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Affiliated Foods Midwest Cooperative, Inc. v. Supervalu Inc.

United States District Court, D. Nebraska

May 30, 2017

AFFILIATED FOODS MIDWEST COOPERATIVE, INC., a Nebraska corporation, and ASSOCIATED WHOLESALE GROCERS, INC., Plaintiffs,
v.
SUPERVALU INC., a Delaware corporation, Defendant. BOROWIAK IGA FOODLINER, INC., Plaintiff/Counter Defendant,
v.
AFFILIATED FOODS MIDWEST COOPERATIVE, INC., and ASSOCIATED WHOLESALE GROCERS, INC., Defendants/Third-Party Plaintiffs/Counter Plaintiffs,
v.
TREVOR BOROWIAK, Third Party Defendant.

          ORDER

          F.A. Gossett United States Magistrate Judge.

         This matter comes before the Court on the Motion to Strike Plaintiff's Jury Demand in the Lead Case (Filing No. 37) filed by the Lead Case defendants, Affiliated Foods Midwest Cooperative, Inc. (“AFM”) and Associated Wholesale Grocers (“AWG”). AFM/AWG argue that the Lead Case plaintiff, Borowiak IGA Foodliner, Inc. (“Borowiak”), waived its right to a jury trial in pre-litigation written agreements with AFM. The Court will grant the motion.

         BACKGROUND

         Borowiak is a grocery store chain currently operating seven local supermarkets in southern Illinois. (Filing No. 1 at p. 2). On December 29, 2015, Borowiak and AFM entered into a Supply Agreement in which AFM agreed to supply Borowiak with foodstuffs and other items sold to retail grocers. (Filing No. 38-1). On the same date, in connection with the Supply Agreement, Borowiak executed a Promissory Note (Filing No. 38-3) and a Security Agreement (Filing No. 38-2) in favor of AFM. Trevor Borowiak, President of Borowiak IGA, executed a Guaranty of the Note (Filing No. 44 at p. 35) and a Guaranty of the Supply Agreement (Filing No. 44 at p. 58).

         Section 7(j) of the Supply Agreement, designated “Governing Law: Venue: Waiver of Jury Trial, ” contains the following provision in all capital letters:

EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTIONS OR LIABILITIES ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT.

(Filing No. 38-1 at p. 5).

         The Security Agreement contains the following provision, in all capital letters:

WAIVER OF JURY TRIAL. DEBTOR AND SECURED PARTY HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, SUIT, COUNTERCLAIM, CROSSCLAIM OR OTHERWISE, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR ANY ACTS OR OMISSIONS OF SECURED PARTY AND ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY DEBTOR AND SECURED PARTY AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. DEBTOR AND SECURED PARTY ARE EACH HEREBY AUTHORIZED TO FILE A COPY OF THIS SECTION 7(K) IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER.

(Filing No. 38-2 at pp. 5-6).

         The Promissory Note contains the following provision:

TRIAL BY JURY. BORROWER AND LENDER HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, SUIT, COUNTERCLAIM, CROSSCLAIM OR OTHERWISE, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS PROMISSORY NOTE OR ANY ACTS OR OMISSIONS OF LENDER AND ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWER AND LENDER AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. BORROWER AND LENDER ARE EACH HEREBY AUTHORIZED TO FILE A COPY OF THIS SECTION 10 IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER.

(Filing No. 38-3 at pp. 3-4).

         Both Guaranties likewise contain jury waiver provisions in all capital ...


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