United States District Court, S.D. New York
OPINION AND ORDER
GABRIEL W. GORENSTEIN, United States Magistrate Judge
have moved to withdraw their demand for a jury
trial. Plaintiffs oppose this motion, arguing
that the demand cannot be withdrawn without their consent.
See Pls. Mem. at 7, 20-21. For the following
reasons, defendants' motion is granted and the demand for
a jury trial is deemed withdrawn.
action seeks to enforce warrants to purchase shares in
Concentric Energy Corporation (“CEC”), a
corporation that later merged into defendant Uranium Energy
Corporation (“UEC”). See Amended
Complaint, filed July 30, 2015 (Docket # 17) (“Am.
Compl.”), ¶¶ 3, 6, 13. Plaintiffs allege that
UEC was bound by the terms of the CEC warrants. Id.
of the warrants was accomplished by means of a
“Securities Purchase Agreement.” See
Concentric Energy Corp. Securities Purchase Agreement
(attached as Ex. A to Defs. Mot.) (“SPA”). In the
initial briefing, defendants provided proof that some, though
not all, plaintiffs in this case signed the SPA. See
Purchaser Signature Pages to Concentric Energy Corp.
Securities Purchase Agreement (attached as Ex. C to Defs.
Reply) (“Signature Pages”); see also
O'Shea Affirmation ¶ 3. Ultimately, however,
plaintiffs conceded that each plaintiff signed the SPA
itself. Pls. Sur-Reply at 3 n.1. Additionally, and more to
the point, plaintiffs conceded that they “transmitted
their respective signature pages to CEC in connection with
their purchase of CEC Debentures and Warrants.”
Id. A copy of one such warrant states that
“[a]ll questions concerning the . . . enforcement . . .
of this Warrant shall be determined in accordance with the
provisions of the Purchase Agreement.” Common Stock
Purchase Warrant (attached as Ex. A to Defs. Reply)
(“Warrant”), § 5(e). The “Purchase
Agreement” referenced in this section is the SPA.
See id. § 1. Additionally, all plaintiffs
relied on one of the provisions of the SPA, section 5.9, to
establish venue in New York. See Am. Compl. ¶
5; Complaint, filed July 30, 2015 (Docket # 1 in related case
15 Civ. 6087), ¶ 7; Pls. Mem. at 7 n.5.
contains a provision entitled “Waiver of Jury Trial,
” which provides: “In any action, suit or
proceeding in any jurisdiction brought by any party against
any other party, the parties each knowingly and
intentionally, to the greatest extent permitted by applicable
law, hereby absolutely, unconditionally, irrevocably and
expressly waives forever trial by jury.” SPA §
their answer to the amended complaint, dated September 11,
2015, defendants demanded a jury trial. Defendants'
Answer to the Amended Complaint of Plaintiff Westminster
Securities Corporation, filed Sept. 11, 2015 (Docket # 22)
(“Answer”), at 6. A proposed unsigned case
management plan was presented to the Court by letter on
September 25, 2015, which contained the statement “This
case is to be tried to a jury.” “[Proposed] Civil
Case Management Plan and Scheduling Order, ” filed
Sept. 25, 2015 (attached as Ex. 1 to Docket # 23). The Court
“so ordered” this document on October 1, 2015.
Civil Case Management Plan and Scheduling Order, filed Oct.
1, 2015 (Docket # 26).
defendants had contemplated withdrawing their jury demand for
“some time” before September 22, 2016,
see Email from Michael S. Rubin, dated Sept. 22,
2016 (attached as Ex. B to Defs. Mot.), they did not seek to
withdraw the jury demand until October 10, 2016, after fact
discovery had closed. See Letter from Michael S.
Rubin, dated October 10, 2016 (Docket # 41).
defendants argue that the parties, through the provisions of
the SPA, waived their right to a trial by jury. As a result,
the defendants argue, their request for a jury trial was not
“proper” under Fed.R.Civ.P. 38(d) and therefore
could be withdrawn without plaintiffs' consent.
See Defs. Mot. at 3-4 & nn.1-2.
appear to make three arguments. First, they argue that the
jury waiver provision in the SPA does not bind them. Second,
they argue that, even if the jury waiver provision in the SPA
originally bound them, defendants' request for a jury
trial overrode the contractual jury waiver provision.
Finally, they argue that allowing defendants to now withdraw
their jury demand would be inequitable. We address each
argument in turn.
Whether the Contractual Jury Waiver Applies
contractual waiver of the right to a jury trial is
enforceable “if it is made knowingly, intentionally,
and voluntarily.” Merrill Lynch & Co. v.
Allegheny Energy, Inc., 500 F.3d 171, 188 (2d Cir. 2007)
(citing Nat'l Equip. Rental, Ltd. v. Hendrix,
565 F.2d 255, 258 (2d Cir. 1977)). “The burden of
proving that a waiver was knowing and intentional rests with
the party attempting to enforce the purported waiver.”
Lehman Bros. Holdings v. Bethany Holdings Grp., 801
F.Supp.2d 224, 229 (S.D.N.Y. 2011) (internal quotation marks
omitted) (quoting Sullivan v. Ajax Navigation Corp.,
881 F.Supp. 906, 910 (S.D.N.Y. 1995)). Courts have considered
the following factors in determining whether to enforce a
jury waiver provision: “(1) the negotiability of
contract terms and negotiations between the parties
concerning the waiver provision; (2) the conspicuousness of
the waiver provision in the contract; (3) the relative
bargaining power of the parties; and (4) the business acumen
of the party opposing the waiver.” Hines v. 1025
Fifth Ave., Inc., 2015 WL 765943, at *2 (S.D.N.Y. Feb.
23, 2015) (internal quotation marks omitted) (citation
jury-waiver provision at issue in this motion is contained in
the SPA. SPA § 5.21. The CEC warrants that are the
subject of this case incorporate the SPA by specific
reference. See Warrant §§ 1, 5(e). The
plaintiffs do not argue that they did not knowingly and
voluntarily waive a jury trial when they signed the SPA or
the warrants. They also do not argue that they should not be
bound by any provisions governing the CEC warrants or that
section 5(e) of the CEC warrants does not incorporate the
Instead, in their sur-reply brief, plaintiffs argue for the
first time that they can escape the effect of the jury-waiver
provision because there is no proof that CEC, the
defendants' predecessor in interest - as opposed ...