United States District Court, D. Nebraska
DAB, INCORPORATED, a Nebraska Corporation; NCS TRANSPORTATION, INC., a Nebraska Corporation; CAROL A. BENSON, AND MARVIN D. BENSON, Plaintiffs,
SUNBELT RENTALS, INC., a North Carolina Corporation; Defendant.
MEMORANDUM AND ORDER
R. ZWART UNITED STATES MAGISTRATE JUDGE.
matter is before the court on the Motion to Strike
Plaintiff's Jury Demand filed by Defendant Sunbelt
Rentals Inc. (Filing No. 14). For the following
reasons, the motion will be granted.
Sunbelt is a rental equipment company located in South
Carolina. (Filing No. 1 ¶ 6). Plaintiffs DAB
Inc. (“DAB”) and NCS Transportation, Inc.
(“NCS”) are equipment rental companies located in
Nebraska. (Filing No. 1). DAB and NCS are owned by
Plaintiffs Marvin Benson and Carol Benson, respectively.
(Filing No. 1 ¶¶ 4, 5). Defendant and
Plaintiffs negotiated a purchase agreement for the sale of
DAB and NCS assets to Sunbelt. The resulting Asset Purchase
Agreement (“Purchase Agreement”), which was
entered into by the parties on December 16, 2014, (Filing
No. 1-1), required certain funds to be held in escrow
according to an Escrow Agreement. (Filing No. 1-1 at
CM/ECF p. 12). The Escrow Agreement was attached to the
Purchase Agreement as an exhibit and was expressly
incorporated into the terms of the Purchase Agreement.
(See Filing No. 1-1 at CM/ECF pp. 1, 8;
Filing No. 20 ¶ 4).
December 16, 2014, the Purchase Agreement was executed and
signed by Kurt Kenkel, as Executive Vice President to
Sunbelt, Marvin Benson both as the President of DAB and as
its shareholder, and Carol Benson both as the President of
NCS and as its shareholder. According to the terms of the
Purchase Agreement, the Escrow Agreement was to be executed
on January 2, 2015. The Escrow Agreement was signed by Kurt
Kenkel as Executive Vice President to Sunbelt, Marvin Benson
as the President of DAB, Carol Benson as the President of
NCS, and by Allison Lancaster-Poole as the Escrow Agent.
(Filing No. 15-2 at CM/ECF pp. 13- 14).
Escrow Agreement contains the following jury waiver
27. WAIVER OF TRIAL BY JURY. EACH PARTY TO THIS
ESCROW AGREEMENT HEREBY WAIVES ANY RIGHT THAT IT MAY HAVE TO
A TRIAL BY JURY ON ANY CLAIM, COUNTERCLAIM, SETOFF, DEMAND,
ACTION OR CAUSE OF ACTION (1) ARISING OUT OF OR IN ANY WAY
RELATED TO THIS ESCROW AGREEMENT OR (2) IN ANY WAY IN
CONNECTION WITH OR PERTAINING OR RELATED TO OR INCIDENTAL TO
ANY DEALINGS OF THE PARTIES TO THIS ESCROW AGREEMENT OR IN
CONNECTION WITH THIS ESCROW AGREEMENT OR THE EXERCISE OF ANY
SUCH PARTY'S RIGHTS AND REMEDIES UNDER THIS ESCROW
AGREEMENT OR THE CONDUCT OR THE RELATIONSHIP OF THE PARTIES
TO THIS ESCROW AGREEMENT, IN ALL OF THE FOREGOING CASES
WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER IN
CONTRACT, TORT OR OTHERWISE. EACH OF THE PARTIES HERETO
HEREBY FURTHER ACKNOWLEDGES AND AGREES THAT EACH HAS REVIEWED
OR HAD THE OPPORTUNITY TO REVIEW THIS WAIVER WITH ITS
RESPECTIVE LEGAL COUNSEL, AND THAT IT KNOWINGLY AND
VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH SUCH LEGAL COUNSEL. IN THE EVENT OF
LITIGATION, THIS ESCROW AGREEMENT MAY BE FILED AS A CONSENT
BY ALL PARTIES TO A TRIAL BY THE COURT.
(Filing No. 15-2 at CM/ECF p. 12) (capitalization in
original). This waiver provision was a separately numbered
paragraph of the Escrow Agreement and printed in all capital
DAB, NCS, Carol Benson, and Marvin Benson filed their
complaint against Defendant Sunbelt on September 16, 2016.
(Filing No. 1). In the Complaint, Plaintiffs assert
a single claim for breach of contract, alleging the defendant
breached the Purchase Agreement by failing to pay for certain
assets. (Filing No. 1). Defendant has filed a
counterclaim against Plaintiffs alleging a breach of the
Purchase Agreement claiming Plaintiffs have failed to pay
Sunbelt for certain defective or missing equipment.
(Filing No. 13).
right to a jury trial is guaranteed in certain civil cases
under the Seventh Amendment of the United States
Constitution. Fed. R. Civ. P. 38(a) provides
“[t]he right of a trial by jury as declared by the
Seventh Amendment . . . shall be preserved to the parties
inviolate.” However, this right may be waived, either
expressly or impliedly. Bostic v. Goodnight, 443
F.3d 1044, 1047 (8th Cir. 2006); Northwest Airlines, Inc.
v. Air Line Pilots Ass'n, Int'l, 373 F.2d 136,
142 (8th Cir. 1967). An express waiver of the right to a jury
trial may occur by contract. See Northwest Airlines,
Inc., 373 F.2d at 142; Cooperative Fin. Ass'n,
Inc v Garst, 871 F.Supp. 1168, 1171 (N.D. Iowa 1995).
argues the Asset Purchase Agreement and Escrow Agreement were
executed as part of the same transaction, the Escrow
Agreement was incorporated into the Purchase Agreement, and
the jury waiver is therefore applicable to any dispute
related to or arising from the Purchase agreement due to its
broad language. Plaintiffs argue the claims in this case
arise solely out of and are governed by the terms of the
Purchase Agreement which did not contain a jury trial waiver.
Additionally, Plaintiffs argue even if the trial waiver
extended to the Purchase Agreement, it is no longer binding
because the Escrow Agreement has terminated and the
individual Plaintiffs, Marvin and Carol Benson, were not
parties to the Escrow Agreement.
have long recognized that a contract may consist of more than
one instrument.” Dakota Gasification Co. v. Natural
Gas Pipeline Co., 964 F.2d 732, 734 (8th Cir. 1992)
(citing St. Paul Fire & Marine Ins. Co. v. Tennefos
Constr. Co., 396 F.2d 623, 628 (8th Cir. 1968). Where
multiple agreements “represent successive steps which
were taken to accomplish a single purpose, ” they
should be read together. St. Paul Fire, 396 F.2d at
628; see also Unison Co., Ltd. v. Juhl
Energy Development, Inc., 789 F.3d 816, 819-820 (8th
Cir. 2015)(reading separate documents that cross-reference
one another and are contingent on one another as two parts of
one transaction); Paramount Tech. Prods. v. GSE Lining
Tech., Inc., 112 F.3d 942, 945 (8th Cir.
1997)(“[W]hen two contracts are executed at
the same time, by nearly identical parties and as part of the
same transaction, those contracts are to be read
together.”). Indeed, “hinging one contract upon
the execution of another contract . . . heightens the need
for joint interpretation.” Dakota Gasification
Co., 964 F.2d at 735. And other courts have applied this
general principle to find a party has waived its right to a
jury trial. See Gandy Marketing & Trucking,
Inc. v. Tree Town Holding, Ltd., case no. H-08-1053,
2009 WL 82062 at *2 (S.D. Texas Jan. 9, 2009).
rule of joint interpretation applies even though the
executing parties differ, as long as “the several
contracts were known to all the parties and were delivered at
the same time to accomplish an agreed purpose.” St.
Paul Fire, 396 F.2d at 628 (quoting Pet ...