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Kinzel v. Bank of America

United States District Court, Sixth Circuit

August 30, 2013

Richard L. Kinzel, et al., Plaintiffs
Bank of America, et al., Defendants


JEFFREY J. HELMICK, District Judge.


Before me is the motion of Defendants Merrill Lynch Bank U.S.A., et al., to strike the jury demand made by Plaintiffs Richard L. Kinzel, individually and as trustee of the Richard L. Kinzel Revocable Trust, and Judith A. Kinzel, individually and as trustee of the Judith A. Kinzel Revocable Trust. (Doc. No. 104). Plaintiffs have filed a brief in opposition. (Doc. No. 106). Defendants filed a brief in reply. (Doc. No. 119). For the reasons stated below, Defendants' motion is granted.


On April 15, 2008, Plaintiffs entered into a Loan Management Account Agreement (the "LMA Agreement") with Merrill Lynch. (Doc. No. 1-1). Plaintiffs filed suit on September 27, 2010, alleging, inter alia, Defendants "failed to exercise good faith and fair dealing" with respect to their duties and obligations under the LMA Agreement. (Doc. No. 36 at 19). In their complaint, Plaintiffs demanded a jury. (Id. at 24).

The LMA Agreement contains the following provision: "[t]o the extent allowed by law, each Loan Party waives all right to a jury trial with respect to any action or dispute relating to the LMA or this Agreement." (Doc. No. 1-1 at 9). Defendants argue "Plaintiffs knowingly and voluntarily agreed to waive their right to a jury trial [and]... [t]herefore Plaintiffs' demand for a jury trial should be stricken." (Doc. No. 104 at 4). Plaintiffs contend (1) Defendants' motion to strike should be denied because it is untimely; (2) the Kinzels as individuals did not sign the LMA Agreement and never waived their right to a jury trial; (3) the Kinzels as trustees did not have the authority to waive a jury trial on behalf of the beneficiaries of the trusts; and (4) they did not knowingly and voluntarily waive their right to a jury trial. (Doc. No. 106).


In part, the Seventh Amendment guarantees the right to a jury trial in civil cases where a plaintiff seeks a remedy for a legal injury. The right to a jury trial may be waived. Preferred RX, Inc. v. Am. Prescription Plan, Inc., 46 F.3d 535, 548 (6th Cir. 1995). The categories of enforceable waivers include those made "by prior written agreement" by "the parties to a contract." K.M.C. Co., Inc. v. Irving Trust Co., 757 F.2d 752, 755 (6th Cir. 1985). "[I]n the context of an express contractual waiver the objecting party [has] the burden of demonstrating that its consent to the provisions was not knowing and voluntary." Id. at 758. The Sixth Circuit has identified the following factors for use in determining whether a waiver of the right to a jury trial has been knowing and voluntary:

(1) plaintiff's experience, background, and education; (2) the amount of time the plaintiff had to consider whether to sign the waiver, including whether the employee had an opportunity to consult with a lawyer; (3) the clarity of the waiver; (4) consideration for the waiver; as well as (5) the totality of the circumstances.

Hergenreder v. Bickford Senior Living Group, LLC, 656 F.3d 411, 420-21 (6th Cir. 2011) ( citing Morrison v. Circuit City Stores, Inc., 317 F.3d 646, 669 (6th Cir. 2003) (en banc)).



Defendants moved to strike Plaintiffs' jury demand pursuant to Rule 39, which provides "trial on all issues so demanded must be by jury unless... the court, on motion or on its own, finds that on some or all of those issues there is no federal right to a jury trial." Fed.R.Civ.P. 39(a)(2). Plaintiffs argue Defendants' motion is untimely under Rule 12(f). This Rule states a court, on its own or by motion, "may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). A motion filed under this Rule must be made "either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading." Fed.R.Civ.P. 12(f)(2). Plaintiffs do not identify what exactly it is about their jury demand that might be considered redundant, immaterial, impertinent, or scandalous, or how the jury demand might be construed as an insufficient defense.

Though this issue rarely arises, other federal courts consistently "have cited and applied [Rule 39(a)] in decisions striking a jury demand because the right to a jury trial, having been contractually waived, no longer existed." Mowbray v. Zumot, 536 F.Supp.2d 617, 621 (D. Md. 2008); see also Tracinda Corp. v. DaimlerChrysler AG, 502 F.3d 212, 226-27 (3rd Cir. 2007) (motion to strike jury demand was permissible under Rule 39(a) even though the motion was filed after the close of discovery, only six weeks before trial, eight months after motions for summary judgment were filed, and three years after the complaint). Cf. Moore's Federal Practice, ยง 39.13(2)(c) (3d ed. 2007) ("Parties have a great deal of latitude on the timing of motions to strike a jury demand. Because a court has the power to act sua sponte at any ...

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