United States District Court, S.D. New York
For William Sherrod, Plaintiff: Jenny Diane DeFrancisco, Sergei Lemberg, Vlad Hirnyk, Lemberg & Associates L.L.C., Stamford, CT, USA.
For Time Warner Cable, Inc., Defendant: Charles Dewey Cole, Jr, LEAD ATTORNEY, Newman Myers Kreines Gross Harris, P.C., New York, NY, USA.
JAMES L. COTT, United
States Magistrate Judge.
Before the Court is Defendant Time Warner Cable, Inc.'s letter motion dated November 7, 2014, to strike Plaintiff William Sherrod's demand for a trial by jury. (Dkt. No. 34). Plaintiff submitted a response opposing the motion on November 14, 2014 (Dkt. No. 35), to which Defendant replied by letter dated November 17, 2014 (Dkt. No. 36). For the reasons stated below, Defendant's motion is denied.
Sherrod, an Ohio resident, commenced this action against Time Warner Cable, Inc. (" TWC") on March 4, 2014, alleging violations of the Telephone Consumer Protection Act (" TCPA"), 47 U.S.C. § 227 et seq. Specifically, the complaint alleges the following: TWC, in an " illegal effort to collect a consumer debt, " placed numerous calls to Sherrod's cellphone " using an automated telephone dialer system('ATDS' or 'predictive dialer') and/or by using an artificial or prerecorded voice." Complaint ¶ ¶ 1, 6, 7, 12. Although Sherrod is a TWC subscriber, these calls were placed " in an attempt to speak with a person named 'Anthony Sanford, " ' a man with whom Sherrod has no connection. Id. ¶ 6. When Sherrod answered his phone, the prerecorded message instructed him to press " 1" if he was " Anthony Sanford" and press " 2" if he was not. Id. ¶ 8. On several occasions, Sherrod pressed " 2, " spoke with a live operator, informed the operator that he was not Anthony Sanford, and requested that TWC cease calling his cellphone and remove his phone number from its call list. Id. ¶ ¶ 9-11. Despite these efforts, TWC continued to place " dozens of calls" to Sherrod's cellphone in a misguided effort to reach " Anthony Sanford." Id. ¶ 12.
Sherrod demanded a jury trial in his complaint and reaffirmed his demand in a letter to the Court dated October 31, 2014 (Dkt. No. 32), prompting TWC's motion. TWC contends that Sherrod " agreed to give up his right to a jury trial as part of his agreement to use Time Warner Cable's services." Defendant's Letter Motion to Strike Jury Demand dated November 7, 2014 (Dkt. No. 34) (" Def.'s Letter Motion") at 1. TWC attached to its Letter Motion the Residential Services Subscriber Agreement (" Subscriber Agreement") that includes the following jury waiver provision:
(g) Jury Waiver. Any Dispute properly brought in a court of law in connection with our Customer Agreements (including this Agreement) will be heard and decided by a judge, not a jury. Each of us waives (in other words, gives up) the right to a jury trial in any such Dispute.
Subscriber Agreement ¶ 15(g) (emphasis in original). TWC argues that " [t]he waiver covers any dispute, which is broadly defined to cover statutory claims" such as Sherrod's. Def.'s Letter Motion at 2. " Dispute" is defined in the Subscriber Agreement as follows:
(f) " Dispute" means any dispute, claim, or controversy between you and TWC regarding any aspect of your relationship with us or any conduct or failure to act on our part, including claims based on breach of contract, tort (for example, a negligence or product liability claim), violation of law or any claims based on any other theory, and including those based on events that occurred prior to the date of this Agreement.
Subscriber Agreement, ¶ 17(f).
A. Standards Governing Seventh Amendment Right to a Jury ...