United States District Court, M.D. Florida, Tampa Division
VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE
matter comes before the Court in consideration of Defendants
Ampush Media, Inc. and DGS Edu, LLC's Joint Motion to
Partially Strike/Dismiss Plaintiff's Third Amended
Complaint (Doc. # 206), filed on February 9, 2017, and
Defendants' Joint Motion to Strike Jury Demand (Doc. #
214), filed on February 23, 2017. Plaintiff Connectus LLC
filed responses in opposition on February 23, 2017, and March
9, 2017, respectively. (Doc. ## 213, 219). For the reasons
below, both Motions are denied.
detailed recounting of this action's history is not
needed to dispose of the instant Motions. Suffice it to say,
Connectus's Second Amended Complaint brought claims for
conversion, misappropriation of trade secrets under Florida
law, unfair competition, unjust enrichment, breach of
contract, and injunctive relief. (Doc. # 106). The claim for
misappropriation of trade secrets under Florida law sought,
among other things, injunctive relief. (Id. at 9).
And, as with the earlier versions, Connectus's Second
Amended Complaint included a demand for a jury trial.
(Id. at 13).
DGS Edu and Ampush filed Rule 12(c) motions. (Doc. ## 114,
115). After being fully briefed, the Court made the following
relevant rulings: (1) California law governed in accordance
with the parties' agreement; (2) Connectus's
common-law claims for conversion, unfair competition, and
unjust enrichment were dismissed as preempted; (3)
Connectus's stand-alone claim for injunctive relief was
improper under California law; and (4) Connectus could file a
third amended complaint that pled the trade-secrets claim
under California law and could amend its breach-of-contract
claim to include a claim for injunctive relief. (Doc. # 188
timely filed its Third Amended Complaint. (Doc. # 200). The
Third Amended Complaint asserts only two claims; namely, a
claim under California's Uniform Trade Secrets Act, Cal.
Civ. Code § 3426.1(d), (CUTSA) and a claim for breach of
contract. (Id.). As with the Second Amended
Complaint, Connectus's trade-secrets claim seeks
injunctive relief. (Id. at 8). The Third Amended
Complaint also contains a demand for a jury trial.
(Id. at 10).
to the Third Amended Complaint is the parties' agreement.
(Doc. # 200-1). Paragraph 6 of that agreement reads:
LAW & ATTORNEYS' FEES
The interpretation and construction of this Agreement and
all matters relating hereto shall be governed by the
laws of the State of California.
The parties hereby submit to the jurisdiction of, and waive
any venue objections against, the United States District
Court for the Northern District of California, San Francisco
County Branch and the Superior and Municipal Courts of the
State of California. Each of the parties agrees that
it shall not seek a jury trial in any proceeding based upon
or arising out of or otherwise related to this
Agreement or any of the other documents and
instruments contemplated hereby and each of the
parties hereto waives any and all right to such jury trial.
AMPUSH and VENDOR[, i.e.,
Connectus, ] acknowledge that the
foregoing waiver is knowing and voluntary. The
prevailing party shall be awarded its reasonable
attorneys' fees and costs in any lawsuit arising out of
or related to this Agreement.
(Id. at ¶ 6) (emphasis added).
and Ampush now seek to strike or dismiss portions of the
Third Amended Complaint. In particular, Defendants seek to
(1) strike paragraphs 39-42 and 46-49 of the Third Amended
Complaint for putatively violating the Court's previous
Order; (2) as an alternative to the first request, dismiss
paragraphs 39-42 and 46-49 of the Third Amended Complaint;
(3) dismiss the CUTSA claim; and (4) strike Connectus's
jury demand. Connectus responded in opposition.
court may strike from a pleading an insufficient defense or
any redundant, immaterial, impertinent, or scandalous
matter.” Fed.R.Civ.P. 12(f). A court may act sua sponte
or “on motion made by a party either before responding
to the pleading or, if a response is not allowed, within 21
days after being served with the pleading.”
Id. “Motions to strike are considered
‘drastic' and are disfavored by the courts.”
Gyenis v. Scottsdale Ins. Co., No.
8:12-cv-805-T-33AEP, 2013 WL 3013618, at *1 (M.D. Fla. June
14, 2013) (quoting Thompson v. Kindred Nursing Ctrs. E.,
LLC, 211 F.Supp.2d 1345, 1348 (M.D. Fla. 2002)).
motion to dismiss, this Court accepts as true all the
allegations in the complaint and construes them in the light
most favorable to the plaintiff. Jackson v. Bellsouth
Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004).
Further, this Court favors the plaintiff with all reasonable
inferences from the allegations in the complaint.
Stephens v. Dep't of Health & Human Servs.,
901 F.2d 1571, 1573 (11th Cir. 1990) (stating “[o]n a
motion to dismiss, the facts stated in [the] complaint and
all reasonable inferences therefrom are taken as
[w]hile a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a
plaintiff's obligation to provide the grounds of his
entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do. Factual allegations must be
enough to raise a right to relief above the speculative
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(internal citations omitted). Courts are not “bound to
accept as true a legal conclusion couched as a factual
allegation.” Papasan v. Allain, 478
U.S. 265, 286 (1986).
Jury Trial: Right and Waiver, in General
Seventh Amendment provides ‘[i]n Suits at common law,
where the value in controversy shall exceed twenty dollars,
the right of trial by jury shall be preserved.'”
Chauffeurs, Teamsters & Helpers, Local No. 391 v.
Terry, 494 U.S. 558, 564 (1990) (quoting U.S. Const.
amend. VII). A party may waive its right to a jury trial if
the waiver is knowing and voluntary. Bakrac, Inc. v.
Villager Franchise Sys., Inc., 164 Fed.Appx. 820, 823
(11th Cir. 2006). However, because of the historical
importance of this right, “any seeming curtailment . .
. should be scrutinized with the utmost care.”
Chauffers, 494 U.S. at 565 (internal citations
omitted). Furthermore, “because the right to a jury
trial is fundamental, courts must indulge every reasonable
presumption against waiver.” Burns v. Lawther,
53 F.3d 1237, 40 (11th Cir. 1995) (per curiam) (internal
Compliance with the Court's Order
argue that paragraphs 39-42 and 46-49 of the Third Amended
Complaint should be stricken for failure to comply with the
Court's January 20, 2017, Order. Connectus contends its
Third Amended Complaint fully complies with the Court's
pertinent part, the Second Amended Complaint brought a claim
for misappropriation of trade secrets under Florida law that
sought injunctive relief. (Doc. # 106 at 8-9). The Second
Amended Complaint also brought a stand-alone claim for
injunctive relief. (Id. at 11-13). Defendants moved
for judgment on the pleadings; in particular, DGS Edu sought
to have the trade-secrets claim dismissed for being
improperly brought under Florida law (Doc. # 114 at 21) and
Ampush sought to have the stand-alone claim for injunctive
relief dismissed (Doc. # 115 at 12-13). The Court agreed the
trade-secrets claim was improperly brought under Florida law,
but it also granted Connectus leave to replead the claim
under California law. (Doc. # 188 at 30). Further, while the
Court agreed the claim for injunctive relief could not stand
alone, the Court granted Connectus leave to include such a
claim to relief in its breach-of-contract claim.
review of the Third Amended Complaint shows that Connectus
merely transferred its allegations from the standalone claim
for injunctive relief as pled in the Second Amended Complaint
into the claims for misappropriation of trade secrets and
breach of contract as pled in the Third Amended Complaint.
Compare (Doc. # 106 at ¶¶ 66-69),
with (Doc. # 200 at ¶¶ 39-42, 46-49). The
trade-secrets claim as pled in the Second Amended Complaint
explicitly sought injunctive relief and Defendants were on
notice from the beginning of this action that Connectus would
be seeking injunctive relief, as well as the grounds for that
relief. (Doc. # 188 at 26-27). In light of the various
iterations of the complaint and the Court's January 20,
2017, Order, the Court finds that the Third Amended Complaint
complies with the Court's directive. Accordingly, the
Court declines to strike paragraphs 39-42 and 46-49 of the
Third Amended Complaint.
Round 1: Standing and ...