United States District Court, D. Rhode Island
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
case is before the Court on Defendant IDL Worldwide,
Inc.'s, (“IDL”) Motion to Strike (ECF No.
14), which asks the Court to deny Plaintiff Visual Creation,
Inc.'s, (“VCI”) request for a jury, as
opposed to a bench, trial on the issue whether there exists a
binding agreement to arbitrate. For the following reasons,
IDL's motion is DENIED.
parties are agreed that there exists a triable issue of
whether an arbitration agreement exists. Their dispute is
over whether this issue should be tried to the Court or a
jury. IDL argues that VCI waived its right to a jury trial
when it failed to request one in its response to IDL's
Motion to Dismiss and Compel Arbitration (ECF No. 9).
(Def.'s Mot. to Strike 1.) VCI, however, claims that it
preserved its right to a jury trial in its complaint.
(Pl.'s Opp'n to Def.'s Mot. to Strike 8, ECF No.
Federal Arbitration Act (“FAA”) reflects “a
liberal federal policy favoring arbitration agreements,
” Moses H. Cone Mem'l Hosp. v. Mercury Constr.
Corp., 460 U.S. 1, 24 (1983), and requires that the
Court “rigorously enforce agreements to arbitrate,
” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S.
213, 221 (1985). On the other hand, the right to
“[t]rial by jury is a vital and cherished right,
integral in our judicial system, ” City of
Morgantown v. Royal Ins. Co., 337 U.S. 254, 258 (1949),
and therefore the Court must “indulge every reasonable
presumption against waiver, ” Aetna Ins. Co. v.
Kennedy, 301 U.S. 389, 393 (1937).
Section 4 of the FAA explicitly provides for a jury trial on
the issue of an arbitration agreement's existence, when
“the party alleged to be in default . . . demand[s] a
jury trial of such issue” and does so “on or
before the return day of the notice of
application.” 9 U.S.C. § 4. And here VCI complied
with Section 4 by raising the issue whether an arbitration
agreement exists in its complaint, and then, by including a
general jury demand therein, requesting a trial by jury as to
that issue. (See Compl. 9, ECF No. 1 (“VCI has
never agreed to arbitrate with IDL regarding the Samsung
Project”); id. at 12 (“Plaintiff demands
a trial by jury on all issues so triable.”).) VCI's
complaint therefore complied with Section 4's procedure,
by demanding a jury trial as to this issue “before the
return day of the notice of application.” 9 U.S.C.
to IDL's position, nothing in Section 4 precludes - or is
inconsistent with - a plaintiff complying with its
requirements by demanding a jury trial on this issue in the
complaint. See Booth v. Hume Publ'g, Inc., 902
F.2d 925, 931 (11th Cir. 1990) (noting that the Federal Rules
of Civil Procedure apply to a motion brought under the FAA
“to the extent the Rule[s] [are] consistent with the
language and purpose of the Arbitration Act.”). That is
to say, if a plaintiff raises the issue in its complaint and
makes a general jury demand therein, nothing in Section 4
prevents the normal operation of Federal Rule of Civil
Procedure 38, which states that a party “is considered
to have demanded a jury trial on all the issues so triable,
” unless it specifies “the [particular] issues
that it wishes to have tried by a jury.” Fed.R.Civ.P.
38(c). Section 4 simply provides another opportunity -
arising if and when a party moves to compel, potentially
after Rule 38's 14-day window has closed - for the
alleged party in default to demand a jury trial. See
Fed R. Civ. P. 38(b)(1); Guidotti v. Legal Helpers Debt
Resolution, L.L.C., Civil Action No. 11-1219 (JBS/KMW),
2016 WL 4163547, at *2 (D.N.J. Aug. 4, 2016) (“[T]he
demand provisions of Section 4 of the FAA simply provide
another procedure to demand a jury trial, parallel to that
provided by Rule 38.” (quotations and alterations
is of no help to IDL on this point when it states that,
consistent with Federal Rule of Civil Procedure 81(a)(6)(B),
it is “only where the Arbitration Act is silent that
the Federal Rules of Civil Procedure become
applicable.” 861 F.3d at 1348-50 (quoting
Booth, 902 F.2d at 931) (holding that right to jury
trial on the existence of an arbitration agreement was waived
where plaintiff failed to raise the issue in his complaint
and in his response to motion to compel). Section 4 of the
FAA is, in fact, silent on the procedures required to raise
the issue of whether an arbitration agreement exists in a
pleading, except to the extent it allows the party resisting
arbitration to demand a jury trial on this issue before it
must respond to a motion to compel. Cf. Application of
Deiulemar Compagnia Di Navigazione S.p.A v. M/V Allegra,
198 F.3d 473, 483 (4th Cir. 1999) (“[A] district court
could invoke Rule 81(a)[(6)(B)] to use federal discovery
rules to determine whether a dispute is arbitrable.”).
Therefore Rule 38 applies here to preserve VCI's right to
a jury trial.
foregoing reasons, IDL's Motion to Strike (ECF No. 14) is
 VCI concedes that it lacks a
constitutional right to a jury trial, (Pl.'s Opp'n to
Def.'s Mot. to Strike 10), so the Court rests its
conclusion herein on the statutory right found in Section 4
of the FAA. See Burch v. P.J. Cheese, Inc., 861 F.3d
1338, 1347 (11th Cir. 2017) (“In a civil case, a right
to trial by jury may arise either by the Seventh Amendment to
the U.S. Constitution or via a federal statute.”). The
Court notes, however, that VCI's concession may have been
ill-considered: The question of fact determinative of whether
an arbitration agreement exists in this case - i.e., when the
parties' formed their contract - is alsorelevant to
VCI's breach of contract claim, which is likely an action
at law. Wyler Summit P'ship v. Turner Broad. Sys.,
Inc.,235 F.3d 1184, 1194 (9th Cir. 2000) (“In
most instances, a claim seeking money damages for breach of
contract is an action at law.”). And the Seventh
Amendment requires that where a party demands a jury
“[i]n cases which combine legal and equitable claims, a
jury must decide the former, including issues of fact common
to both sets of claims.” Gallagher v. Wilton