United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE SENIOR UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant's Motion for
Reconsideration (Doc. #68) filed on January 9, 2017.
Plaintiff filed a Response in Opposition (Doc. #75) on
February 6, 2017. For the reasons stated below, the Motion is
Nationstar asks this Court to reconsider its December 29,
2016 Order (Doc. #65) denying Nationstar's opposed Motion
to Strike Plaintiff's Jury Demand (Docs. # 48; 56).
Nationstar sought to strike the jury demand because of jury
waiver provisions contained in Plaintiff's mortgage
agreement and a prior settlement agreement between Plaintiff
and Nationstar. In denying Nationstar's Motion to Strike,
the Court concluded, sua sponte, that Nationstar had
waived the right to invoke the jury waiver provisions by
selecting the jury trial option in the parties' signed
joint Case Management Report (CMR) (Doc. #26), and further,
by failing to expeditiously object to the Court's Case
Management and Scheduling Order (Doc. #31) scheduling the
case for a jury trial for the April 2017 term. (Doc. #65, p.
3.) Having so concluded, the Court did not address whether
the waiver provisions were enforceable and encompassed
now contends that reconsideration is warranted because:
“Nationstar explicitly den[ied] Plaintiff's alleged
right to a jury trial” in its Answers to
Plaintiff's Complaint and Amended Complaint; 2) the
designation of a case for a jury trial in a joint case
management report does not waive the right to later object to
that designation; and 3) this Court relied on
“inapposite law [that is] contrary to persuasive
authority on the subject” in denying the Motion to
Strike. (Doc. #68, pp. 1-2.)
non-final order may be revised at any time before the entry
of a final judgment. Fed.R.Civ.P. 54(b). The decision to
grant a motion for reconsideration is within the sound
discretion of the trial court and may be granted to correct
an abuse of discretion. Region 8 Forest Serv. Timber
Purchasers Council v. Alcock, 993 F.2d 800, 806 (11th
Cir. 1993). “The courts have delineated three major
grounds justifying reconsideration of such a decision: (1) an
intervening change in controlling law; (2) the availability
of new evidence; (3) the need to correct clear error or
prevent manifest injustice.” Sussman v. Salem,
Saxon & Nielsen, P.A., 153 F.R.D. 689, 694 (M.D.
Fla. 1994). According to Nationstar, reconsideration is
warranted to correct the Court's clear error in denying
the Motion to Strike on waiver grounds.
Nationstar's Answers had “explicitly denied”
Plaintiff's right to a jury trial (which they did
not), the Court would still find
reconsideration unwarranted. Though true - as Nationstar
points out - that “Rule 39(a)(2) contains no time limit
for the filing of an objection to the demand for a jury
trial” and thus a jury demand may be stricken even days
before trial (Doc. #68, p. 6 (quoting FN Herstal SA v.
Clyde Armory Inc., 838 F.3d 1071, 1090 (11th Cir.
2016))), whether to strike a jury demand still rests within
the Court's sound discretion. Tracinda Corp. v.
DaimlerChrysler AG, 502 F.3d 212, 226 (3d Cir. 2007);
Brown Jordan Int'l Inc. v. Carmicle, No.
0:14-CV-60629, 2015 WL 11197774, at *1 (S.D. Fla. Aug. 27,
2015); see also Fed. R. Civ. P 39(a).
undersigned previously exercised his discretion in favor of
denying Nationstar's Motion to Strike and finds no clear
error in that decision. Unlike the defendant in the FN
Herstal case, here, Nationstar has not asserted that
Plaintiff lacks a Seventh Amendment right to proceed before a
jury; rather Nationstar argues only that Plaintiff
contractually waived the right to a jury trial. The
distinction is important. The former scenario typically
manifests later in the litigation process, when claims and
remedies are narrowed, as was the case in FN
Herstal. Id. at 1088-89. In contrast, the
waiver argument has been available to Nationstar since the
day the Complaint was filed. Nothing prevented Nationstar
from moving to strike Plaintiff's jury demand sooner, and
there certainly was no reason for Nationstar to agree to a
jury trial in the CMR if Nationstar believed Plaintiff had
waived that right.
the Court relied on “inapposite law [that is] contrary
to persuasive authority on the subject” in denying the
Motion to Strike, as Nationstar contends. The law on which
the Court principally relied was the undersigned's own
recent Opinion and Order denying, in (pertinent) part, a
defendant's motion to strike the plaintiff's jury
demand: Gulf Bay Capital, Inc. v. Textron Fin.
Corp., No. 2:14-CV-209-FTM-29CM, 2016 WL 4009942 (M.D.
Fla. July 27, 2016). As relevant here, the Court concluded that
even though neither party had demanded a jury trial,
the parties' subsequent agreement to proceed before a
jury - as indicated by the "jury trial" option
selected in the signed joint case management report - was
sufficient to establish mutual consent to a jury trial.
Id. at *2. Before reaching that conclusion, the
Court reviewed apposite decisions from other district court
judges (having uncovered no Eleventh Circuit decision on the
subject), some of which found that waiver had occurred, and
others holding against waiver. Ultimately, the Court viewed
better-reasoned those cases finding waiver. Nationstar has
presented the Court with no binding authority compelling a
different result under the facts presented here.
it is hereby
Motion for Reconsideration of Court's Order Denying
Motion to ...