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Alfredo Lascoutx v. Wells Fargo Bank

November 16, 2011

ALFREDO LASCOUTX, PLAINTIFF,
v.
WELLS FARGO BANK, N.A., AS SUCCESSOR IN INTEREST TO WACHOVIA BANK, N.A., F/K/A FIRST UNION N.A. OF FLORIDA, DEFENDANT.



[CONSENT CASE]

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.

I.INTRODUCTION

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]. The 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.

II.LEGAL STANDARDS

a.THE LOCAL ...


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