The opinion of the court was delivered by: McLaughlin, J.
This is a dispute over the application of a jury waiver clause located in two subcontracts between plaintiff Quinn Construction, Inc. ("Quinn") and defendant Skanska USA Building, Inc. ("Skanska"). The original action arose out of the construction of the Skirkanich Hall building at the University of Pennsylvania. Quinn was a concrete subcontractor on the Skirkanich Hall project. Skanska was the general contractor, and Tod Williams Billie Tsien Architects, LLP ("TWBTA") was the firm that provided architectural services for the project.
In connection with its work on Skirkanich Hall, Quinn entered into two related subcontracts with Skanska to perform concrete work on the building. Before executing the subcontracts, Quinn and Skanska negotiated over the terms of the agreements, and Quinn requested that a jury waiver clause, located in Article 24.1 of each subcontract, be omitted. Def. Skanska's Mot. to Strike Jury Demand (hereinafter "Skanska's Mot."), Ex. A at 3. However, Skanska refused any changes to Article 24.1. Skanska's Mot., Ex. B at 2. Quinn and Skanska then executed the subcontracts with the jury waiver clauses in place. The clause, which appears in Article 24.1 of each subcontract, provides:
Except as provided in paragraph 24.2 below, any and all disputes arising out of and/or related to this Agreement and the performance of the Work at the Project, shall be decided solely in the State Court System, in the State of New Jersey and venue in any such action must be placed in the County of Morris and to which jurisdiction the Subcontractor consents. The Subcontractor expressly waives all rights to trial by jury.
Skanska's Mot., Ex. C, Art. 24.1; Ex. D, Art. 24.1.
On January 31, 2007, Quinn filed a complaint against Skanska and TWBTA in view of delays and disruptions to its work. Specifically, Quinn asserted breach of contract against Skanska for the unpaid contract balance, unpaid change orders, and other damages for delay. Quinn asserted negligent misrepresentation against the architect TWBTA for allegedly incomplete plans and specifications, which contributed to project delays. Quinn did not demand a jury in its complaint.
On March 19, 2007, TWBTA answered the complaint and asserted cross-claims for contribution and indemnity against Skanska. TWBTA also did not include a jury demand in its answer or cross-claims.
On March 28, 2007, Skanska answered the complaint and counterclaimed against Quinn for breach of contract and indemnity. Skanska asserted cross-claims against TWBTA for indemnity and negligent misrepresentation. Skanska demanded a jury trial "on all issues so triable." Def. Skanska's Answer at 35.
On March 14, 2008, Skanska filed an amended answer in which it again asserted counterclaims against Quinn for breach of contract and indemnity, and cross-claims against TWBTA for indemnity, contribution and negligent misrepresentation. Skanska's negligent misrepresentation cross-claim against TWBTA asserted the same allegations as Quinn's: that TWBTA provided incomplete and inaccurate drawings, which led to damages and delays. Skanska demanded a jury trial "on all issues so triable." Def. Skanska's Am. Answer at 49.
On November 2, 2009, Skanska and TWBTA filed a stipulation to withdraw Skanska's jury demand. Def. Skanska's Stipulation to Withdraw Jury Demand. Quinn did not consent to the withdrawal. Instead, Quinn filed its own jury demand the same day as the defendants' stipulation, demanding a jury trial "on all of the claims and causes of action asserted by it and against it." Pl.'s Demand for Jury Trial.
Defendants Skanska and TWBTA now move to strike Quinn's jury demand and to designate the action for trial by the Court. For the reasons that follow, the Court will grant Skanska's motion to strike Quinn's jury demand. However, the Court will deny TWBTA's motion, as the Court finds that Quinn has a right to a jury trial in asserting its claims against TWBTA.
A. Overview of Applicable Law
The Seventh Amendment to the United States Constitution guarantees the right to a jury trial in "[s]uits at common law." U.S. Const. amend. VII. Federal Rule of Civil Procedure 38 preserves the right to a jury trial where it is declared by the Seventh Amendment or provided by federal statute. Fed. R. Civ. P. 38(a). On any issue "triable of right by a jury," a party may demand a jury trial either in a pleading, or by filing and serving the other parties with a written demand "no later than 14 days after the last pleading directed to the issue is served." Fed. R. Civ. P. 38(b). If a party does not specify the issues it wishes to have tried by a jury, it is considered to have demanded a jury trial "on all the issues so triable." Fed. R. Civ. P. 38(c).
A party waives its right to a jury trial unless its demand is properly served and filed. Fed. R. Civ. P. 38(d). However, not every party must file an individual demand for a jury trial. A party may rely on the jury demand of another to the "extent of the issues embraced by that demand." Collins v. Gov't of Virgin Islands, 366 F.2d 279, 284 (3d Cir. 1966). Thus, if one party serves a proper jury demand, another party, including an adverse party, is entitled to rely on that demand where filing a similar demand would be "superfluous." Id. at 285. However, reliance by one party on the jury demand of another "must be kept within proper limits" and is not appropriate where a jury trial is sought on distinct issues. See id. at 286. Rule 38(d) recognizes the possibility of reliance, and provides that "a proper demand may be withdrawn only if the parties consent." Fed. R. Civ. P. 38(d).
Finally, once a jury trial has been demanded pursuant to Rule 38, the trial must be by jury on all issues subject to the demand, unless: (1) the parties stipulate to a non-jury trial; or (2) "the court, on motion or on its own, finds that on some or all of those issues there is no federal right to a jury trial." Fed. R. Civ. P. 39(a).
B. Skanska's Motion to Strike Quinn's Jury Demand Skanska argues that
Quinn knowingly and intelligently
waived its right to a jury trial in the subcontracts.*fn1
By demanding a jury trial, Skanska argues that it neither
own contractual rights to a bench trial, nor did its demand undo
Quinn's jury waiver. Therefore, as Quinn never had a right to a jury
trial, Skanska claims it needed only TWBTA's consent to withdraw its
demand pursuant to Rule 38(d).
Quinn concedes that it initially had no right to a jury trial. Pl.'s Opp'n to Def. Skanska's Mot. at 3. However, Quinn argues that once Skanska demanded a jury on "all issues so triable," Quinn was entitled to rely on the demand pursuant to Collins v. Gov't of Virgin ...