Police and Fire Retirement System of the City of Detroit et al v. Watkins et al

Filing 254

ORDER denying 243 Motion to Strike Jury Demand. Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

POLICE AND FIRE RETIREMENT
SYSTEM OF THE CITY OF DETROIT,
et al.,
Plaintiffs,
v.

Case No. 08-12582
Hon. Victoria A. Roberts

DONALD V. WATKINS, et al.,
Defendants/Third-Party Plaintiffs,
v.
NORTH POINT ADVISORS, LLC., et al.,
Third-Party Defendants.
_______________________________________/

ORDER DENYING PLAINTIFFS’ MOTION TO STRIKE JURY DEMAND (DOC. 243)
This case arises from a deal to invest in the development of a cargo airline
company. It involves two guaranty agreements to which Plaintiffs and Defendants are
parties. Each guaranty agreement includes a jury waiver provision. Plaintiffs filed their
original complaint on June 17, 2008. Defendants demanded a jury trial in their answer to
the original complaint on June 24, 2008, and again in their answer to the amended
complaint on December 26, 2008. Jury trial is scheduled to begin on April 25, 2013.
This matter is now before the Court on Plaintiffs’ Motion to Strike Jury Demand
pursuant to Federal Rule of Civil Procedure 39(a)(2) and Local Rule 7.1(h)(3). (Doc.
243). Plaintiffs say that Defendants voluntarily and knowingly waived their right to a jury
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trial in the guaranty agreements, and request that the Court set this cause for a bench
trial.
The Seventh Amendment provides litigants with the right to a jury trial, but
litigants can waive this right by contract. U.S. Const. amend VII; K.M.C. Co. v. Irving
Trust Co., 757 F.2d 752, 756 (6th Cir. 1985). The waiver must be “knowing and
voluntary” and the party who objects to the waiver must demonstrate that its consent to
the provisions was not knowing and voluntary. K.M.C., 757 F.2d at 756, 758.
Defendants do not contest that their waiver was knowing and voluntary. The crux
of their argument is that Plaintiffs’ motion is untimely because Defendants’ demand for a
jury trial was made almost five years ago, and trial and its final preparations are near.
Defendants argue that the Court has discretion to decide whether a motion to strike a
jury demand is timely. They say that Plaintiffs’ delay waived their right to seek to strike
Defendants’ jury demand.
Plaintiffs say that a motion to strike a jury demand based on contractual waiver
may be brought at any time, even on the eve of trial; they direct the Court to
Experi-Metal, Inc. v. Comerica Bank, 09-14890, 2010 WL 3766488 (E.D. Mich. Sept. 21,
2010).
Although Rule 39(a)(2) does not limit the time by which a party must object to a
jury demand, and a motion to strike a jury may be filed anytime, the Court is not
persuaded that Experi-Metal, Inc. is controlling. Experi-Metal, Inc. did not involve
opposition to a motion to strike a jury demand for untimeliness or waiver of the right to
enforce a jury trial waiver agreement.
The Court finds other authority more persuasive and exercises its discretion to
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deny this motion. See Burton v. Gen. Motors Corp., 1:95CV1054DFH-TAB, 2008 WL
3853329 at *7 (S.D. Ind. Aug. 15, 2008) (“Parties have a great deal of latitude on the
timing of motions to strike a jury demand, but the court has discretion to decide whether
a motion to strike a jury demand is timely or too late.” (internal quotation marks
omitted)); Madura v. Countrywide Home Loans, Inc., 806CV2073T24TBM, 2008 WL
151850 (M.D. Fla. Jan. 15, 2008) (holding that the defendants waived their right to
enforce a jury trial waiver provision based on their delay in seeking to enforce it and
their failure to object to scheduling orders setting the case for jury trial); Coleman v.
Lazy Days RV Ctr., Inc., 8:05-CIV-930-T17TBM, 2007 WL 2696789 at *2-3 (M.D. Fla.
Sept. 12, 2007) (same).
Not only have Plaintiffs waited years to seek to enforce the jury trial waiver
provision, they failed to object to the August 16, 2012 Scheduling Order setting the case
for jury trial, and they relied upon Defendants’ jury demand to preclude purported expert
testimony that could have been “particularly confusing to the jury.” See Plaintiffs’ Motion
in Limine, (Doc. 139).
Given their delay and contradictory actions, the Court finds that Plaintiffs waived
their right to enforce the jury waiver provision; their motion to strike Defendants’ jury
demand is untimely.
Plaintiffs’ motion is DENIED. The Court denies Defendants’ request for attorney
fees and costs.
IT IS ORDERED.
S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
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Dated: March 5, 2013
The undersigned certifies that a copy of this
document was served on the attorneys of
record by electronic means or U.S. Mail on
March 5, 2013.
S/Carol A. Pinegar
Deputy Clerk

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