IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

VONEKA Q. NETTLES, et al., )

 )

Plaintiffs, )

)

v. ) CIVIL ACTION 13-0605-WS-C

 )

DAPHNE UTILITIES, )

 )

Defendant. )

ORDER

This matter comes before the Court on Defendant’s Motion to Strike Jury Demand (doc. 

22). The Motion has been briefed and is now ripe for disposition.

I. Background.

Plaintiffs, Voneka Q. Nettles, Carlos Butler, and Cedric Goodloe, brought this action 

against defendant, Daphne Utilities, asserting claims of employment discrimination and 

retaliation pursuant to Title VII and 42 U.S.C. § 1981, as well as due process claims pursuant to 

42 U.S.C. § 1983. The Amended Complaint (doc. 6) filed on January 10, 2014 included an 

unequivocal jury demand. Daphne Utilities filed an Answer (doc. 9) on February 7, 2014, 

purporting to enumerate nearly two dozen affirmative defenses, but saying nothing about the jury 

demand. A Rule 16(b) Scheduling Order (doc. 15) was entered on April 4, 2014, fixing various 

case management deadlines, including a discovery cutoff of November 14, 2014 and a jury trial 

setting of May 2015.

Of some significance to the pending Motion to Strike, Daphne Utilities filed a motion to 

sever each plaintiff’s claims into a separate lawsuit on April 2, 2014. In support of that motion, 

defendant argued that “Plaintiffs’ claims involve different factual scenarios, concern the actions

of different supervisors, and involve events occurring on different dates. ... The discrimination 

claims will depend on different evidence for each plaintiff.” (Doc. 13, at 6-7.) On that basis, 

Daphne Utilities contended that the legal threshold under Rule 20(a), Fed.R.Civ.P., for joinder of 

parties was not met. Defendant further reasoned that the interests of judicial economy would be 

Case 1:13-cv-00605-WS-C Document 29 Filed 08/05/14 Page 1 of 6
-2-

disserved by trying the three plaintiffs’ claims together because the underlying facts and 

evidence concerning each plaintiff’s case were different. (Doc. 13, at 8.) In a single paragraph 

of its nine-page supporting brief, Daphne Utilities alleged that it would incur prejudice “if 

evidence of other instances of alleged discrimination are presented to the jury on each Plaintiffs’ 

[sic] claim.” (Id. (emphasis added).) Based on these arguments, Daphne Utilities requested that 

each plaintiff be required to prosecute his or her claims in a separate lawsuit or, alternatively, 

that each plaintiff’s claims be tried separately in this lawsuit because of the differing facts and 

witnesses relating to each plaintiff’s claims. (Id. at 9.) For their part, plaintiffs did not oppose 

Daphne Utilities’ request that a separate trial be convened for each plaintiff’s claims; to the 

contrary, plaintiffs readily acknowledged that “it is clear the claims of each plaintiff are factually 

distinct and do not arise from the same occurrence or series of occurrences.” (Doc. 16, at 1.) On 

April 28, 2014, the Court entered an Order (doc. 18) declining to fracture this case into three 

separate lawsuits but granting defendant’s unopposed request that each plaintiff’s claims be tried 

separately, pursuant to Rule 42(b), Fed.R.Civ.P.

On June 23, 2014, Daphne Utilities filed a Motion to Strike Jury Demand with respect to 

plaintiffs Voneka Q. Nettles and Carlos Butler, but not plaintiff Cedric Goodloe. As grounds for 

the Motion to Strike, defendant relies on a one-page employee handbook agreement, separate 

copies of which were signed by Nettles and Butler, bearing the heading “Acknowledgement and 

Waiver of Right to Trial by Jury” (the “Jury Waiver”). That document includes a bold-type, allcaps paragraph reading, in pertinent part, as follows: “I acknowledge and agree that in the event 

I seek the involvement of a court of law, I expressly waive any and all rights to a trial by jury. 

Instead, I agree that if I pursue legal action in a court of competent jurisdiction, any and all 

matters related to my employment will be resolved by a judge.” (Doc. 23, Exhs. A & B.) 

Defendant shows that Nettles signed her copy of this Jury Waiver on November 23, 2010, and 

that Butler signed his copy of the Jury Waiver on December 17, 2010. (Id.) Daphne Utilities 

now seeks to enforce these Jury Waivers against Nettles and Butler by striking their demand for 

a jury trial. Nettles and Butler oppose the Motion.

II. Analysis.

As a matter of black-letter law, “[t]he right of trial by jury as declared by the Seventh 

Amendment to the Constitution ... is preserved to the parties inviolate.” Rule 38(a), 

Fed.R.Civ.P. Nonetheless, a civil litigant may validly waive its right to a jury trial. See, e.g., 

Case 1:13-cv-00605-WS-C Document 29 Filed 08/05/14 Page 2 of 6
-3-

Venture Tape Corp. v. McGills Glass Warehouse, 540 F.3d 56, 62 (1st Cir. 2008) (“the right to a 

jury trial can be waived”); Preferred RX, Inc. v. American Prescription Plan, Inc., 46 F.3d 535, 

548 (6th Cir. 1995) (“The right to trial by jury, even though grounded in both federal and state 

constitutional provisions, is a right subject to waiver.”). Contractual waivers of a person’s right 

to a jury trial are routinely deemed enforceable, provided that they are knowing and voluntary. 

See, e.g., Bakrac, Inc. v. Villager Franchise Systems, Inc., 2006 WL 41282, *3 (11th Cir. Jan. 6, 

2006) (“A party may validly waive its Seventh Amendment right to a jury trial so long as the 

waiver is knowing and voluntary.”) (citations omitted).1

Nettles and Butler do not suggest that the agreements they signed in Daphne Utilities’ 

favor waiving their right to jury trial are unenforceable. They do not contend that their Jury 

Waivers were unknowing, involuntary or otherwise invalid. They do not assert that the waiver 

terms were inconspicuous, that they lacked bargaining power with Daphne Utilities, that they 

were unsophisticated and did not understand what they were signing, or that they were forced to 

sign the Jury Waivers against their will. Instead, Nettles’ and Butler’s sole objection to 

defendant’s Motion to Strike Jury Demand relates to the timing of the Motion, with plaintiffs 

complaining that defendant waited “over six months after being served with the complaint[].” 

(Doc. 27, at 1.)

To the extent that Nettles and Butler balk that Daphne Utilities should not be permitted to 

challenge their jury demand “at this late stage of the case” (doc. 27, at 2), their objection is not 

well-taken. After all, numerous courts have concluded that a defendant may move to strike a 

jury demand at any time, even late in the lifespan of a lawsuit. See, e.g., Tracinda Corp. v. 

DaimlerChrysler AG, 502 F.3d 212, 226-27 (3rd Cir. 2007) (concluding that “a party may file a 

motion to strike a jury demand at any time under Rule 39(a),” and finding that defendant’s 

motion was not untimely even though it was filed three years after plaintiff made jury demand); 

 1 See also New Skies Satellites, B.V. v. Home2US Communications, Inc., --- F. 

Supp.2d ----, 2014 WL 1292218, *12 (D.N.J. Mar. 28, 2014) (“To be valid, a contractual waiver 

of the right to a jury must be voluntary and knowing.”); Avants v. Prospect Mortg., LLC, 987 F. 

Supp.2d 1218, 1221 (D.N.M. 2013) (“Agreements waiving the right to trial by jury are neither 

illegal nor contrary to public policy. ... Jury waiver provisions are enforceable if they are 

knowing and voluntary.”) (citations omitted); Madura v. BAC Home Loans Servicing L.P., 851 

F. Supp.2d 1291, 1294 (M.D. Fla. 2012) (“it is beyond dispute that a party may waive his right to 

a jury trial so long as the waiver is knowing and voluntary”).

Case 1:13-cv-00605-WS-C Document 29 Filed 08/05/14 Page 3 of 6
-4-

Mowbray v. Zumot, 536 F. Supp.2d 617, 621 (D. Md. 2008) (“it is well-established that a party 

(or the Court on its own initiative) may move to strike a jury demand at any time, even on the 

eve of trial”); Jones-Hailey v. Corporation of Tennessee Valley Authority, 660 F. Supp. 551, 553

(E.D. Tenn. 1987) (explaining that applicable rule “contains no time limit within which 

[defendant] was required to object to [plaintiff’s] jury demand”); Shaw v. Prudential Ins. Co. of 

America, 2012 WL 432874, *7 (W.D. Mo. Feb. 9, 2012) (“A motion to strike a jury demand can 

be made at any time.”); Acciard v. Whitney, 2011 WL 4902972, *3 (M.D. Fla. Oct. 13, 2011) 

(rejecting notion “that a party automatically waives the right to enforce a jury trial waiver after 

exhibiting specific conduct or waiting for a defined amount of time”). Besides, it is not accurate 

to say that Daphne Utilities filed its Motion to Strike at a “late stage” of these proceedings. The 

discovery cutoff is more than three months away, and the May 2015 trial setting is barely 

perceptible on the horizon at this time. To the extent, then, that plaintiffs rely on a laches / 

excessive delay theory, their opposition to the Motion to Strike Jury Demand is meritless.

Nettles and Butler classify their objection as arising under the doctrine of judicial 

estoppel. In particular, plaintiffs point to the motion to sever, in which Daphne Utilities

expressed concern that it would incur prejudice “if evidence of other instances of alleged 

discrimination are presented to the jury.” (Doc. 27, at 1.) In plaintiffs’ view, the Motion to 

Strike Jury Demand is inconsistent with Daphne Utilities’ position on the motion to sever, which 

cited the potentially prejudicial impact on a jury of trying plaintiffs’ claims together.

“The purpose of judicial estoppel is to protect the integrity of the judicial process by 

prohibiting parties from changing positions according to the exigencies of the moment.” 

Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1273 (11th Cir. 2010) (citation and internal 

quotation marks omitted); see also City of Riviera Beach v. That Certain Unnamed Gray, Two 

Story Vessel Approximately Fifty-Seven Feet in Length, 649 F.3d 1259, 1273 (11th Cir. 2011) 

(“Judicial estoppel is designed to prevent parties from making a mockery of justice by 

inconsistent pleadings.”) (citation and internal quotation marks omitted). The decision to apply

this equitable doctrine is vested in the discretion of the trial court. See Stephens v. Tolbert, 471 

F.3d 1173, 1177 (11th Cir. 2006). In exercising that discretion, courts traditionally look at the 

following factors: “(1) whether a later position asserted by a party was clearly inconsistent with 

an earlier position; (2) whether a party succeeded in persuading a court to accept an earlier 

Case 1:13-cv-00605-WS-C Document 29 Filed 08/05/14 Page 4 of 6
-5-

position ...; and (3) whether the party with an inconsistent position would derive an unfair 

advantage or impose an unfair treatment on the opposing party if not estopped.” Id.

None of these factors favor imposition of judicial estoppel to block Daphne Utilities’ 

Motion to Strike Jury Demand. First, there is no clear inconsistency between defendant’s 

position on the motion to sever and that of the current Motion. In the motion to sever, defendant 

merely acknowledged the reality that, at that time, plaintiffs’ claims were subject to a jury 

demand and the case had been set for jury trial. Defendant neither urged the Court to accept that 

jury demand, nor made any representations as to its propriety. Certainly, Daphne Utilities never 

agreed on the record to a jury trial or opined that a jury trial was appropriate; therefore, its 

present position that Nettles and Butler have waived their right to jury trial is not clearly 

inconsistent with its previous position. Second, Daphne Utilities never persuaded this Court to 

accept an earlier position that a jury trial was warranted here, and the Court never made any 

findings or determinations in reliance on Daphne Utilities’ earlier position. In granting Daphne 

Utilities’ motion to sever, the Court relied heavily on plaintiffs’ acquiescence to same, not 

defendant’s cursory mention of the possibility of jury confusion. Nothing Daphne Utilities said 

or did misled the Court in the context of the motion to sever. Third, and most importantly here, 

no unfair advantage would accrue to Daphne Utilities at plaintiffs’ expense by allowing it to 

pursue its Motion to Strike Jury Demand. Again, defendant’s motion to sever the three 

plaintiffs’ claims for trial was granted largely because plaintiffs agreed with it, not because 

Daphne Utilities made passing reference to the possibility of jury confusion. Nor have Nettles 

and Butler shown that they would be prejudiced or disadvantaged in any way, shape or form by 

allowing Daphne Utilities to challenge their jury demand at this time.2

 2 If anything, the argument for separate trials is rendered even more compelling in a 

scenario where Nettles and Butler have waived their jury trial right but plaintiff Goodloe has not. 

Under the circumstances, conducting separate trials (as defendant requested in its earlier motion) 

appears to be the only reasonable means of accommodating Goodloe’s right to trial by jury while 

enforcing the waivers by plaintiffs Nettles and Butler. The point is that plaintiffs have not been 

unfairly disadvantaged by Daphne Utilities’ course of conduct vis a vis plaintiffs’ jury demand. 

Nor is plaintiffs’ argument strengthened by their contention that defendant “agreed to their [jury] 

demand because, in its answer, it did not object, or raise the issue as an affirmative defense.” 

(Doc. 27, at 2.) A defendant’s failure to challenge a jury demand via responsive pleading is 

neither required by the Federal Rules of Civil Procedure nor “clearly inconsistent” with a later 

Motion to Strike Jury Demand. Nothing obligated Daphne Utilities to move to strike the jury 

(Continued)

Case 1:13-cv-00605-WS-C Document 29 Filed 08/05/14 Page 5 of 6
-6-

In short, the Court finds that Daphne Utilities has not made a mockery of the judicial 

process or flip-flopped positions based on the exigencies of the moment. As such, the doctrine 

of judicial estoppel has no application here. Plaintiffs having agreed to separate trials, and those 

trials being more than nine months away, there is nothing prejudicial, unfair or unjust about 

Daphne Utilities’ conduct in filing the Motion to Strike Jury Demand at this time.

III. Conclusion.

Defendant has shown that plaintiffs Voneka Q. Nettles and Carlos Butler knowingly and 

voluntarily waived their Seventh Amendment right to trial by jury as to their claims against 

Daphne Utilities. Plaintiffs have not challenged the validity of those waivers, and their reliance 

on the doctrine of judicial estoppel is unavailing. Accordingly, the Motion to Strike Jury 

Demand (doc. 22) is granted. The jury demand articulated by plaintiffs Nettles and Butler is 

stricken from the pleadings, and their claims will proceed to non-jury trial in the May 2015 

civil term. Plaintiff Cedric Goodloe’s jury demand remains in full force and effect as to his 

claims against Daphne Utilities, and those claims remain set for jury trial in the May 2015 civil 

term.

DONE and ORDERED this 5th day of August, 2014.

s/ WILLIAM H. STEELE 

CHIEF UNITED STATES DISTRICT JUDGE

 

demand in its initial pleading or forever hold its peace; therefore, defendant’s silence at that 

juncture cannot give rise to a persuasive argument that it is judicially estopped from filing its 

Motion now.

Case 1:13-cv-00605-WS-C Document 29 Filed 08/05/14 Page 6 of 6