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N. FELDMAN & SON v. CHECKER MOTORS CORP.

April 18, 1983

N. FELDMAN & SON, LTD., Plaintiff,
v.
CHECKER MOTORS CORP. and GENERAL MOTORS CORP., Defendants



The opinion of the court was delivered by: DUFFY

MEMORANDUM & ORDER

 KEVIN THOMAS DUFFY, D.J.:

 Defendant, Checker Motors Corporation ("Checker"), moves herein to strike plaintiff's demand for a jury trial and appeals from two rulings by Magistrate Bernikow regarding the extension of the September 30, 1982 discovery cutoff date. Defendant, General Motors Corporation ("GM"), moves herein for summary judgment. I will consider and determine each of these motions and Checker's appeal separately below.

 BACKGROUND

 On July 21, 1981, plaintiff, N. Feldman & Sons, Ltd. ("Feldman"), an Israeli importer and distributor of agricultural, construction, and automotive equipment, brought this action against defendants Checker, a manufacturer of taxicabs, and GM, a manufacturer of diesel engines.

 The plaintiff's allegations are based, in part, on its July 20, 1979 agreement with Checker whereby Checker agreed to supply Feldman with taxicabs equipped with diesel engines. Pursuant to an earlier agreement between Checker and GM, GM agreed to supply the diesel engines for installation in these taxicabs. In 1979, plaintiff purchased 18 taxicabs from Checker that were equipped with GM diesel engines. Plaintiff now contends that because these taxicabs and their engines were defective both defendants should be held liable. The complaint asserts claims of breach of contract, breach of express and implied warranties, fraud, negligence, strict liability in tort, and conspiracy. The complaint seeks millions of dollars in compensatory and punitive damages and demands a jury trial of all issues.

 Checker and GM filed separate answers to plaintiff's complaint. Checker asserted various affirmative defenses and counterclaims including an affirmative defense that under paragraph 19(6) of the July 20, 1979 agreement, Feldman had waived a jury trial against Checker. GM asserted that it had no dealings with plaintiff, and therefore could not be held liable to Feldman. Checker subsequently filed a cross-claim against GM, seeking reimbursement, indemnity, and contribution with respect to any damages that Feldman might recover against Checker by reason of the alleged defects in the GM engines. As of this date, all parties have engaged in extensive discovery proceedings.

 A. MOTION TO STRIKE PLAINTIFF'S JURY DEMAND

 Checker moves to strike plaintiff's demand for a jury trial. Checker contends that plaintiff contractually waived its right to a jury trial in paragraph 19(6) of their July 20, 1979 agreement, which provides:

 
Checker and Dealer both acknowledge and agree that any controversy which may arise under this agreement or the relationship established hereby would be based upon difficult and complicated issues, and therefore, the parties agree that any law suit growing out of any such controversy will be tried in a court of competent jurisdiction by a judge sitting without a jury.

 In support of its motion, Checker notes that plaintiff's complaint both relies on this written agreement and seeks to enforce its terms. Therefore, Checker argues, plaintiff also should be bound by the contractual waiver of a jury.

 Checker further asserts that plaintiff knowingly and voluntarily consented to waive a jury trial when, after years of negotiations and correspondence, Feldman signed the agreement which visibly and expressly provided for this waiver. Plaintiff contends, however, that it was not represented by counsel at the time of the contract signing, and that this lack of representation along with the "boilerplate" nature of the jury trial waiver provision, render the waiver unenforceable.

 I find plaintiff's position unpersuasive. Although the right to trial by jury is constitutionally guaranteed, an individual may knowingly and intentionally waive this right. See National Equipment Rental Ltd. v. Hendrix, 565 F.2d 255, 258 (2d Cir. 1977); see also Seligson v. Plum Tree, Inc., 361 F. Supp. 748, 758 (E.D.Pa. 1973); Northwest Airlines, Inc. v. Air Line Pilots Assoc. Int'l, 373 F.2d 136, 142 (8th Cir. 1967); Van Leyden v. 360 East 55th Street Corp., 39 F. Supp. 879 (S.D.N.Y. 1941). When the purported waiver exists in a contract signed prior to the contemplation of litigation, the party seeking to enforce it must demonstrate that the consent was both voluntary and informed. See National Equipment Rental Ltd. v. Hendrix, 565 F.2d at 258; Dreiling v. Peugeot Motors of America, Inc., 539 F. Supp. 402, 403 (D.Colo. 1982). Checker has met this burden. The waiver provision is clearly visible and located directly above the signatures of the contracting parties. Although unrepresented at the time of contract signing, plaintiff does not fit into the category of individuals with "no real choice" but to sign the waiver provision. See, e.g., National Equipment Rental Ltd. v. Hendrix, 565 F.2d at 258. This agreement was the result of years of negotiation between the parties. ...


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