Harbor Communications, LLC v. Southern Light, LLC

          ORDER

          KRISTI K. DUBOSE CHIEF UNITED STATES DISTRICT JUDGE

         This 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 (Doc. 69).

         The General Release (executed in conjunction with the settlement agreement) provides:

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.

         Upon 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).

         The 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.

         A party 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 ...