiffs’ Motion
Plaintiffs
acknowledge
that
there
are
questions
of
fact
concerning most of defendants’ alleged violations of the LPAs.
(Pls.’ Br. [34] at 5.)
limited
to
Plaintiffs’ motion for summary judgment is
defendants’
failure
statements for 2008 and 2009.
this issue is in dispute.
to
(Id.)
provide
audited
financial
As discussed, the evidence on
Defendants claim that they provided
audited statements from Cone & Smith that materially complied with
their reporting requirements under the LPAs.
(Defs.’ Br. [35] at 4,
6-7 and Defs.’ Resp. [42] at 2-3, 5-8.) There is sufficient evidence
to
raise
a
material
issue
of
fact
as
to
that
claim.
(Id.)
Accordingly, plaintiffs’ motion for summary judgment [34] is DENIED.
II.
MOTIONS TO FILE SUPPLEMENTAL MATERIALS
A.
Plaintiffs’ Motion To Re-File
As a preliminary objection to plaintiffs’ motion for summary
judgment, defendants asserted that plaintiffs had failed to file a
separate statement of facts as required by Local Rule 56.1.
Resp. [42] at 1.)
(Defs.’
In spite of the minor technical deficiency, the
Court finds that plaintiffs materially complied with Local Rule 56.1
in their original motion.
Although plaintiffs’ facts were not set
forth in a separate document, they were clearly delineated in a
14
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separate section of plaintiffs’ brief.
(Pls.’ Br. [34] 6-16.)
Each
fact was numbered and supported by specific citations to the record.
(Id.)
Defendants were able to respond to each fact, and the Court
did not find the statement to be confusing or misleading.
Resp. to PSMF [43].)
(Defs.’
Accordingly, the Court finds that refiling is
unnecessary and DENIES plaintiffs’ motion [45] as moot.
B.
Defendants’ Motion To Supplement
In their motion to supplement, defendants seek permission to add
a
counterclaim
for
attorney’s
Supplemental Pleading [44].)
fees.
(Defs.’
Mot.
to
File
The LPAs provide that the “prevailing
party” in any litigation concerning the agreements is entitled to
recover attorney’s fees.
(Id. at 1.)
Defendants claim that they
have become convinced through discovery and the summary judgment
motions that they will be the “prevailing part[ies].”
(Id. at 2.)
Thus, they assert their motion under Federal Rule 13(e), which allows
supplemental pleading of a counterclaim that “matured” after the
original claim was filed.
(Id.)
Defendants’ characterization of their claim for attorney’s fees
as having “matured” by virtue of recent developments in the case is
inaccurate.
Given the Court’s rulings on summary judgment, it is no
more apparent now than it was when defendants filed their initial
counterclaim
litigation.
whether
defendants
ultimately
prevail
in
the
Accordingly, the Court will treat defendants’ motion as
15
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will
a
motion
to
amend
under
Rule
15(a),
rather
than
a
motion
to
supplement under Rule 13(e).
Federal Rule 15(a) provides that leave to amend shall be “freely
give[n] . . . when justice so requires.”
FED. R. CIV. P. 15(a)(2).
Courts therefore generally grant leave unless there is a substantial
reason to deny it.
Garfield v. NDC Health Corp., 466 F.3d 1255, 1270
(11th Cir. 2006)(“‘In the absence of any apparent or declared reason
. . . the leave sought should, as the rules require, be freely
given.’”)(quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).
Denial
of a motion to amend is an abuse of discretion in the absence of some
factor to justify the decision, such as “undue delay, undue prejudice
to the defendants, [or] futility.”
Carruthers v. BSA Adver., Inc.,
357 F.3d 1213, 1218 (11th Cir. 2004).
Assuming they are ultimately determined to the “prevailing
parties” in this litigation, defendants have a right to recover
attorney’s fees under the LPAs.
(LPAs [34] at § 15.1.)
Plaintiffs
will not suffer any undue delay or prejudice by allowing defendants
to assert such a claim at this juncture, as the claim does not
require
any
additional
discovery.
Moreover,
disallowing
the
amendment would raise the risk of a second lawsuit over attorney’s
fees at the conclusion of this case.
Accordingly, the Court finds
that defendants’ motion to supplement their counterclaim [44] to add
a claim for attorney’s fees should be GRANTED.
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III. PLAINTIFFS’ MOTION TO STRIKE JURY DEMAND
In addition to the above motions, plaintiffs have filed a motion
to strike the jury demand made by defendants in this case.
Mot. to Strike Jury Demand [33].)
(Pls.’
According to plaintiffs, the jury
demand is improper because the relief sought in this case is solely
of an equitable nature.
(Id. at 1.)
The Court agrees.
There generally is no federal right to a jury trial in cases
involving only equitable relief.
Brown v. Alabama Dep’t of Transp.,
597 F.3d 1160, 1184 (11th Cir. 2010).
Purely equitable claims, even
those involving factual disputes, are properly resolved by the Court
rather than a jury.
Ford v. Citizens & S. Nat’l Bank, 928 F.2d 1118,
1121-22 (11th Cir. 1991)(the right to have a jury determine issues of
fact depends on whether “the claim to which those issues relate is
legal or equitable”).
Plaintiffs seek only a declaration and
specific performance of their right to remove defendants as General
Partners.
in nature.
(Am. Compl. [22] at ¶¶ 28-49.)
Both claims are equitable
Id. at 1122 (a claim for specific performance is an
equitable action).
See also Jetha v. BH & RMC, LLC, No. 8:08-CV-402-
T-24TBM, 2008 WL 1897593, at *1 (M.D. Fla. Apr. 28, 2008)(Bucklew,
J.)(describing the removal of a general partner as equitable relief).
Defendants acknowledge that there is no right to a jury trial
where only equitable relief is sought.
to Strike [37] at 2.)
They also concede that plaintiffs are only
17
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(Defs.’ Resp. to Pls.’ Mot.
seeking equitable relief, although they suggest that their removal as
General
Partners
plaintiffs.
(Id.)
would
result
in
substantial
monetary
gain
to
Defendants cite no authority finding a right to
a jury trial under the circumstances, and the Court has found none.
Accordingly, as plaintiffs seek only equitable relief in this case,
their motion to strike defendants’ jury demand [33] is GRANTED.
The
remaining factual issues in the case will be resolved by the Court
following a bench trial.
CONCLUSION
For the foregoing reasons, the Court GRANTS plaintiffs’ Motion
to Strike Jury Demand [33], DENIES plaintiffs’ Motion for Summary
Judgment [34], DENIES defendants’ Motion for Summary Judgment [35],
GRANTS defendants’ Motion for Leave to File Supplemental Pleading
[44],
and
DENIES
as
moot
plaintiffs’
Motion
to
Re-File
their
Statement of Undisputed Facts in Support of Summary Judgment [45].
SO ORDERED, this 28th day of January, 2013.
/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE
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AO 72A
(Rev.8/82)
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