Opinion
CIVIL ACTION NO. 00-0465.
March 13, 2001.
ORDER AND REASONS
Before the Court is defendants' joint motion to strike plaintiff's demand for a jury trial. For the following reasons, the Court grants defendants' motion.
I. Background
Defendant Witco Corporation published a request for proposal to solicit bids for certain mechanical construction services at its plant in Taft, Louisiana. The winning bidder was plaintiff Pellerin Construction, Inc. Before beginning work in August 1998, Pellerin negotiated the terms of the mechanical construction services contract over a period of sixty to seventy-five days. (Defs.' Mem. Supp. Joint Mot. Strike, Ex. A, Vol. II at 295.) As a consequence of those negotiations, certain terms of the contract were revised, and Pellerin ultimately entered into a contract with Witco, acting through its agent, defendant Fluor Daniel. Pellerin's president, Oliver Soule, executed this contract on October 15, 1998.
The terms of the contract are contained in two volumes, each in excess of 400 pages. Among the terms is a jury waiver clause found in Volume I, Part III (General Terms-Standard), Article 50.0 (Trial). Article 50.0 provides:
Contractor hereby knowingly, voluntarily and intentionally waives (to the extent permitted by applicable law) any right it may have to a trial by jury of any dispute arising under or related in any way to this Contract and agrees that any such dispute may, at Company's or Owner's option, be tried before a judge sitting without a jury.
(Pl.'s Mem. Opp'n Def.'s Joint Mot. Strike, Ex. A, Part III at 25.)
Notwithstanding this jury waiver clause, Pellerin filed a demand for a jury trial on February 22, 2000. Defendants objected to this request for a jury trial in their answers and now move to strike plaintiff's request for jury trial. They argue that Pellerin knowingly and voluntarily waived its right to a jury trial. Pellerin opposes this motion, arguing the jury waiver provision is not conspicuous.
II. Discussion
Although the Seventh Amendment to the United States Constitution preserves a right to a jury trial in suits for breach of contract, it is well established that a private party may waive that right. See Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 848, 106 S.Ct. 3245, 3255 (1986); Rideau v. Parkem Indus. Servs., Inc., 917 F.2d 892, 896 (5th Cir. 1990); Westside-Marrero Jeep Eagle, Inc. v. Chrysler Corp., 56 F. Supp.2d 694, 706 (E.D. La. 1999). Notwithstanding a party's ability to waive a jury trial, courts will indulge every reasonable presumption against waiver because the right to a jury trial is fundamental. See Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 811-12 (1937).
A party may waive its right to a jury trial only if it does so "voluntarily" and "knowingly." See D.H. Overmyer Co. v. Frick Co., 405 U.S. 174, 185-86, 92 S.Ct. 775, 782 (1972); Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 1247 (1966). See also Simler v. Conner, 372 U.S. 221, 222, 83 S.Ct. 609, 610 (1963) (applying federal law to determine whether party waived its right to jury trial when court exercises diversity jurisdiction). To determine whether Pellerin's waiver was made knowingly and voluntarily, courts consider: (1) whether the terms of the contact were negotiable, (2) the conspicuousness of the jury waiver provision, (3) the relative bargaining power of the parties, (4) whether Pellerin was represented by counsel, and (5) Pellerin's business acumen. See Westside-Marrero Jeep Eagle, 56 F. Supp.2d at 707 (citing cases).
After considering these factors, the Court finds that Pellerin voluntarily and knowingly waived its right to a jury trial. First, Pellerin's President, Oliver Soule, confirmed in his deposition that the company negotiated the terms of the contract for sixty to seventy-five days. (Def a.' Mem. Supp. Joint Mot. Strike, Ex. A, Vol. II at 295.) Second, despite plaintiff's assertions to the contrary, the waiver clause was sufficiently conspicuous. Although the contract is voluminous, the waiver clause is contained in an independent article, identified in the table of contents as "trial," and logically located in Part III of the contract, which delineates the governing general terms. Furthermore, the waiver is printed in the same legible and standard-size type as all the other contractual provisions, and the terms of the waiver are clear and definite. See, e.g., Westside-Marrero Jeep Eagle, 56 F. Supp.2d at 708. Cf. National Equip. Rental, Ltd. v. Hendrix, 565 F.2d 255, 258 (1977) (finding waiver buried in eleventh paragraph of fine print, sixteen clause lease agreement to be set deeply and inconspicuously). Third, there is no gross inequality in bargaining power. Pellerin voluntarily bid on this contract and was free to reject the deal. Moreover, Pellerin presents no evidence of any extreme bargaining disadvantage. The Court does not find the fourth factor to be as probative as the other factors. While Pellerin was represented by counsel at the time of contracting, that counsel did not review this contract. See Westside-Marrero Jeep Eagle, 56 F. Supp.2d at 708. Fifth, as a licensed general contractor with substantial experience in the construction industry, Pellerin has sufficient business acumen to understand the import of this jury waiver provision. Therefore, the Court finds that Pellerin voluntarily and knowingly waived its right to a jury trial.
III. Conclusion
For the foregoing reasons, the Court grants defendants' joint motion to strike plaintiff's demand for a jury trial.