United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (MOTION FOR JURY TRIAL)
E. Hudson United States District Judge.
MATTER is before the Court on Plaintiffs Vishal Patel's
("Patei") and Nadiad, Inc.'s
("Nadiad") "Motion To Recognize That Case Was
To Be Set On State Court Jury Docket Prior To Removal"
(ECF No. 10) in which Plaintiffs ask this Court to
"enter an Order that the case was removed as a case to
be tried by a jury." The Court construes Plaintiffs'
Motion as seeking to have this case tried by a jury. For the
reasons set forth below, the Court will deny Plaintiffs'
February 22, 2016, Defendants Quick-Way Retail Associates II,
Empire Petroleum Partners, and Sunoco North Carolina
Acquisitions II (collectively "Defendants") removed
this case from the Circuit Court for the City of Richmond to
this Court. On May 5, 2016, the Court held an initial
pretrial conference with the parties. Because neither the
Complaint nor the Counterclaims contained any jury demand,
this Court set the case for a bench trial. The Court informed
counsel for Plaintiffs that should they wish to have this
matter tried by a jury, counsel could file a motion seeking
represent that shortly after filing of the Complaint in
Circuit Court for the City of Richmond, counsel noticed that
a demand for a jury trial had been inadvertently omitted. On
January 27, 2016, Plaintiffs mailed a
"request/demand" for a jury trial to the clerk of
court, which was received on February 1, 2016. Plaintiffs had
the "request/demand" served on Defendants'
registered agents between February 3, 2016, and February 5,
2016. Accordingly, Plaintiffs believe that they timely and
properly set the case for a jury trial in state court.
argue that "[i]f the case was on the correct tract to be
on the jury docket in state court, then that is the stage at
which the case was removed and the compliance with state law
should be binding on the District Court." Defendants
oppose Plaintiffs' Motion on two grounds. First,
Defendants argue that Plaintiffs have failed to comply with
the Federal Rules of Civil Procedure in making a jury demand.
Alternatively, even if Plaintiffs properly made a jury
demand, any demand is inappropriate because Plaintiffs waived
their right to a jury. The Court agrees that even assuming,
arguendo, Plaintiffs made a jury demand, they have
waived their right to a jury in this matter.
Complaint in this case focuses on three contracts executed by
the parties in connection with the operation of a gas station
and convenience store in Ashland, Virginia. Nadiad, by Patel,
and Sunoco North Carolina Acquisition II, by Empire Petroleum
Partners, entered into a Lease Agreement (ECF No. 13-2) for
the property in Ashland. Nadiad, by Patel, and Quick Way
Retail Associates II, executed a Consignment Agreement (ECF
No. 13-3) for the consignment and distribution of petroleum
products. Finally, Patel signed a Personal Guaranty (ECF No.
13-4) in which he personally guaranteed Nadiad's
obligations under the Lease Agreement and the Consignment
Agreement. Each contract contains a provision that the
parties agreed to waive their right to a jury trial in
connection with disputes arising out of the agreements. Count
I alleges Defendants fraudulently induced Plaintiffs to enter
into the contracts generally. Count II seeks punitive
Seventh Amendment guarantees a right to a jury trial in civil
cases. U.S. Const, amend. VII. A party, however, may waive this
right by contract. Leasing Serv. Corp. v.
Crane, 804 F.2d 828, 832 (4th Cir. 1986). To
constitute a valid waiver, it must be knowing, intentional,
voluntarily, and informed. Id. at 832-33. Courts
consider the parties' negotiations concerning the waiver,
the relative bargaining power of the parties, the
conspicuousness of the provision in the contract, and whether
the waiving party's counsel had an opportunity to review
the agreement. Zaklit v. Global Linguist
Solutions, LLC, 53 F.Supp. 3d 835, 855 (E.D. Va. 2014).
the parties do not appear to have had any substantive
discussion regarding the inclusion of the jury trial waiver
provisions. The parties also appear to have been on about
equal footing with regard to such negotiations.
argue the parties were not coequals during the bargaining
process, characterizing the contracts as ones of adhesion.
(Pis.' Resp. to Defs.' New Mot. Contained in
Defs.' Resp. to Pis. [sic] Simple Mot. to Recognise [sic]
the Jury Status of the Removed Case in Virginia State Court
("Pis.' Resp.") 7, ECF No. 15.) "Under
Virginia law, a contract of adhesion is a standard form
contract, prepared by one party and presented to a weaker
party, usually a consumer, who has no bargaining power and
little or no choice about the terms." Green v.
Zachry Indus., Inc., 36 F.Supp. 3d 669, 676 (W.D. Va.
2014) (quoting Philyaw v. Platinum Enters.,
Inc., 54 Va. Cir. 364, 366 (2001)) (internal quotation
marks omitted). Take-it-or-leave-it terms, however, do not
render a jury waiver provision invalid per se. See
Dunkin' Donuts Franchised Rests. LLC v. Manassas
DonutInc., 2008 WL 110474, at *2 (E.D. Va. Jan. 8, 2008)
("Courts have found waivers knowing and voluntary even
in the context of franchise agreements, where contractual
terms are often non-negotiable and where there may be a
slight disparity of bargaining power between the
Plaintiff characterizes the relationship of the parties as
one between an unsophisticated convenience store clerk and
sophisticated corporations. Plaintiffs, however, were not
under any obligation to enter into the contracts, and Patel
could have remained employed elsewhere rather than simply
signing the contracts and attempting to start a business.
each waiver appears conspicuously within each contract. While
most of the Lease Agreement appears to be in the same font
and size with bolding sporadically throughout, that contract
sets out the jury trial waiver provision in all capital
letters and bolded text. The Personal Guaranty presents its
jury trial waiver provision in the same manner. Although not
bolded, the Consignment Agreement similarly sets forth the
waiver of jury trial in all capital letters.
each jury trial waiver specifically acknowledges that the
parties "had the opportunity to discuss this [agreement]
with legal counsel." Moreover, the Personal Guaranty
contains this statement on the same page as and immediately
above Patel's signature. Despite Plaintiffs'
unsupported protestation that they were not afforded the
opportunity to confer with legal counsel, the contracts
state-one directly above Patel's signature-that
Plaintiffs did. If Plaintiffs ultimately chose not to confer
with counsel, they did so at their own peril. Taken together,
the Court finds that the parties knowingly, intentionally,
and voluntarily waived their right to a jury trial under
the factors show that Plaintiffs voluntarily waived their
right to a jury trial and Plaintiffs do not attack the
specific waiver provisions' inclusion as the subject of
fraud, Plaintiffs state that "[i]f it should be found
that plaintiffs have a duty to make a specific written
allegation in the Complaint that the inclusion of the waivers
... are a part of the fraudulent scheme of the defendants,
plaintiffs proffer the motion to add that allegation to their
Complaint." (Pis.' Resp. 4.) Notwithstanding that
Plaintiffs failed to attempt to make such an argument until
their fourth filing related to their original Motion, as
stated by Plaintiff:
Of course a neophyte, not really a person in business but a
convenience store employee[, ] could be induced to leap at
the chance to try his hand at a business that was claimed to
have average production of inside sales, less lottery and
fuel, of $75, 000 per ...