On Behalf Of All Others Similarly Situated v. The Coca-cola Co.

714 F.Supp.2d 912

Amanda KREMERS and Jason McCann, individually and on behalf of all others similarly situated, Plaintiffs,

v.THE COCA-COLA COMPANY, Defendant.

Civil No. 09-333-GPM.

United States District Court,S.D. Illinois.

July 13, 2009.

COPYRIGHT MATERIAL OMITTED.

Jeffrey A.J. Millar, Brent Coon & Associates, St. Louis, MO, Thomas G. Maag, Wendler Law P.C., Edwardsville, IL, for Plaintiffs.

Gene M. Williams, Shook, Hardy et al., Houston, TX, Holly P. Smith, James R. Eiszner, Jr., John F. Murphy, Laurie Ann Novion, Shook, Hardy et al., Kansas City, MO, Troy A. Bozarth, Springfield, IL, Gordon R. Broom, Edwardsville, IL, for Defendant.

MEMORANDUM AND ORDER

MURPHY, District Judge:

Plaintiffs Amanda Kremers and Jason McCann filed this putative class action in the Circuit Court of the Third Judicial Circuit, Madison County, Illinois, on March 2, 2009. Defendant Coca-Cola Company (“Coca-Cola”) removed the action to this Court on May 1, 2009. Federal subject matter jurisdiction is alleged on the basis of diversity of citizenship pursuant to 28 U.S.C. § 1332, as amended by the Class Action Fairness Act of 2005, Pub.L. No. 109-2, 119 Stat. 4 (codified in scattered sections of 28 U.S.C.). In their complaint Kremers and McCann allege that they purchased soft drinks manufactured by Coca-Cola that were marketed as being the “classic” or “original formula” of Coca-Cola's famous beverage but which in fact were sweetened with high fructose corn syrup (“HFCS”). According to Kremers and McCann, the classic or original formula of Coca-Cola's flagship drink was sweetened with sucrose derived from sugar cane or sugar beets, not HFCS. Kremers and McCann assert claims against Coca-Cola for deceptive and unfair trade practices under the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), 815 ILCS 505/1 et seq. , and unjust enrichment. Additionally, they seek certification of a class defined as, “All citizens and lawful permanent resident aliens of Illinois who between February 20, 2004 [,] and February 20, 2009[,] purchased Coca-Cola Classic® adulterated with HFCS in a container ( e.g. [,] bottle or can) labeled “Classic” and “original formula” and are in possession of the container purchased ( e.g. [,] bottle or can[ ] ). Doc. 2-3 at 6 ¶ 21. Following removal of the case to this Court, Coca-Cola answered the complaint and demanded a jury trial on all counts of the complaint in this case. Kremers and McCann in turn filed a motion to strike Coca-Cola's jury demand as to Counts I-III of the complaint, which assert claims under the ICFA (Doc. 18). The motion to strike has been fully briefed and is ripe for decision, and accordingly the Court now rules as follows.

As an initial matter, the Court notes that although the motion to strike does not specify the procedural rule under which it is brought, it may be deduced that it is Rule 12 of the Federal Rules of Civil Procedure. That rule provides, in pertinent part, that where, as here, a party makes a motion within twenty days of service of a pleading, a court “may strike from [the] pleading ... any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). It is the case, of course, that “motions to strike are disfavored,” because they “potentially serve only to delay,” although when motions to strike “remove unnecessary clutter from the case, they serve to expedite, not delay.” Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294 (7th Cir.1989) (citing United States v. 416.81 Acres of Land, 514 F.2d 627, 631 (7th Cir.1975)). Thus, motions to strike can be “useful” when, for example, “the parties disagree on the legal implications of the uncontroverted facts.” Resolution Trust Corp. v. Gallagher, No. 92 C 1091, 1992 WL 370248, at *3 (N.D.Ill. Dec. 2, 1992). In particular, Rule 12(f) motions are employed frequently in this Circuit to strike improper jury demands as to claims for relief which afford no right to a jury trial. See, e.g., Beesley v. International Paper Co., No. 06-703 DRH, 2009 WL 260782, at *4 (S.D.Ill. Feb. 4, 2009) (using Rule 12(f) to strike a demand for a jury trial as to certain claims under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq.); Spano v. Boeing Co., No. 06-cv-743-DRH, 2007 WL 1149192, at **6-9 (S.D.Ill. Apr. 18, 2007) (same); Cabin v. Plastofilm Indus., Inc., No. 96 C 2564, 1996 WL 496604, at *1 & n. 1, **3-4 (N.D.Ill. Aug. 29, 1996) (same). ¹ [4] [5] [6] Turning then to the merits of the instant motion to strike, it is true, of course, that there is no right to a jury trial on an ICFA claim in Illinois state court. See Martin v. Heinold Commodities, Inc., 163 Ill.2d 33, 205 Ill.Dec. 443, 643 N.E.2d 734, 754-55 (1994); Prior Plumbing & Heating Co. v. Hagins, 258 Ill.App.3d 683, 197 Ill.Dec. 84, 630 N.E.2d 1208, 1211 (1994); Rubin v. Marshall Field & Co., 232 Ill.App.3d 522, 173 Ill.Dec. 714, 597 N.E.2d 688, 693 (1992); Wheeler v. Sunbelt Tool Co., 181 Ill.App.3d 1088, 130 Ill.Dec. 863, 537 N.E.2d 1332, 1347 (1989); Richard/Allen/Winter, Ltd. v. Waldorf, 156 Ill.App.3d 717, 109 Ill.Dec. 239, 509 N.E.2d 1078, 1083 (1987). This is not dispositive, however, as to the issue of whether Coca-Cola is entitled to a jury trial on the ICFA claims against it in federal court. In federal court, the right to a jury trial must be determined as a matter of federal law, even if the claim arises under state law and is before the court on diversity jurisdiction. See Simler v. Conner, 372 U.S. 221, 222, 83 S.Ct. 609, 9 L.Ed.2d 691 (1963); Mayer v. Gary Partners & Co., 29 F.3d 330, 333 (7th Cir.1994); 9 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2303 (3d ed. 1998 & Supp.2009) (collecting cases). The Seventh Amendment to the United States Constitution sets forth the constitutional basis for the right to a jury trial in federal court: “In [s]uits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved[.]” U.S. Const. amend. VII. See also Fed.R.Civ.P. 38(a) (“The right of trial by jury as declared by the Seventh Amendment to the Constitution ... is preserved to the parties inviolate.”). Importantly, the Seventh Amendment, which is binding on federal courts but not state courts, may create a right to a jury trial in federal court even where no such right exists in state court. See Simler, 372 U.S. at 222, 83 S.Ct. 609; Wartman v. Branch 7, Civil Div., County Court, Milwaukee County, State of Wis., 510 F.2d 130, 134 (7th Cir.1975).

The Supreme Court of the United States has interpreted the right to a jury trial preserved by the Seventh Amendment to extend beyond “suits at common law,” and to embrace all suits in which legal rights are adjudicated, as opposed to actions where equitable rights alone are at issue and equitable remedies are administered. See Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry, 494 U.S. 558, 564, 110 S.Ct. 1339, 108 L.Ed.2d 519 (1990). In Curtis v. Loether, 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974), the Court also held that “the Seventh Amendment ... appl[ies] to statutory actions enforcing statutory rights, and requires a jury trial upon demand, if the statute creates legal rights and remedies, enforceable in an action for damages in the ordinary courts of law.” Id. at 194, 94 S.Ct. 1005. See also Lebow v. American Trans Air, Inc., 86 F.3d 661, 669 (7th Cir.1996); Grayson v. Wickes Corp., 607 F.2d 1194, 1196 (7th Cir.1979). To determine whether a particular action will resolve legal rights and thus give rise to a jury trial right, a court must examine both the nature of the claim for relief and the remedy sought. See Wooddell v. International Bhd. of Elec. Workers, Local 71, 502 U.S. 93, 97, 112 S.Ct. 494, 116 L.Ed.2d 419 (1991) (citing Terry, 494 U.S. at 565, 110 S.Ct. 1339); Marseilles Hydro Power, LLC v. Marseilles Land & Water Co., 299 F.3d 643, 648 (7th Cir.2002). Specifically, a court must: (1) compare the statutory action in question to analogous 18th-century actions existing at the time the Seventh Amendment was ratified, which antedates, of course, the merger of the courts of law and equity in the federal judicial system; and (2) examine the remedy sought, and determine whether the claim and the remedy are legal or equitable in nature. See Tull v. United States, 481 U.S. 412, 417-18, 107 S.Ct. 1831, 95 L.Ed.2d 365 (1987); United States v. One 1976 Mercedes Benz 280S, 618 F.2d 453, 456-58 & n. 8 (7th Cir.1980). The second inquiry is the more important one in the analysis. See Terry, 494 U.S. at 565, 110 S.Ct. 1339; Jefferson Nat'l Bank of Miami Beach v. Central Nat'l Bank in Chicago, 700 F.2d 1143, 1149 (7th Cir.1983). ²

Although the United States Court of Appeals for the Seventh Circuit has not spoken to the issue of whether there is a right to a jury trial on an ICFA claim in federal court, a number of thoughtful opinions from sister federal trial courts in this Circuit have concluded that the Seventh Amendment does create such a right. See, e.g., Cellular Dynamics, Inc. v. MCI Telecomms. Corp., No. 94 C 3126, 1997 WL 285830, at **6-9 (N.D.Ill. May 23, 1997); Israel Travel Advisory Serv., Inc. v. Israel Identity Tours, Inc., No. 92 C 2379, 1993 WL 451410, at **1-2 (N.D.Ill. Nov. 2, 1993); Inter-Asset Finanz AG v. Refco, Inc., No. 92 C 7833, 1993 WL 311772, at **3-4 (N.D.Ill. Aug. 12, 1993). But cf. GreatAmerica Leasing Corp. v. Cozzi Iron & Metal, Inc., 76 F.Supp.2d 875, 880 (N.D.Ill.1999). While the Court is perfectly well aware that, as Kremers and McCann point out, the opinions of district courts are not precedents, see Fry v. Exelon Corp. Cash Balance Pension Plan, 571 F.3d 644, 648 (7th Cir.2009); Matheny v. United States, 469 F.3d 1093, 1097 (7th Cir.2006); Dudley v. Putnam Inv. Funds, 472 F.Supp.2d 1102, 1105 (S.D.Ill.2007), decisions of coordinate courts are entitled to this Court's respectful attention and to...