Richmond v. Russ Darrow Chrysler LLC, No. 1:2018cv00128 - Document 15 (E.D. Wis. 2018)
Court Description: ORDER granting 10 MOTION to Strike Demand for Jury Trial, signed by Chief Judge William C Griesbach on 08/20/2018. Plaintiffs jury demand is stricken. (cc: all counsel) (Griesbach, William)
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ether alterations in the printed terms would have been permitted by the drafting party, and whether there were alternative providers of the subject matter of the contract.” Wis. Auto Title Loans, Inc., 2006 WI 53, at ¶ 34. “Substantive unconscionability addresses the fairness and reasonableness of the contract provision subject to challenge.” Id. at ¶ 35. “To tip the scales in favor of unconscionability requires a certain quantum of procedural plus a certain quantum of substantive unconscionability.” Deminsky, 2003 WI 15, at ¶ 27 (quoting Discount Fabric House v. Wisc. Tel. Co., 117 Wis. 2d 587, 602, 345 N.W.2d 417 (1984). The evidence here shows neither procedural nor substantive unconscionability. At the time he signed the waiver, Richmond was 50 years old, a high school graduate, and according to his employment application, had completed two years of vocational school and three 5 years of college. He had approximately eight years of experience as a new and used car salesperson and a used car sales manager. He had left his last job to move to the Green Bay area to take care of his aging father. Although Richmond claims he was told to just sign the waiver without reading it, this is not a defense to its enforcement. See State Farm Fire and Cas. Co. v. Home Ins. Co., 88 Wis. 2d 124, 129, 276 N.W.2d 349 (Wis. Ct. App. 1979) (“Failure to read a contract before signing it will generally not affect its validity. A court will not protect a person who fails to take reasonable steps for his own protection.”). Moreover, unlike standard consumer contracts that are often lengthy and in small print, the provision Richmond challenges was part of an application he filled out and the jury waiver is in clear understandable language. Richmond remained free to read it, and the fact that his employment at Russ Darrow was conditioned upon his signing the waiver does not render his signature invalid. He was still free to walk away and seek employment elsewhere. Plaintiff argues that since Russ Darrow is a sophisticated and experienced employer, and that there was an inequality in bargaining power between the parties, the contract provision was procedurally unconscionable. Unconscionability, however, requires something more than “superior bargaining power.” Wis. Auto Title Loans, 2006 WI 53, at ¶ 32. Although the provision was part of a standardized application form, “[o]rdinarily . . . adhesion contracts are valid.” Id. at ¶ 53. In addition, the jury trial waiver provision utilized language that was clear, easily identifiable, and did not require specialized knowledge to comprehend. Nor is it clear that Russ Darrow was in a superior bargaining position. Car dealers, after all, need sales persons to sell their cars. Under these circumstances, no showing of procedural unconscionability has been shown. Even if the evidence did establish a quantum of procedural unconscionability, it fails to establish a quantum of substantive unconscionability. Waiving a jury trial is not the same as giving up or even limiting the remedies one might otherwise pursue. The purpose of the provision is 6 presumably to reduce the expense of any litigation that might arise and perhaps make the outcome more predictable. Regardless of whether such goals would be achieved by the waiver, there is nothing unfair or unreasonable in Russ Darrow’s use of a jury waiver condition to obtain them. Additionally, the jury waiver is relatively narrow compared to many forum-selection clauses. It does not require Richmond to try the case in a different venue or submit to arbitration, but only alters who the fact-finder is. See, e.g., Pietroske, 2004 WI App 142, at ¶ 7 (finding no substantive unconscionability in a forum selection clause requiring the Wisconsin plaintiff to adjudicate his claims in Cook County, Illinois); Cottonwood Fin., Ltd. v. Estes, 2012 WI App 12, ¶ 16, 339 Wis. 2d 472, 810 N.W.2d 852 (rejecting argument that an arbitration clause was substantively unconscionable, noting it did not eliminate any of plaintiff’s claims, but “merely shift[ed] the proceedings to a less formal, less expensive, and more expedient form”). In sum, Richmond has failed to prove any procedural or substantive unconscionability. The contract is therefore enforceable. D. Knowing and Voluntary Richmond also argues that Russ Darrow must show that he “knowingly and voluntarily” signed the jury trial waiver. However, both the Wisconsin Supreme Court and the Seventh Circuit have rejected this standard for determining whether a party waived his right to a jury trial in a civil case. See Parsons v. Associated Banc-Corp, 2017 WI 37, ¶ 37, 374 Wis. 2d 513, 893 N.W.2d 212; IFC Credit, 512 F.3d at 994. In Parsons, the Wisconsin Supreme Court upheld a contractual prelitigation jury trial waiver, explicitly rejecting the plaintiffs’ argument that enforcement of such a waiver required a separate showing that it was knowing and voluntary. Id. at ¶¶ 32, 35 (noting that “the action a party must take to waive his or her Article I, section 5 right to a jury trial pursuant to statute is quite minimal,” and that “ a party's ‘waiver’ of the Article I, Section 5 right of trial by jury need not be a ‘waiver’ in the strictest sense of that word, that is, an ‘intentional relinquishment of a 7 known right”) (internal quotations omitted); see also IFC Credit, 512 F.3d at 993 (“If accidental forfeitures can blot out any right to a jury trial—for no one argues that Rule 38 is unconstitutional—then there is no federal rule that bench-trial agreements must be attended by extra negotiation or depend on evidence of voluntariness beyond what is required to make the rest of the contract legally effective.”). Where the contract terms are clear and unambiguous, a contract should be construed according to its literal terms. Parsons, 2017 WI 37, at ¶ 36. Here, Richmond contractually waived his right to have a jury resolve his dispute with Russ Darrow, and no separate showing that it was “knowing and voluntary” is required. III. CONCLUSION For the reasons expressed above, Defendant’s motion to strike the jury demand (ECF No. 14) is GRANTED and Plaintiff’s jury demand shall be stricken. SO ORDERED at Green Bay, Wisconsin this 20th day of August, 2018. s/ William C. Griesbach William C. Griesbach, Chief Judge United States District Court 8
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