Goldberg v. 401 North Wabash Venture LLC et al

Filing 202

MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 3/11/2013:Mailed notice(kef, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JACQUELINE GOLDBERG,
Plaintiff,
v.
401 NORTH WABASH VENTURE LLC and
TRUMP CHICAGO MANAGING
MEMBER LLC,
Defendants.

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Case No. 09 C 6455

MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:
On October 16, 2012, the Court granted summary judgment in favor of Defendants 401
North Wabash Venture LLC and Trump Chicago Managing Member LLC (collectively, the
“Trump Defendants”) on Count IV of Plaintiff Jacqueline Goldberg’s (“Goldberg”) Amended
Complaint. (R. 169.) The Court denied summary judgment as to Count I – violations of the
Illinois Condominium Property Act (the “Condominium Act”); Count II – violations of the
Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”); Count III – violations
of the Federal Interstate Land Sales Full Disclosure Act (“Interstate Land Sales Act”); and Count
V – Breach of Contract. (R. 48, Amend. Compl.) The Court set the case for trial on May 13,
2013. (R. 174.) The Trump Defendants now move to strike Goldberg’s demand for a jury trial,
arguing that Goldberg is not entitled to a jury trial based on the relief she seeks under these
counts. (R. 190, Mot.) For the following reasons the Court grants the motion as to Count I, but
denies it as to the remaining counts.

BACKGROUND
This action arises out of a dispute over the sale of two hotel condominium units in the
Trump International Hotel and Tower in Chicago, Illinois. Goldberg “claims that the Trump
defendants unlawfully lured her into signing Purchase Agreements by misrepresenting that [hotel
condominium units] included the ownership and control of [] condominium common elements
the hotel property and business operations, such as the ball rooms and food beverage operation.”
(R. 178, Pl.’s Resp. at 1.) The Court presumes familiarity with the factual and procedural
background of this litigation, and incorporates herein by reference the background information
set forth in the Court’s written opinions dated August 24, 2012 (R. 160) and October 15, 2012
(R. 170).
LEGAL STANDARD
“The right to a jury trial in federal court hinges on federal procedural law.” Dexia Credit
Local v. Rogan, 629 F.3d 612, 625 (7th Cir. 2010) (citing Int’l Fin. Servs. Corp. v. Chromas
Techs. Canada, Inc., 356 F.3d 731, 735 (7th Cir. 2004)). Federal Rule of Civil Procedure 38(a)
preserves a party’s right to a jury trial as provided by the Seventh Amendment to the
Constitution or as otherwise provided by federal statute. Id; see also Fed. R. Civ. P. 38(a) (“The
right of trial by jury as declared by the Seventh Amendment to the Constitution-or as provided
by a federal statute-is preserved to the parties inviolate.”) The Seventh Amendment provides
that “[i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the
right of trial by jury shall be preserved . . ..” U.S. Const., Amdt. 7. To determine whether a
particular action will resolve legal rights and thus give rise to a jury trial right, the Court must
examine both the nature of the claim for relief and the remedy sought. Id. (citing Marseilles

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Hydro Power, LLC v. Marseilles Land & Water Co., 299 F.3d 643, 648 (7th Cir. 2002)).
Specifically, the Seventh Circuit employs a two-part test. Id. First, the Court must “compare the
. . . action to 18th-century actions brought in the courts of England prior to the merger of the
courts of law and equity. Second, [the Court must] examine the remedy sought and determine
whether it is legal or equitable in nature.” Id; see also Tull v. U.S., 481 U.S. 412, 417-18, 107 S.
Ct. 1831, 1835, 95 L. Ed. 2d 365 (1987). The second inquiry, regarding the nature of the remedy
sought, is more important than the search for an 18th Century analogue. Id; see also Chauffeurs,
Teamsters & Helpers Local No. 391 v. Terry, 494 U.S. 558, 565, 110 S. Ct. 1339, 108 L. Ed. 2d
519 (1990); Marseilles, 299 F.3d at 648.
Federal Rule of Civil Procedure 12(f) provides that a district court “may strike from a
pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter.” Fed. R. Civ. P.12(f); see also Delta Consulting Grp., Inc. v. R. Randle Const., Inc., 554
F.3d 1133, 1141 (7th Cir. 2009). Motions to strike pursuant to Rule 12(f) are usually
discouraged. See Smith v. Bray, 681 F.3d 888, 903 (7th Cir. 2012). Motions to strike are
appropriate, however, if they serve to expedite litigation, which can include striking jury
demands. See, e.g., Talbot v. Robert Matthews Distrib. Co., 961 F.2d 654, 664 (7th Cir. 1992)
(allegations may be stricken if the matter bears no possible relation to controversy); see also
DeliverMed Holdings, LLC v. Medicate Pharm. Inc., Nos. 10–cv–684–JPG–DGW,
10–cv–685–JPG–DGW, 2012 WL 345380, at *2 (S.D. Ill. Feb. 1, 2012) (finding that the
“pending motion to strike, if meritorious, may expedite the case by removing unwarranted jury
demands.”). The party moving to strike bears the burden of proof. See Otero v. Dart, No. 12 C
3148, 2012 WL 5077727, at *2 (N.D. Ill. Oct. 18, 2012) (citing E & J Gallo Winery v. Morand

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Bros. Beverage Co., 247 F. Supp. 2d 979, 982 (N.D. Ill. 2003)).
ANALYSIS
As noted above, the Seventh Circuit has held that the “nature of the remedy” inquiry is
the more important part of the test for whether a plaintiff’s claims entitle her to a jury. Dexia,
629 F.3d at 625. In other words, “whether the remedy sought is equitable or legal in nature” will
determine Goldberg’s right to a jury trial on most of her claims. (Id.) The Trump Defendants
argue that Goldberg’s claims do not support her jury demand because she seeks “entirely
equitable relief – for which the right of trial by jury does not exist.” (R. 191. Def.’s Mem. at 2.)
Specifically, Defendants claim that Goldberg merely seeks the equitable remedies of rescission
and restitution damages to return to the status quo before Goldberg entered into the Purchase
Agreements with the Trump Defendants. The Trump Defendants also argue that the Court
should strike the jury demand for Count II because there is no right to a jury trial under the ICFA
and Goldberg’s punitive damages claims are frivolous. (Id. at 7-14.)
Goldberg does not contest that rescission is an equitable remedy or that she has no right
to a jury trial if she seeks only equitable remedies. According to Goldberg, however, she seeks
legal remedies, such as compensatory and punitive damages, in addition to, or as an alternative
to, rescission. (R. 198, Resp. at 5-6.) In addition to rescission and an injunction, Goldberg’s
prayers for relief include “compensatory damages including, but not limited to, the return of her
$516,487.40 in deposit monies . . . plus interest on such monies . . . and any other monetary
damages available under applicable law.” (See Amend. Compl. at Counts I, II, III, V.) Goldberg
also argues that she can seek alternative remedies and then, after trial, pick which remedy to
pursue, which she intends to do. (Resp. at 3.)

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Notably, Goldberg does not directly address Defendants’ arguments regarding the
Condominium Act (Count I) and thus has waived any argument specifically relating to Count I.
See, e.g., U.S. v. Foster, 652 F.3d 776, 792 (7th Cir. 2011) (“Failure to respond to an argument
results in waiver.”) Based on Goldberg’s failure to address Defendants’ argument that money
damages are not available under the Condominium Act1, and the fact that Goldberg did not seek
punitive damages under Count I, the Court grants Defendants’ motion as to Count I because the
only relief available under the Condominium Act is equitable in nature. The Court addresses the
remaining counts in turn.
I.

Count III (Interstate Land Sales Act) and Count V (Breach of Contract)
The prayers for relief in Count III and Count V seek an order enjoining the closing on

Goldberg’s HCUs; allowing Goldberg to rescind the Purchase Agreements; awarding
compensatory damages including her deposit and interest “and any other monetary damages
available under applicable law;” and awarding attorney’s fees and costs. (Amend. Compl. at 28,
33.) The Trump Defendants acknowledge that Goldberg references “compensatory” and “other
monetary damages” in her Amended Complaint, but argue that these labels are “wrong” and
“irrelevant” because the only damages Goldberg has sought are those restoring the status quo,
specifically, returning her deposit and any interest due on that money. (Def.’s Mem. at 4.)
Defendants note that, in her required initial Rule 26(a) disclosures, and two subsequent
amendments to those disclosures, Goldberg does not provide any computation or description of

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Specifically, under the Condominium Act, “[f]ailure on the part of the seller to make
full disclosure as required by this Section shall entitle the buyer to rescind the contract for sale at
any time before the closing of the contract and to receive a refund of all deposit moneys paid
with interest thereon at the rate then in effect for interest on judgments.” 765 ILCS 605/22.
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monetary damages other than her earnest money deposit and related interest. (Reply at 3; R.
199-4, Reply Ex. B at ECF 3, 8; R. 199-4 at ECF 7 (stating that her “claims for damages include,
but are not limited to, the approximately $561,000 in earnest money deposits that [she] made
under the terms of the Purchase Agreements, including the interest on such deposits as well as
any statutory interest allowed under the law, punitive damages, and statutory attorney’s fees and
costs.”).) This lack of detail is not dispositive, however, as Goldberg does state in her Rule 26(a)
disclosures that some of the witnesses will testify about her potential actual and compensatory
damages. Moreover, whether she can prove these damages with sufficient certainty is an issue
for trial, not for this motion.
Furthermore, Goldberg also seeks monetary damages explicitly in both Count III and
Count V of the Amended Complaint. In Count III, she alleges that she
has been damaged through, among other things, the loss of her deposit monies, the
interest on such monies, the value of her HCUs, the loss of monies and benefits she was
to derive from the purchase of her HCUs, including but not limited to, her proportionate
share of the revenue and commissions from the Trump Tower Meeting/function
Ballrooms, unlimited use of her HCUs without impingement of her ability to earn rental
income through the Trump Defendants’ HCU Rental Reservation Program, rental income
from her HCUs when she is not suing them and access to the Trump Tower Health Club
when she is not occupying HCUs.
(Amend. Compl. Count III ¶ 77.) Under the Interstate Land Sales Act, a plaintiff may bring a
suit in law or equity, and “the [C]ourt may order damages, specific performance, or such other
relief as the court deems fair, just, and equitable.” 15 U.S.C. § 1709 (emphasis added).
Goldberg’s prayer for “any other monetary damages available under [the Interstate Land Sales
Act],” therefore, would include a prayer for damages, like those which she articulated.
In Count V, Goldberg alleges that she “is entitled to. . . an award of compensatory
damages proximately caused by Defendant’s material breaches and/or substantial non6

performance of its obligations under the Purchase Agreements.” (Id. Count IV ¶ 79.) She also
includes a prayer for “any other monetary damages available under [breach of contract law].”
Defendants do not contest that Illinois common law supports recovery of actual damages for
breach of contract claims. Goldberg’s allegations, therefore, sufficiently assert a right to a jury
trial on Counts III and Count V.
The Trump Defendants attempt to undermine Goldberg’s jury right by calling upon the
doctrine of election of remedies. Specifically, they argue that Goldberg elected to pursue the
remedy of rescission and cannot, therefore, also pursue the inconsistent remedy of actual
damages. (Def’s. Mem. at 4.) Under the election of remedies doctrine, “when a party has two
remedies proceeding upon opposite and irreconcilable claims of right, the one adopted excludes
the other.” Haymer v. Countrywide Bank, FSB, No. 10 C 5910, 2011 WL 3205365, at *3 (N.D.
Ill. July 28, 2011) (citing Medcom Holding Co. v. Baxter Travernol Labs., Inc., 984 F.2d 223,
228 (7th Cir. 1993)). Indeed, “[u]nder Illinois common law, the doctrine of election of remedies
is applicable only where a party has elected inconsistent remedies for the same injury or cause of
action.” Bank of Am., N.A. v. Shelbourne Dev. Grp., Inc., No. 09 C 4963, 2011WL 3439253, *7
(N.D. Ill. Aug. 5, 2011) (citing Hanson-Suminski v. Rohrman Midwest Motors, Inc., 386 Ill.
App.3d 585, 596-97, 461, 898 N.E.2d 194, 325 Ill. Dec. (Ill. 2008)).
Defendants are correct that “‘[a] remedy based on affirmance of a contract (e.g.,
damages) is generally inconsistent with one based on the disaffirmance of the contract (e.g.,
rescission).’” PHL Variable Ins. Co. v. Robert Gelb Irrevocable Trust, No. 10 C 957, 2010 WL
4363377, at *3 (N.D. Ill. Oct. 27, 2010) (quoting Lempa v. Finkel, 278 Ill. App.3d 417, 663
N.E.2d 158, 215 Ill. Dec. 408 (Ill. App. Ct. 1996)). The Seventh Circuit, quoting the Third

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Circuit, has explained, however, that
[t]he so-called ‘inconsistency of remedies’ is not an inconsistency between the remedies
themselves . . . [I]t means that a certain state of facts relied upon as the basis of a certain
remedy is inconsistent with and repugnant to another certain state of facts relied upon as
the basis of another remedy. When a certain state of facts under the law entitles a party
to alternative remedies, both founded upon the identical state of facts, these remedies are
not considered inconsistent remedies, though they may not be able to ‘stand together’; the
enforcement of the one remedy being a satisfaction of the party’s claim. In such case the
invocation of the one remedy is not an election which will bar the other . . .
Medcom, 984 F.2d at 228 (citing Abdallah v. Abdallah, 359 F.2d 170, 174-75 (3rd Cir. 1966)).
Here, Goldberg has included multiple counts in her Amended Complaint, and various
remedies in each count, based on a common set of facts. See, e.g., Fed. R. Civ. P. 8(a) (allowing
a party to seek alternative types of relief). She has not, as Defendants argue, simply elected
rescission as her remedy. Asserting rescission as one of the remedies she seeks does not
preclude her from alternatively seeking affirmance of the Purchase Agreements and related
damages. Rather, she “may seek, but not obtain, both remedies.” Najjar v. Daleh, No. 09 C
3554, 2011 WL 1770077, at *5 (N.D. Ill. May 9, 2011) (“[U]nder Illinois law, ‘[t]he victim of a
fraud may elect one of two remedies. He may choose to keep the benefit of his bargain, leaving
the contract in place and recovering damages for his injuries. In the alternative, he may elect
rescission and restitution.’”) (quoting In re Green, 241 B.R. 187, 199 (Bkrtcy. N.D. Ill.1999));
see also Friederichsen v. Renard, 247 U.S. 207, 213, 38 S. Ct. 450 (1918) (allowing a plaintiff,
who sued to cancel a contract for exchange of lands and a deed, to amend his petition to
alternatively seek monetary relief finding that he did not already elect an inconsistent remedy).
Moreover, “[t]he doctrine of election of remedies ‘should be confined to cases where (1)
double compensation of the plaintiff is threatened or (2) the defendant has actually been misled
by the plaintiff’s conduct or (3) res adjudicata can be applied.’” Shelbourne, 2011WL 3439253,
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*7 (quoting Kel-Keef Enter., Inc. v. Quality Components Corp., 316 Ill. App. 3d 998, 1008, 738
N.E.2d 524, 250 Ill. Dec. 308 (Ill. App. Ct. 2000) (citation omitted); see also Olympia Hotels
Corp. v. Johnson Wax Develop. Corp., 908 F.2d 1363, 1371 (7th Cir. 1990) (finding that the
election of remedy doctrine “seeks to prevent double recovery”). None of these circumstances
are present here. This is not a case where, for example, a defendant might be prejudiced if it
continued to perform aspects of a contract, based on a plaintiff’s lawsuit for damages on the
contract, but the plaintiff later sued for rescission. Cf., Medcom., 984 F.2d at 229. Here,
Goldberg did not close on the property at issue, but instead halted the transaction when she
discovered the alleged fraud and sought either equitable or legal relief from the court. (See
Amend. Compl. ¶ 74 (“Pursuant to an agreement entered into between Goldberg and the Trump
Defendants or around June 3, 2009, the Trump Defendants agreed not to proceed with the
closings on her HCUs.”).)
There is also no threat of double recovery as Goldberg will not be able to enjoy a
judgment simultaneously rescinding and affirming the contract. The Court, therefore, will not
require her to elect which remedy she wishes to recover at this time. See, e.g., Olympia, 908
F.2d at 1371-72) (finding that “[i]t would be unreasonable to make [the plaintiff] choose between
the two forms of damages before trial and verdict” because the jury might only find that the
plaintiff had a good claim on either breach of contract or fraud and plaintiff would recover
nothing if the court forced her to choose a remedy); see also Williamson?Company, LLC v. AML
& Assocs., Inc., No. 09 C 2631, 2009 WL 2391841, at *2 (N.D. Ill. Aug. 3, 2009) (“With no
election of remedies thus having taken place in the sense defined by the caselaw, [plaintiff] is not
stuck with the adverse consequences . . . that would flow from the pursuit of its contract remedy

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to judgment.”); Donaldson v. Pharmacia Pension Plan, 435 F. Supp.2d 853, 869 n. 5 (S.D. Ill.
2006) (quoting Weft, Inc. v. G.C. Inv. Assocs., 630 F. Supp. 1138, 1144 (E.D.N.C. 1986))
(“Although plaintiffs may not obtain a duplicative recovery, there is no requirement that they
elect one remedy over another prior to final judgment.”).
Indeed, “[t]he point . . . is not that an election of remedies is required but that once made
it may be final either by operation of res judicata or because a change of ground would create
unreasonable surprise or unduly complicate or delay the litigation.” Olympia, 908 F.2d at 1372
(interpreting Wisconsin case law which applies the same election of remedies analysis as
Illinois). Because Goldberg has pled multiple remedies, and has not elected rescission as her
only remedy at this stage, the Court denies Defendants’ motion to strike Goldberg’s jury demand
as to Count III and Count V.2

2

In their brief, Defendants tersely state in two sentences an additional argument based on
the Purchase Agreements: “Nor are money damages available under Count V, for breach of
contract. That is because the Purchase Agreements plainly state that upon breach by Seller,
Purchaser’s ‘sole and exclusive remedy’ is a refund of her earnest money.” (Def.’s Mem. at 5
(citing Purchase Agreements, Dkt. No. 1-13 ¶12(b)).) Defendants do not signpost this argument
when introducing its arguments earlier in their brief, elaborate on this argument at any other
point in their brief, or mention it at all in their Reply. Defendants also offer no analysis of the
Purchase Agreements’ language or any case law to support this argument. Defendants,
therefore, have waived this two-sentence, conclusory argument. See U.S. v. Dickerson 705 F.3d
683, 691 (7th Cir. 2013) (recognizing that an undeveloped argument is waived) (citing U.S. v.
Holm, 326 F.3d 872, 877 (7th Cir. 2003) (“perfunctory and undeveloped arguments, and
arguments that are unsupported by pertinent authority, are waived (even where those arguments
raise constitutional issues)”); see also U.S. v. Stafield, 689 F.3d 705, 712 (7th Cir. 2012)
(“Undeveloped arguments are considered waived.”) (citing Gross v. Town of Cicero, Ill., 619
F.3d 697, 704 (7th Cir. 2010) (“[I]t is not this court's responsibility to research and construct the
parties’ arguments, and conclusory analysis will be construed as waiver.”)).
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II.

Count II (Illinois Consumer Fraud and Deceptive Business Practices Act)
The Trump Defendants also seek to strike the jury demand as to Count II, the ICFA

claim. Defendants’ argument regarding Count II that Goldberg seeks only rescission fails for the
same reasons as stated above regarding Counts III and V. Specifically, in Count II, in addition to
rescission and restitution, Goldberg seeks all monetary damages available under the ICFA as
well as punitive damages. (Amend. Compl. at 26-27.) Additionally, Goldberg alleges that she
has been damaged through, among other things, the loss of her deposit monies, the
interest on such monies, the value of her HCUs, the loss of monies and benefits she was
to derive from the purchase of her HCUs, unlimited use of her HCUs without
impingement of her ability to earn rental income through the Trump Defendants’ HCU
Rental Reservation Program, rental income from her HUCs when she is not using them
and access to Trump Tower Health Club when she is not occupying her HCUs.
(Id. Count II ¶ 84.) Also, in her deposition, Goldberg testified that she suffered damages from
the stress and anxiety caused by being the victim of Defendants’ allegedly fraudulent business
practices and her inability to use the half-million dollar deposit she gave Defendants for a
different purpose. (R. 198-3, Ex. 2, Goldberg Dep. at 170-72, 188-90); see also Haymer, 2011
WL 3205365 at *3 (“Under the ICFA, actual damages include compensation for mental
suffering.”). Her allegations establish a claim for monetary damages as an alternative to
rescission at this stage.
Additionally, in Count II, Goldberg seeks punitive damages, which Defendants concede
“are traditionally considered legal in nature.” (Def.’s Mem. at 8.) Moreover, “the ICFA permits
recovery of punitive damages.” Oshana v. Coca-Cola, 471 F.3d 506, 512 (7th Cir. 2006).
Defendants argue, however, that Goldberg’s demand for punitive damages is “frivolous” because
(1) Goldberg cannot obtain punitive damages because she has no actual damages, and (2) the
facts do not justify an award of punitive damages. (Id. at 8-10.) First, as discussed above, the
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Court finds that Goldberg has sufficiently pled a demand for compensatory and monetary
damages. Defendants’ first argument is therefore moot.
Second, Defendants’ latter argument fails because the Court cannot make factual
determinations at this time. Moreover, during summary judgment, the Court found that, based
on the factual record at that stage, the fact-finder could conclude that the Trump Defendants
“never intended to convey the HCUs in the manner described in the Property Report and
Marketing Materials that Ms. Goldberg received . . . and that Defendants therefore
misrepresented and concealed material information.” Goldberg v. 401 N. Wabash et al., No. 09
C 6455, 2012 WL 4932653, at *19 (N.D. Ill. Oct. 16, 2012). Goldberg has asserted sufficient
facts to make a plausible claim that Defendants acted “with fraud, actual malice, deliberate
violence or oppression, or . . . willfully, or with such gross negligence as to indicate a wanton
disregard for the rights of others,” as required to warrant punitive damages. In re Zimmer
Nexgen Knee Implant Products Liab. Litig., MDL No. 2272, No. 11 C 5468, 2012 WL 3582708,
at *13 (N.D. Ill. Aug. 16, 2012) (citing Slovinski v. Elliot, 237 Ill.2d 51, 58, 927 N.E.2d 1221,
340 Ill. Dec. 210 (Ill. 2010); see also Roboserve, Inc. v. Kato Kagaku Co., Ltd., 78 F.3d 266 (7th
Cir. 1996) (“Illinois courts do not favor punitive damages and insist that plaintiffs must establish
‘not only simple fraud but gross fraud, breach of trust, or other extraordinary or exceptional
circumstances clearly showing malice or willfulness.”). At this stage, the Court need not
determine whether Goldberg will sufficiently prove a basis for punitive damages at trial, only
that she has asserted such a basis. Goldberg, therefore, has asserted legal claims, in addition to
her equitable claims, by seeking monetary and punitive damages in Count II.

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The Trump Defendants additionally argue that, regardless of whether Goldberg seeks an
equitable or legal remedy, there is no right to a jury trial under the ICFA. (Def.’s Mem. at 7-8.)
Specifically, Defendants urge the Court to follow the Illinois courts, which do not recognize a
right to a jury trial under the ICFA. (Id.) “The right to a jury trial in federal court, [however],
hinges on federal procedural law.” Dexia, 629 F.3d at 625. Furthermore, the Court here must
follow the Seventh Amendment, “which is binding on federal courts but not state courts, [and]
may create a right to a jury trial in federal court even where no such right exists in state court.”
Kremers, 714 F. Supp.2d at 916 (citing Simler v. Conner, 372 U.S. 221, 222, 83 S. Ct. 609, 9 L.
Ed. 2d 691 (1963); Wartman v. Branch 7, Civil Div., Cnty. Court, Milwaukee Cnty., State of
Wis., 510 F.2d 130, 134 (7th Cir. 1975)). The Seventh Circuit has not yet decided whether there
is a right to a jury trial in federal court under the ICFA. Numerous federal courts in this Circuit,
however, have decided that plaintiffs in federal court have a right to a jury under the ICFA. See,
e.g., also DeliverMed Holdings, 2012 WL 345380 at *2; Kremers v. The Coca-Cola Co., 714 F.
Supp. 2d 912 (S.D.Ill. 2009); Cellular Dynamics, Inc. v. MCI Telecom. Corp., No. 94 C 3126,
1997 WL 285830, at *7 (N.D. Ill. May 23, 1997); Israel Travel Advisory Serv., Inc. v. Israel
Identity Tours, Inc., No. 92 C 2379 1993 WL 451410, at *2 (N.D. Ill. Nov. 2, 1993); Inter-Asset
Finanz AG v. Refco, Inc., No. 92 C 7833, 1993 WL 311772, at *4 (N.D. Ill. Aug. 12, 1993).
Defendants cite no case that stands for the proposition that a federal plaintiff does not
have a right to a jury trial under the ICFA. They also offer no justification or legal analysis as to
why the Seventh Amendment would not provide a right to a jury trial in federal court. Rather,
Defendants cite to cases that did not analyze the issue because the plaintiffs “recognized” or
“agreed” that there was no right or the party waived its right to the jury trial. (Def’s. Mem. at 8.)

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Defendants also cite to a 1993 federal district court decision. (Def.’s Mem. at 7.) In that 1993
decision, the judge merely stated, in dicta, without analysis, that the issue of fraud under the
ICFA is to be decided by the judge not the jury. Midland Mgmt. Corp. v. Comp. Consoles Inc.,
No. 87 C 0971, 1993 WL 69624, at *2 (N.D. Ill. Mar. 11, 1993). Notably, the judge further
explained that “[i]n a dual bench-jury trial the jury’s verdict binds the judge with respect to any
factual issues common to the jury- and judge-tried claims.” Id. The jury, therefore, may
consider fraud in a case, like here, where the other claims require the jury to assess the
potentially fraudulent conduct of the defendants. Rather than accepting Defendants’ suggestion
to follow Illinois precedent based on federal caselaw lacking substantive analysis, the Court opts
to follow the persuasive, well-reasoned authority from its sister federal trial courts in this Circuit
which have found that there is a right to a jury trial on an ICFA claim in federal court.
As the court in Kremers explained, to determine if a jury right exists, the Court must:
“(1) compare the statutory action in question to analogous 18th-century actions existing at the
time the Seventh Amendment was ratified, which antedates, of course, the merger of the courts
of law and equity in the federal judicial system; and (2) examine the remedy sought, and
determine whether the claim and the remedy are legal or equitable in nature.” 714 F. Supp.2d at
916 (citing Tull, 481 U.S. at 417-18; U.S. v. One 1976 Mercedes Benz 280S, 618 F.2d 453,
456-58 & n. 8 (7th Cir. 1980)). The Court previously found that Goldberg seeks both legal and
equitable claims, as required by the second inquiry. It, therefore, must compare an ICFA action
to analogous 18th-century actions existing at the time of the adoption of the Seventh
Amendment. See, e.g., City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687,
708-09, 119 S. Ct. 1624, 143 L. Ed. 2d 882 (1999) (“The Seventh Amendment thus applies not

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only to common-law causes of action but also to statutory causes of action analogous to
common-law causes of action ordinarily decided in English law courts in the late 18th century,
as opposed to those customarily heard by courts of equity or admiralty.”).
The Court agrees with the court in Kremers that an ICFA deceptive trade practices claim
resembles a common law fraud claim with the additional requirement that a plaintiff prove intent
to deceive or reasonable reliance on a misrepresentation. Id. at 917; see, e.g., CDX Liquidating
Trust v. Venrock Assocs., No. 04 C 7236, 2005 WL 3953895, at *3 (N.D. Ill. Aug. 10, 2005)
(finding that, historically, courts have construed fraud claims as legal claims rather than
equitable claims); see also Williams Elecs. Games, Inc. v. Garrity, 366 F.3d 569, 578 (7th Cir.
2004) (“[A] suit complaining of fraud is treated as a case at law if a legal rather than an equitable
remedy is sought.”). Indeed, United States Supreme Court “decisions establish beyond
peradventure that in cases of fraud or mistake, as under any other head of chancery jurisdiction, a
court of the United States will not sustain a bill in equity to obtain only a decree for the payment
of money by way of damages, when the like amount can be recovered at law in an action
sounding in tort or for money had and received.” Kremers, 714 F. Supp. 2d at 917 (citing
Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 47-48, 109 S. Ct. 2782, 106 L. Ed. 2d 26
(1989)). Furthermore, ICFA claims “sound basically in tort.” City of Moneterey, 526 U.S. at
709 (citing Curtis v. Loether, 415 U.S. 189, 195-96, 94 S. Ct. 1005, 39 L. Ed. 2d 260 (1974)).
Specifically, “the [ICFA] statute merely defines a new legal duty, and authorizes the court to
compensate a plaintiff for injury caused by the defendant’s wrongful breach.” Kremers, 714 F.
Supp. 2d at 918 (citing Curtis 415 U.S. at 195). The ICFA is, therefore, analogous to 18thcentury actions at law, giving Goldberg a right to a federal jury trial on Count II.

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CONCLUSION
For the foregoing reasons, the Court grants Defendants’ motion to strike the jury demand
as to Count I and denies it as to Counts II, III, and V. The Court will try all of the legal issues to
the jury first and the jury’s facutal findings will bind the Court as it evaluates the equitable relief
sought in Count I. See, e.g., Williams Elecs., 366 F.3d at 578 (“And of course when an equitable
remedy is sought in conjunction with a legal remedy the legal claim is tried first and the jury’s
findings bind the judge, in order to vindicate the right to a jury trial on legal claims.”) (citing
Dairy Queen, Inc. v. Wood, 369 U.S. 469, 479, 82 S. Ct. 894, 8 L. Ed. 2d 44 (1962); Snider v.
Consolidation Coal Co., 973 F.2d 555, 559 (7th Cir. 1992)); Chromas Techs., 356 F.3d at 735
(“Even when a plaintiff is entitled to a jury trial on his legal claims, the district court must
nonetheless make an independent judgment as to any equitable issue . . . [however] the jury’s
determination of factual issues common to both the legal and equitable claims would bind the
court.”).
DATED: March 11, 2013
ENTERED

___________________________________
AMY J. ST. EVE
United States District Court Judge

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