Free Compendium of Unreported Decisions - District Court of Delaware - Delaware


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Case 1 :04-cv—01565-SLR Document 37-5 Filed 04/15/2005 Page1 013

Case 1 :04-cv—01565-SLR Document 37-5 Filed 04/15/2005 Page 2 of 3
Slip Copy Page 1
2005 WL 388597 (D.De1.)
(Cite as: 2005 WL 388597 (D.Del.))
H THE [PLAINTIFF] AND [DEFENDANT]
EACH HEREBY WAIVE TRIAL BY
Motions, Pleadinys and Filings TURY TN ANY JUDTCTAL PROCEEDING
INVOLVING, DIRECTLY OR
Only the Westlaw citation is currently available. INDIRECTLYK ANY MATTER
(WHETHER SOUNDING IN TORT,
CONTRACT, OR OTHERWISE) IN ANY
United States District Court, WAY ARTSTNG OUT OE OR RELATED
D_ Delawaret TO, OR CONNECTED WITH, THIS
DAMAGE necoveny svsriaivrs, 1Nc., Plaintiff, AGREEMENT OR TEE TRANSACTIONS
v_ CONTEMPLATED HEREBY.
Mtenaei R. TUCKER, Defendant. (D-l·42» ex- B) (capitalized in original)
N0. Civ.02-1647-SLR.
2. "In Suits at common law, where the value in
Feb. 27 2005_ controversy shall exceed twenty dollars, the right of
_,______._______ _____________ Pepper Hamilton LLP, trial by Jury shall be preserved, and no faet tried by a
Wilmington, DE, for plaintiff jury, shall be otherwise reexamined in any Court of
the United States, than according to the rules of the
rgttntartt,t_n,_igst@tn, Rosenthal, Menhatt, Grass & common law." .... Q .... .tne.0d.e ..... X ill. Two faotors
Goddess, Wilmington, DE, for Defendant. are considered in determining whether a suit is "at
common law": (1) the nature of the action; and (2)
MEMORANDUM ORDER the remedy sought. {hitter! States 481 U

lg()iglNg()is;, j_ The nature of the action is analyzed "by comparling]
the [action at issue] to 18th-century actions brought
ai At Wilmington this 2d day of February, 2005) in the courts of England prior to the merger of the
having reviewed plaintiffs motion to strike courts of law and equity." Id. If the action resembles
defendantis jury demand; those brought in English law courts, it is tried by a
jury. Id. lf an action is more analogous to 18th-
IT is ORDERED that defendants' motion (D.156) is eentriry eases tried in eoiirts of equity or adiniralty» it
granted for the reasons that follow: does not require a jury trial. Id. Courts also "examine
the remedy sought and determine whether it is legal
1. Piarntrff tiled the present action in August 2002, or equitable in nature-" fd at 4l7-l8- Finally, parties
alleging that defendant: (1) breached a non-compete td a eehdaet may waive theh Sevehth Ahaehdhdeht
eianse in his Consulting Agreement with plaintiff, risbt to a Jury trial as lens as the Waiver is knowing
and (2) aided and abetted breach of hduciary duties alld VOl¤lll¤lY·
awed to plaintiff. (D1.1, er. 1) 1>1arntrff requested inns......305_.f§rl.--.1.lr.._l§2_tLs....Qm;QQ2.); Qtaajzfam
compensatory and punitive damages in its complaint.
(id.) ln his November 2002 answer, defendant (.§EiY.es1.t.£l2i.t .r.. l..§2f2Q.l; Hiatt ....... £;€z1.taz;t ....... ........ lrmlt ...... llt ......... l
demanded a jury trial on both of plaintiffs claims. tsétiésiit .... 1..0:9 .... lifes.Lll2l2.t.2£l...QQlls..§§§E..l.iilei.-2tl3§r.Z.$)l2.l.).·
(D.l.3) On November 16, 2004, plaintiff moved to
strike defendanfs jury demand. (D.I.56) On January 3- "Ah aeheh fdr Thdhev damages based Oh a hlleaeh
6, 2005, defendant filed a nternerandnnr rndreatrng of eontraet is traditionally a legal elaini." liélltzzg ..... 1
that he did not oppose plaintiffs motion "insofar as it Iidlillér ....... QZ1Qé£e'Z.!i2tilTg ...... ..... Zeléfkfifln ........ after ....... ...... lisid ....... l..2tl.Zs
is premised upon the prevrsrens ofthe censnitrns Consequently, defendant would
Agreement that eau for a waiver of a jury trtaini baye a right to trial by Jury with respeet to plaintiffs
ftslyl l (D_l_59) breach of contract claim. However, plaintiffs breach
of contract claim clearly "arises out of" the
Section 13 of the Consulting Consulting Agreement between plaintiff and
Agreement between plaintiff and defendant defendant, since this claim alleges that defendant
states; breached the Consulting Agreement. 'FNZT (D.I.1,
© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.

Case 1 :04-cv—01565-SLR Document 37-5 Filed 04/15/2005 Page 3 of 3
Slip Copy Page 2
2005 WL 388597 (D.Del.)
(Cite as: 2005 WL 388597 (D.Del.))
ex. 1) The contractual jury waiver is conspicuous and N0. 20168, slip op. at 5 (Del.Ch. Oct.17,
plainly worded. Defendant is a sophisticated and 2003) (holding that the court has subject
experienced business person who was represented by matter jurisdiction over claims that are
counsel during the negotiation of the Consulting equitable in nature even if money damages
Agreement and the accompanying Asset Purchase are sought as relief, and that "[b]reach of
Agreement. The court finds that Section 13 of the fiduciary duty is a well-established equitable
Consulting Agreement constitutes a knowing and claim properly invoking the subject matter
voluntary waiver by defendant, and will strike jurisdiction of this court"); Albert v. Alex
defendant's demand for trial by jury with respect to Brown Mgmt. Servs., Inc., No. 05250, slip
this claim. op. at 2, 7 (Del. Ch. Sept. 15, 2004) (finding
that plaintiffs claim for breach of fiduciary
[NQ; Furthermore, defendant does not duty was equitable in nature).
oppose waiver of a jury trial with respect to
the breach of contract claim. (D.I.59) Since the court finds that defendant
does not have a right to trial by jury for
*2 4. An action for breach of fiduciary duty has plaintiffs aiding and abetting breach of
traditionally been equitable in nature. it/;g_lp_i;;g/gg ______ yy, fiduciary duty claim, it is not necessary to
§_._2,Qj1)75. 1096 @@200}) (ruling on consider whether plaintiff has waived his
a claim for aiding and abetting breach of fiduciary right to a jury trial.
duty which was appealed from the Delaware Court of
Chancery); QY@£jj;1iQQXQQ__H()ltlli/lg? C`¢gg__/gg 2005 WL 388597 (D.Del.)
ALZQJQQ. .... §Z§.-LQ.eL jurisdiction to hear such traditional, equitable matters Motions, Pleadings and Filings (Back to top)
as trusts and fiduciary relations"); lleinlverger v. Rio
Grande liidax. lac., 519 A.2d 1 16. 131 • 1:02CV01(>47 (Docket)
tDel.Clr.1%Q}. FNB Aiding and abetting is most (Nov. 21,2002)
accurately characterized as a means for imposing
vicarious liability on one person based on an END OF DOCUMENT
underlying substantive wrong committed by another
porsorm £3znn;c.i;.-@M. 486 U.fi.-£Q2-.Q48 ri. 24. IQ?
(stating in tho
context of securities laws that aiding and abetting is
"a method by which courts created secondary liability
in persons other than" the one who directly violated a
Stomto); [aregllerl/ @..§2Q.-_332_J.1$
(aiding and abetting liability is derivative
of the underlying cause of action). If the underlying
action is equitable in nature, a claim of aiding and
abetting that underlying cause of action must also be
equitable. In this case the fact that a breach of
fiduciary duty claim is equitable in nature makes
plaintiffs claim that defendant aided and abetted a
breach of fiduciary duty equitable as well. Although
plaintiff has requested money damages, the court
finds that breach of fiduciary duty has historically
been adjudicated in courts of equity. Defendant does
not have a right to trial by jury for plaintiffs aiding
and abetting breach of fiduciary duty claim. l*`N4§
Consequently, the court will strike defendant's
demand for trial by jury with respect to the aiding
and abetting breach of fiduciary duty claim.
QN}, Two unpublished Delaware Chancery
Court opinions corroborate this finding. See
Actrade Financial Tech., Ltd. v. Aharoni,
© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.