Cairone et al v. Prospect Mortgage, LLC

Filing 35

ORDER by Judge Richard A Jones. The court GRANTS plaintiffs' 18 Rule 12(f) motion to strike defendants' jury demand. (CL)

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HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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JULIE CAIRONE1, et al.,

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Plaintiffs,
v.

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CASE NO. 13-722 RAJ

PROSPECT MORTGAGE, LLC,

ORDER

Defendant.

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This matter comes before the court on plaintiffs’ motion to strike defendant’s jury

17 trial demand. Dkt. # 18.
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Federal Rule of Civil Procedure 12(f) allows for a court to “strike from a pleading

19 … any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. Proc.
20 12(f). The function of a 12(f) motion to strike is to avoid the expenditure of time and
21 money that must arise from litigating spurious issues by dispensing with those issues
22 prior to trial. Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev’d on
23 other grounds, 510 U.S. 517 (1994). Immaterial matter is that which has no essential or
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Although Ms. Cairone was terminated as a party to this action, the parties have not

26 moved the court for an order formally changing the caption. The court will continue to caption
this case with Ms. Cairone as the plaintiff, and ORDERS the parties to do so as well on all future

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ORDER- 1

1 important relationship to the claim for relief or the defenses being pleaded, and
2 impertinent matter consists of statements that do not pertain, and are not necessary, to the
3 issues in question. Id. Motions to strike are generally disfavored, and should be denied
4 unless the matter has no logical connection to the controversy at issue and may prejudice
5 one or more parties. Johnson v. U.S. Bancorp, Case No. C11-2010RAJ, 2012 WL
6 6615507, *7 (W.D. Wash. Dec. 18, 2012). In deciding a motion to strike, the court must
7 view the pleading in the light most favorable to the pleading party. Id.
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The Constitutions of the United States and Washington guarantee the right to trial

9 by jury in civil cases. U.S. Const. Amend. VII; Wash. Const. art. 1, § 21. The parties
10 agree that parties may waive their civil right to trial by jury through contractual waivers.
11 Dkt. # 18 at 4; Dkt. # 19 at 5; see also Frontline Processing Corp. v. First State Bank of
12 Eldorado, 389 Fed. Appx. 748, 754 (9th Cir. 2010) (plaintiff waived right to jury trial
13 based on jury-trial waiver provision in contract); Ingle v. Circuit City Stores, Inc., 328
14 F.3d 1165, 1170 (9th Cir. 2003) (arbitration agreements are subject to defenses that apply
15 to contracts, and federal courts should apply ordinary state-law principles that govern the
16 formation of contracts); Adler v. Fred Lind Manor, 153 Wash. 2d 331, 360, 103 P.3d 773
17 (Wash. 2005) (“by knowingly and voluntarily agreeing to arbitration, a party implicitly
18 waives his right to a jury trial by agreeing to an alternate forum, arbitration.” ).
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The Washington Supreme Court2 has stated:

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The doctrine of waiver ordinarily applies to all rights or privileges to which
a person is legally entitled. A waiver is the intentional and voluntary
relinquishment of a known right, or such conduct as warrants an inference
of the relinquishment of such right. It may result from an express
agreement or be inferred from circumstances indicating an intent to waive.
It is a voluntary act which implies a choice, by the party, to dispense with
something of value or to forego some advantage. The right, advantage, or
benefit must exist at the time of the alleged waiver. The one against whom

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It is unclear to the court why plaintiffs have cited legal authority from other

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ORDER- 2

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waiver is claimed must have actual or constructive knowledge of the
existence of the right. He must intend to relinquish such right, advantage or
benefit; and his actions must be inconsistent with any other intention than
to waive them.
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An implied waiver may arise where one party has pursued such a course of
conduct as to evidence an intention to waive a right, or where his conduct is
inconsistent with any other intention than to waive it. . . .

6 Bowman v. Webster, 44 Wash. 2d 667, 669-70, 269 P.2d 960 (Wash. 1954).
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Here, plaintiffs were opt-in plaintiffs in a collective class action against defendant

8 in the Eastern District of California (the “Sliger” litigation). Based on a review of that
9 docket, the named plaintiffs made a demand for a jury trial upon filing the complaint in
10 October 2010. Case No. C11-465-LKK-EFB, Dkt. # 1. However, plaintiffs in this action
11 did not opt-in to the Sliger litigation until after the class had been conditionally certified
12 and over a year after the initial demand for a jury trial, between November 22, 2011 and
13 February 28, 2012. Dkt. # 1, Ex. A. In January 2013, the Sliger court entered an order
14 decertifying the class pursuant to a stipulation of the parties. Plaintiffs filed this case in
15 April 2013, and did not demand a jury trial.
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The court finds that the simple act of opting in to a class action does not indicate a

17 course of conduct that evidences an intention to waive the jury waiver agreements, or
18 demonstrate that plaintiffs’ conduct in opting in was inconsistent with any other intention
19 than to waive the agreements. As the parties are well aware, putative class members
20 frequently opt-in to class actions pursuant to a notice and simply wait for resolution of
21 the case. There is no evidence that plaintiffs took any actions in the Sliger litigation,
22 other than filing a consent to make a claim under the Fair Labor Standards Act. Such an
23 action is insufficient as a matter of law to implicitly waive the jury waiver agreement,
24 especially where the jury demand was made prior to their involvement in the case.
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ORDER- 3

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Additionally, the jury waiver agreements explicitly evidence the parties’ intent to

2 waive the right to a jury in a civil case, and to have all disputes resolved by a judge.3 The
3 court finds that plaintiffs have provided sufficient authentication of the jury waivers
4 where they were produced by defendant as part of the personnel files in the Sliger action.
5 Dkt. # 21-1 (Hansen Decl.) ¶¶ 3-6; see Orr v. Bank of Am., NT & SA, 285 F.3d 764, 777
6 n.20 (9th Cir. 2002) (citing other legal authority for the propositions that documents
7 produced by a party in discovery are deemed authentic when offered by the part8 opponent and that authentication can be accomplished through judicial admissions such
9 as production of items in response to discovery requests).
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For all the foregoing reasons, the court GRANTS plaintiffs’ Rule 12(f) motion to

11 strike defendants’ jury demand. Given that defendant has not produced the personnel file
12 for plaintiff Marta Montalto, and the court does not have evidence of an explicit jury
13 waiver between her and defendant, this order does not apply to her. If such a waiver is
14 found in her personnel file, she may file a motion to strike at that time.
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Dated this 12th day of March, 2014.

A

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The Honorable Richard A. Jones
United States District Judge

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Although the jury waiver was not signed by defendant, it nevertheless demonstrates that
defendant intended to waive its own right to a jury trial. The agreement provides: “Although the
Company believes that our internal complaint resolution procedures should be sufficient to
resolve any workplace problems that you may have, we recognize that sometimes
notwithstanding everyone’s best efforts, a matter cannot be resolved informally. In those rare
instances, we believe that our nation’s judges (such as federal judges who are appointed by
Congress for life and thus are free from any outside bias or influence) are in the best position to
resolve our workplace disputes. Accordingly, we have created this policy, which, in effect,
says that if you file a lawsuit, a judge will decide if we acted correctly or incorrectly.” Dkt. # 182 at 2-6 (Ex. 1 to Mot.) (emphasis added).

ORDER- 4