United States District Court, S.D. Alabama, Southern Division
K. DUBOSE CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants' Motion to
Strike Jury Demand and Transfer to Court's Non-Jury
Docket (Doc. 65), Plaintiffs' Position Statement
Regarding Jury Trial (Doc. 66), and Defendants' Reply
General Release (executed in conjunction with the settlement
19. Venue; Waiver of Jury Trial. Any litigation
between the parties arising out of or related to this
Agreement shall be brought, maintained and pursued only in
state or federal courts located in Mobile County, Alabama.
Each party waives any right to a trial by
jury with regard to any claims, defenses, or
liabilities arising out of or relating to this Agreement.
(Doc. 46-1 at 5 at ¶19 (emphasis added); Doc. 48-1 at 1
at ¶1). However, the Rule 16(b) Scheduling Order
indicates that this case is presently scheduled for a jury
trial per Defendants' demand for same in its post-removal
Answer (Doc. 2 at 1) and Plaintiffs demand for a jury trial
in the original complaint filed in the Circuit Court of
Baldwin County, Alabama (Doc. 1-1 at 1-2, 10, 13). (Doc. 31).
On August 19, 2019, the parties were ordered to clarify for
the Court whether this case should be a jury or a
non-jury (bench) trial. (Doc. 63). In response Plaintiffs
contend this case should remain set for a jury trial and
Defendants contend this case should be removed from the jury
trial docket and proceed as a non-jury (bench) trial.
consideration, the Court finds that this action shall remain
set for a jury trial because the Parties have waived their
contractual right to a non-jury trial. The history of the
case supports this conclusion and reveals the parties
consistently elected to proceed via jury trial:
• Plaintiffs' 2/3/18 state court complaint demanded
jury trial (Doc. 1-1 at 1, 2, 10, 13);
• Defendants' 3/9/18 answer demanded a jury trial
(Doc. 2 at 1);
• Defendants' 3/29/18 amended answer demanded a jury
trial (Doc. 5 at 1);
• The Parties' 8/22/18 Rule 26 Report requested jury
trial (Doc. 27 at 5); and
• The 9/18/18 Rule 16(b) Scheduling Order set the case
for jury trial (Doc. 31).
parties have thus been litigating this case with the mutual
understanding that this is as a jury trial action since
February 3, 2018 -- for the past 18 months.
can waive a contractual right to a non-jury by evincing an
intention of doing so - either through conduct, acts, or
circumstances that manifest waiver in some unequivocal
manner, or by expressly doing so (e.g., requesting the right
to a jury trial in complaint). As explained in Ex parte
Spencer, 111 So.3d 713, 717-718 (Ala. 2012):
It is a well established principle of Alabama law that
“[p]arties are free to contract as they will, provided
they contract within the law.” Perkins v.
Skates, 220 Ala. 216, 218, 124 So. 514, 515
(1929)…. a party may waive its right to ...