Kaplan v. Regions Bank

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

MARVIN I. KAPLAN,

Plaintiff,

v. Case No: 8:17-cv-2701-T-36CPT

REGIONS BANK, an Alabama

banking corporation,

Defendant.

___________________________________/

ORDER

This cause comes before the Court upon the Report & Recommendation filed by Magistrate

Judge Christopher P. Tuite on August 7, 2019 (the “R&R”). Doc. 104. In the R&R, Magistrate

Judge Tuite recommends that Regions Bank’s (“Regions”) Amended Motion to Strike Kaplan’s

Jury Demand (the “Motion”) be granted and Regions’ Amended Request to Take Judicial Notice

on Amended Motion to Strike Jury Trial Demand (the “Amended Request to Take Judicial

Notice”) be granted-in-part. Id. at 14.

All parties were furnished copies of the R&R and were afforded the opportunity to file

objections pursuant to 28 U.S.C. § 636(b)(1). Marvin I. Kaplan (“Kaplan”) timely objected to the

R&R (the “Objection”). Doc. 107. Upon consideration of the R&R, the Objection, Regions’

response thereto, and this Court’s independent examination of the file, it is determined that the

R&R should be adopted and Kaplan’s Objection should be overruled.

I. Background

A. Introduction

This action arises from an earlier case in the Middle District of Florida, styled Regions

Bank v. Kaplan, et al., No. 8:12-cv-1837-T-17MAP (M.D. Fla.) (“Kaplan I”), in which Regions

sued Kaplan and several of his investment entities for, inter alia, fraudulent concealment, civil

conspiracy, conversion, and aiding and abetting. Doc. 113 ¶¶1, 48, 57. Kaplan began investing

with Smith Advertising & Associates (“SAA”) in 2008, which involved providing short-term loans

to SAA that supplied “bridge financing” for SAA’s printing contracts with cities and

municipalities. Id. at ¶¶8–9, 13. The loans from investors like Kaplan purportedly provided SAA

with additional cash flow to front the cost of printing contracts for its clients, and various printing

vendors would give a discounted price to SAA in exchange for SAA’s upfront payment. Id. at ¶9.

Rather than passing the savings from the discount along to its customers, SAA would allegedly

charge its customers the full price of the printing vendor’s services, retain the savings, and split

the discount with the investor as an “incentive.” Id. at ¶10. Kaplan formed several limited liability

companies or used existing ones to invest with SAA over the course of the next few years as the

size of deals grew larger. Id. at ¶14.

B. The “Bundled Deals” and the Deposit Agreement

The nature of the deals changed in 2011, however, as Todd Smith (“Smith”), one of the

officers of SAA, offered a purported investment opportunity, known as the “bundled deals.” Id. at

¶¶14, 16. Under these “bundled deals,” SAA would repay Kaplan in full within a much shorter

time frame, often the same day as Kaplan’s initial investment, because the bundled deals allegedly

corresponded to SAA’s cash flow and were based on multiple contracts that were “bundled”

together. Id. at ¶17. To execute the “bundled deals,” Smith would contact Kaplan regarding certain

proposed print contracts and short-term investments. Id. at ¶19. After Kaplan and Smith agreed to

terms, Smith would create promissory notes for the investment loans with respect to each of

Kaplan’s investment companies, write checks for both the principal repayment and incentive

payment, and overnight these items to Kaplan. Id. The next day, Kaplan would wire the principal

investment from his investment companies to SAA. Id. On the same day, Kaplan would receive

the repayment checks and promissory notes from Smith and deposit the checks upon the

investments’ agreed “maturity” date, which was typically the following day. Id.

Kaplan’s investment companies opened bank accounts (the “Entity Accounts”) with

Regions to better accommodate the large wire transfers for the “bundled deals.” Id. at ¶23. Kaplan

had previously opened a personal checking account (the “Personal Account”) with Regions, as

well. Id. at ¶7; Doc. 55 at 2. In opening the Personal Account and the Entity Accounts, Kaplan

purportedly received the Deposit Agreement for each account (the “Deposit Agreement”). See

Doc. 55 at 2–3. Kaplan does not dispute that he received the Deposit Agreement for each account.

See Doc. 58 at 2. The Deposit Agreement contains a jury waiver provision, which is discussed in

further detail below. Doc. 56-3 at 2–3, 7. Kaplan reviewed online the balances of the Entity

Accounts to ensure sufficient funds existed before wiring any funds to SAA, but Regions’ systems

did not possess the ability to distinguish between “cleared” and “available” funds.1 Doc. 113 ¶¶23–

24. Kaplan invested in the “bundled deals,” which progressively grew larger, without incident from

November 2011 through January 2012. Id. at ¶26.

C. Kaplan I

In January of 2012, Kaplan made a series of wire transfers for large sums of money to

SAA. Id. at ¶¶28–29, 31–32, 36. Unbeknownst to Kaplan, however, Regions had placed a hold on

the reimbursement checks for one of the agreements between Kaplan and SAA after SAA’s bank

alerted Regions to possible fraud in SAA’s account. Id. at ¶33. SAA’s reimbursement checks to

Kaplan for these transfers subsequently failed to clear and were returned. Id. at ¶¶ 34, 36–37, 41–

1 Kaplan also alleges that he had no indication that Regions extended provisional credit when it

wire-transferred millions of dollars from the Entity Accounts based on SAA checks that had not

cleared after they were deposited. Doc. 113 ¶24.

42, 46–47. As a result, the Entity Accounts were overdrawn by millions of dollars. See id. at ¶¶42,

48.

Regions thereafter filed the Kaplan I lawsuit against Kaplan, Kaplan’s investment entities,

and others, seeking damages for the overdrafts. Id. at ¶48. Regions filed an amended complaint in

Kaplan I in 2013, which asserted tort claims against Kaplan and his investment companies for,

inter alia, fraudulent concealment, civil conspiracy, conversion, and aiding and abetting. Id. at

¶57. The trial in Kaplan I commenced in June of 2016. Id. at ¶60. The court subsequently ruled in

favor of Kaplan and against all of Regions’ tort claims. Id. at ¶61.

D. Present Action, Jury Trial Waiver, and Procedural History

Kaplan initiated this action in November of 2017, alleging claims against Regions for

malicious prosecution and abuse of process. Doc. 1 ¶¶67–87. The Court dismissed Kaplan’s abuse

of process claim in August of 2018. Doc. 37 at 10. In relevant part, Kaplan alleges that Regions

brought claims against Kaplan for fraudulent concealment, conversion, aiding and abetting

conversion, and civil conspiracy in Kaplan I when it knew or should have known that such claims

lacked a factual basis. Doc. 113 ¶69. Kaplan demands a jury trial for its claim. Doc. 32. Regions

moves to strike this jury trial demand and also requests the Court to take judicial notice of

numerous filings and documents in Kaplan I. Docs. 55, 57.

In support of its argument that Kaplan’s jury trial demand should be struck, Regions points

to the jury waiver clause in the Deposit Agreement. Doc. 55 at 15–18. As previously mentioned,

Kaplan received the Deposit Agreement when he opened the Personal Account and Entity

Accounts. See id. at 2–3; Doc. 58 at 2. The Deposit Agreement contains the following language

on its second page:

ARBITRATION AND WAIVER OF JURY TRIAL. THIS

AGREEMENT CONTAINS PROVISIONS FOR BINDING

ARBITRATION AND WAIVER OF JURY TRIAL. YOUR

ACCEPTANCE OF THIS AGREEMENT INCLUDES YOUR

ACCEPTANCE OF AN AGREEMENT TO SUCH PROVISIONS.

WHEN ARBITRATION IS INVOKED FOR CLAIMS SUBJECT

TO ARBITRATION, YOU AND REGIONS WILL NOT HAVE

THE RIGHT TO PURSUE THAT CLAIM IN COURT OR HAVE

A JURY DECIDE THE CLAIM AND YOU WILL NOT HAVE THE

RIGHT TO BRING OR PARTICIPATE IN ANY CLASS ACTION

OR SIMILAR PROCEEDING IN COURT OR IN ARBITRATION.

Doc. 56-3 at 2. The Deposit Agreement’s jury waiver clause is located within a section of the

Deposit Agreement entitled “ARBITRATION AND WAIVER OF JURY TRIAL.” Id. at 3. In

relevant part, that section provides, “Whether any controversy is arbitrated or settled by a

court, you and we voluntarily and knowingly waive any right to a jury trial with respect to

such controversy to the fullest extent allowed by law.”2 Id. at 7 (emphasis in original). The

Deposit Agreement defines “any controversy . . . between [Kaplan] and [Regions]” as a “Claim,”

which the Deposit Agreement affords a broad meaning. Id. at 3. Specifically, the Deposit

Agreement provides:

2 The Deposit Agreement defines “you” as:

“[A]s the context may require, any person or entity in whose name

the account is maintained according to our records, and/or any

person or entity that uses the account or is authorized to use transact

business on the account, by any means whatsoever, . . . and/or any

person or entity that has a beneficial interest in the account.

(Doc. 56-3 at 1). Similarly, the Deposit Agreement defines “we” and “us” as:

Regions Bank, and with respect to any BINDING ARBITRATION

AND/OR WAIVER OF JURY TRIAL provisions set forth in this

Agreement, such terms also mean and refer to Regions Bank and its

current and former parent(s), subsidiaries, affiliates, employees,

officers, directors, agents, controlling persons and representatives,

as well as any other person or company who provides any services

in connection with an account, as may exist from time to time.

Id. at 2 (emphasis in original).

Claim has the broadest possible meaning and includes, but is not

limited to, any controversy, claim, counterclaim, dispute or

disagreement arising out of, in connection with or relating to

any one or more of the following: (1) the interpretation,

execution, administration, amendment or modification of the

Agreement or any agreement; (2) any account; (3) any charge

or cost incurred pursuant to the Agreement or any agreement;

(4) the collection of any amounts due under the Agreement, any

agreement or any account; (5) any alleged contract or tort

arising out of or relating in any way to the Agreement, any

account, any agreement, any transaction, any advertisement or

solicitation, or your business interaction or relationship with us;

(6) any breach of any provision of the Agreement; (7) any

statements or representations made to you with respect to the

Agreement, any agreement, any account, any transaction, any

advertisement or solicitation, or your business, interaction or

relationship with us; (8) any property loss, damage or personal

injury; (9) any claim, demand or request for compensation or

damages from or against us; (10) any damages incurred on or

about our premises or property; or (11) any of the foregoing

arising out of, in connection with or relating to any agreement

which relates to the Agreement, any account, any credit, any

transaction or your business, interaction or relationship with us.

Id. at 3–4 (emphasis in original). The Deposit Agreement also states that the “waiver of jury trial

shall survive your death, the closing of your account and the termination of any of your business

or transaction(s) with us, any bankruptcy to the extent consistent with applicable bankruptcy law

and shall also survive as to any Claim covered within the scope of this [Deposit] Agreement.” Id.

at 6–7.

Upon consideration of the Motion, the Amended Request to Take Judicial Notice, the

response in opposition to the Motion, the reply, the supplemental reply, and the parties’ oral

arguments, Magistrate Judge Tuite issued the R&R. (Doc. 104). Magistrate Judge Tuite

recommends that the Court: (1) grant the Motion; and (2) grant-in-part the Amended Request to

Take Judicial Notice insofar as it relates to the Deposit Agreement. Id. at 14.

Following the entry of Magistrate Judge Tuite’s R&R, this Court ordered Kaplan to show

cause as to why this action should not be dismissed for lack of subject matter jurisdiction as a

result of Kaplan’s failure to properly plead diversity of citizenship. Doc. 111 at 4. Kaplan

subsequently filed a response and an amended complaint. Docs. 112, 113. Aside from omitting the

abuse of process claim and adding allegations to clarify the citizenship of the parties, the amended

complaint is identical to the original complaint.3 See Doc. 112 at 2; Doc. 113 ¶¶2–3.

II. Legal Standard

When a party makes a timely and specific objection to a magistrate judge’s report and

recommendation, the district judge “shall make a de novo determination of those portions of the

report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C.

§ 636(b)(1)(C). With regard to those portions of the report and recommendation not objected to,

the district judge applies a clearly erroneous standard of review. See Gropp v. United Airlines,

Inc., 817 F. Supp. 1558, 1562 (M.D. Fla. 1993). The district judge may accept, reject, or modify,

in whole or in part, the magistrate judge’s findings or recommendations. 28 U.S.C. § 636(b)(1)(C).

The district just may also receive additional evidence or recommit the matter to the magistrate

judge with instructions. Id; Local R. M.D. Fla. 6.02(a). “The district court retains the discretion to

consider new evidence and argument raised for the first time in an objection to a report and

recommendation.” Cooper v. Dolgencorp, LLC, No. 5:11-cv-158-Oc-10GJK, 2011 WL 13323145,

at *1 n.2 (M.D. Fla. June 24, 2011) (citing Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir.

2009)).

3 Kaplan’s filing of the amended complaint did not withdraw or otherwise invalidate his jury

demand. An amended complaint generally supersedes an original complaint, but a jury demand is

not an element of a complaint, even though it may be included in a pleading. Thomas v. Home

Depot USA, Inc., 661 F. App’x 575, 577–578 (11th Cir. 2016). Here, Kaplan timely filed a demand

separately from his initial complaint. Doc. 32. The Federal Rules of Civil Procedure govern the

manner in which a jury demand may be properly withdrawn. See Fed. R. Civ. P. 38. “Nothing in

the Federal Rules of Civil Procedure provides that a proper and complete jury demand can be

withdrawn by a later amended complaint totally silent on the issue of a jury trial.” Thomas, 661 F.

App’x at 578.

III. Analysis

Kaplan raises two main objections to the R&R: (1) Magistrate Judge Tuite erred in

concluding that the malicious prosecution claim falls within the scope of the jury waiver; and (2)

Magistrate Judge Tuite erred in concluding that the Deposit Agreement permits the jury waiver to

survive termination and cover claims arising thereafter. Doc. 107 at 4–12. The Court will address

each objection.

A. Judge Tuite Correctly Decided that the Malicious Prosecution Claim Falls

Within the Scope of the Jury Waiver

Kaplan argues that Magistrate Judge Tuite erred in concluding that the malicious

prosecution claim in this action falls within the scope of the jury waiver of the Deposit Agreement.

Upon review, the Court agrees with Magistrate Judge Tuite’s conclusion.

The Seventh Amendment to the United States Constitution preserves the right to a trial by

jury “[i]n suits at common law, where the value in controversy shall exceed twenty dollars.” U.S.

Const. amend. VII. Rule 38, Federal Rules of Civil Procedure, “preserve[s] to the parties inviolate”

the right of trial by jury under the Seventh Amendment.4 Fed. R. Civ. P. 38. Jury trial waivers must

be analyzed with “‘exacting scrutiny,’ indulging all reasonable presumptions against a finding of

waiver.” Strickland v. Wyndham Vacation Resorts, Inc., No. 6:13-cv-1000-Orl-23GJK, 2014 WL

12873407, at *3 (M.D. Fla. June 10, 2014) (quoting Mega Life & Health Ins. Co. v. Pieniozek, 585

F.3d 1399, 1403 (11th Cir. 2009)). “[B]ecause the right to a jury trial is fundamental, ‘courts must

indulge every reasonable presumption against waiver.’” Burns v. Lawther, 53 F.3d 1237, 1240

(11th Cir. 1995) (per curiam) (citing LaMarca v. Turner, 995 F.2d 1526, 1544 (11th Cir. 1993)).

4 A party may demand a jury trial on an issue triable of right by a jury by: “(1) serving the other

parties with a written demand—which may be included in a pleading—no later than 14 days after

the last pleading directed to the issue is served; and (2) filing the demand in accordance with Rule

5(d). Fed. R. Civ. P. 38(b). Unless a party properly serves and files its jury trial demand, that party

waives a jury trial. Fed. R. Civ. P. 38(d).

“[A] court’s discretion is very narrowly limited and must, wherever possible, be exercised to

preserve jury trial.” Borgh v. Gentry, 953 F.2d 1309, 1311 (11th Cir. 1992) (internal quotations

omitted). Nonetheless, against this backdrop, “[a] party may validly waive its Seventh Amendment

right to a jury trial so long as the waiver is knowingly and voluntary.” Bakrac, Inc. v. Villager

Franchise Sys., Inc., 164 F. App’x 820, 823 (11th Cir. 2006) (citing Brookhart v. Janis, 384 U.S.

1, 4–5 (1966)).

“It is well settled that the right to a jury trial in federal courts is determined by federal law

in diversity actions.” Allyn v. W. Life Assurance Co., 347 F. Supp. 2d 1246, 1251 (M.D. Fla. 2004)

(citing Simler v. Conner, 342 U.S. 221, 222 (1963)). This includes the enforceability of a jury

waiver clause. See id. In examining the enforceability of a jury waiver clause, courts generally

analyze whether a party knowingly and voluntarily waived its right to a jury trial by examining

several factors. Strickland, 2014 WL 12873407, at *3. Here, as Magistrate Judge Tuite pointed

out, Kaplan does not dispute the validity of the jury trial waiver, only the extent of its scope. Doc.

104 at 5 (“As is evident from Kaplan’s response to Regions’ motion to strike and as Kaplan made

clear at oral argument, he does not dispute the validity of the jury trial waiver . . . His chief

contention is instead that his claim for malicious prosecution falls outside the scope of that

waiver.”).

In determining whether a particular claim falls within a clause’s scope, courts within the

Eleventh Circuit examine the language of the clause. Bah. Sales Assoc., LLC v. Byers, 701 F.3d

1335, 1340 (11th Cir. 2012). In interpreting whether a claim falls within the scope of a clause, the

Eleventh Circuit Court of Appeals has emphasized that, “[u]nder general contract principles, the

plain meaning of a contract’s language governs its interpretation.” Slater v. Energy Servs. Grp.

Int’l, Inc., 634 F.3d 1326, 1330 (11th Cir. 2011) “The court must look at the contract as a whole,

the parties, and the purpose of the agreement to best determine the intent of the parties in

interpreting the agreement.” Id. at 1330. “A claim ‘relates to’ a contract when the dispute occurs

as a fairly direct result of the performance of contractual duties.” Byers, 701 F.3d at 1340–41

(quoting Slater, 634 F.3d at 1330–31). Although the Eleventh Circuit set forth this rule outside the

context of jury trial waivers, several courts in this Circuit have applied it when a party challenges

whether a claim falls within the scope of a jury trial waiver clause. See, e.g., Newton v. Wells Fargo

Bank N.A., No. 3:13-cv-1017-J-32MCR, 2013 WL 5854520, at *1 (M.D. Fla. Oct. 30, 2013); Napa

Overseas, S.A. v. Nextran Corp., No. 16-20862-CIV-MORENO, 2016 WL 6601451, at *2 (S.D.

Fla. Nov. 7, 2016); Thompson v. Caliber Home Loans, Inc., No. 15-21616-CIV-GAYLES, 2016

WL 278731, at *3 (S.D. Fla. Jan. 22, 2016). The Eleventh Circuit has also explained:

The fact that a dispute could not have arisen but for an agreement

does not mean that the dispute necessarily “relates to” that

agreement. The phrase “related to” marks a boundary by indicating

some direct relationship. Requiring a direct relationship between the

claim and the contract is necessary because, if “relate to” were taken

to extend to the furthest stretch of its indeterminacy, it would have

no limiting purpose because really, universally, relations stop

nowhere.

Byers, 701. F3d at 1341 (internal citations and alterations omitted).

In seeking to strike Kaplan’s jury demand, Regions argues that the present action is within

the scope of the jury waiver.5 Doc. 55 at 15. In his response in opposition, Kaplan argues that,

although the Deposit Agreement gave rise to Regions’ claims in Kaplan I to the extent that “the

5 Throughout much of the Motion, Regions argues that the doctrine of collateral estoppel precludes

Kaplan from relitigating facts and issues decided in Kaplan I and the jury trial waiver is

enforceable. (Doc. 55 at 6–15). Magistrate Judge Tuite did not address the collateral estoppel

argument in the R&R because Regions represented at the hearing on the Motion that it initially

made this argument in anticipation of Kaplan challenging Judge Kovachevich’s determination in

Kaplan I that he was bound by the jury waiver. (Doc. 104 at 12 n.6). Magistrate Judge Tuite

reasoned that resolving the merits of the collateral estoppel argument was thus unnecessary

because Kaplan failed to raise such a challenge. Id.

parties’ tort claims were directly related to the overdrafts and companion alleged breaches of the

[D]eposit [A]greement,” his claim in this action is in response to Regions’ own actions in Kaplan

I. Doc. 58 at 3. Kaplan does not dispute the validity of the jury waiver. Doc. 104 at 5. Instead,

Kaplan assets that his malicious prosecution claim in this action falls outside the scope of the jury

waiver. Docs. 58 at 2–4;107 at 4–8. Regions attacks Kaplan’s distinction and asserts that the jury

waiver’s language does not limit the type of disputes, claims, or controversies described therein.

Doc. 62 at 3–4.

Upon his review of the Deposit Agreement, Magistrate Judge Tuite found that a number of

the aforementioned categories within the jury waiver’s “Claim” definition cover Kaplan’s

malicious prosecution claim. Doc. 104 at 7. In addition to citing case law regarding expansive jury

waivers, Magistrate Judge Tuite highlighted that the Deposit Agreements for the accounts in this

case are the sole source of relationship between the parties and the alleged malicious prosecution

occurred as part of Regions’ effort to collect amounts due under the Deposit Agreements, at least

with respect to the Entity Accounts. Id. at 11. Magistrate Judge Tuite emphasized that the jury

waiver “extends to any claim arising out of or in connection with, among other things, any claim

or demand for compensation made by Kaplan against Regions, or any alleged torts committed by

Regions that arise out of or are related in any way to [the Entity Accounts] or Kaplan’s relationship

with the bank.” Id. at 12.

i. The Plain Language of the Jury Waiver Clause Covers the Malicious

Prosecution Claim

The Court begins, as it must, with the plain language of the jury waiver clause. As

previously mentioned, the jury waiver states that the parties knowingly and voluntarily waive any

right to a jury trial with respect to a “controversy” to the fullest extent allowed by law. Doc. 56-3

at 7. “[A]ny controversy . . . between [Kaplan] and [Regions]” is defined as a “Claim,” which the

Deposit Agreement in turn assigns the “the broadest possible meaning,” including, without

limitation, “any controversy, claim, counterclaim, dispute or disagreement arising out of, in

connection with or relating to any one or more of the” listed categories. Id. at 3. Consequently,

pursuant to this language, the parties knowingly and voluntarily waived any right to a jury trial

with respect to “any controversy, claim, counterclaim, dispute, or disagreement arising out of, in

connection with or relating to any one or more of the” listed categories.

Magistrate Judge Tuite cited two categories—categories (5) and (9)—as examples of

categories that cover Kaplan’s malicious prosecution claim. Doc. 104 at 7. The Court will address

these categories. First, as to the fifth category, the parties waived any right to a jury trial with

respect to any controversy, claim, or dispute arising out of, in connection with, or relating to any

alleged tort “arising out of or relating in any way to the [Deposit] Agreement, any account, any

agreement, any transaction, any advertisement or solicitation, or [Kaplan’s] business, interaction

or relationship with [Regions].” Doc. 53-3 at 3. Magistrate Judge Tuite explained:

The malicious prosecution claim is captured by category (5) because

that claim “aris[es] out of,” is “in connection with,” or “relat[es] to”

an “alleged tort” (i.e., the tort of malicious prosecution allegedly

committed by Regions) “arising out of or relating in any way to the

[Deposit] Agreement, any account” (i.e., the Entity Accounts), “any

transaction,” or Kaplan’s “business, interaction or relationship with”

Regions.

Doc. 104 at 7 (quoting 56-3 at 7) (alterations in original).

Another interpretation of this category is that it captures Kaplan’s malicious prosecution

claim in this action because the claim “aris[es] out of,” is “in connection with” or “relat[es] to” the

torts alleged by Regions against Kaplan in Kaplan I (i.e., fraudulent concealment, conversion,

aiding and abetting conversion, and civil conspiracy), as those alleged torts “aris[e] out of or

relat[e] in any way to the [Deposit] Agreement, any account, any transaction” or “[Kaplan’s]

business, interaction or relationship with [Regions].” Doc. 56-3 at 3. Thus, based on the plain

language of this category, Kaplan’s malicious prosecution claim falls within the scope of the

waiver.

Next, as to the ninth category, the parties waived any right to a jury trial with respect to

any controversy, claim, or dispute arising out of, in connection with, or relating to, “any claim,

demand or request for compensation or damages from or against [Regions].” Doc. 56-3 at 4.

Magistrate Judge Tuite found that this category covered Kaplan’s malicious prosecution claim

because the claim “is made ‘in connection with or relating to’ a ‘claim’ or ‘demand’ for

‘compensation or damages from or against’ Regions.” Doc. 104 at 7. The Court agrees with this

interpretation. The plain language of this category covers Kaplan’s malicious prosecution claim

because the claim constitutes a “controversy, claim . . .[or] dispute” that is “in connection with or

relating to” a “claim, demand, or request for compensation or damages from or against” Regions,

as the claim is in connection with or relating to Kaplan’s demand for “compensatory and special

damages, punitive damages, attorney’s fees and costs,” and other just relief “from or against”

Regions. Doc. 113 at 16. Because the Court agrees with Magistrate Judge Tuite that the fifth and

ninth categories cover Kaplan’s malicious prosecution claim, an examination of the remaining

categories is unwarranted.

A review of the Deposit Agreement as a whole, the parties, and the Deposit Agreement’s

purpose does not alter this conclusion. The present lawsuit is between Kaplan and Regions. Both

parties are parties to the Deposit Agreement. Kaplan entered into the Deposit Agreement with

Regions with respect to the Personal Account, and Kaplan entered into the Deposit Agreement

with Regions on behalf of his investment companies with respect to the Entity Accounts. See Doc.

55 at 2–3. The Deposit Agreement “covers any and all deposit accounts you have or have had from

time to time with Regions Bank, by whatever name or description, including, but not limited to,

checking accounts, savings accounts, money market deposit accounts, time deposit accounts, and

certificates of deposit.” Doc. 56-3 at 1. In setting forth the terms related to this purpose, the Deposit

Agreement has an expansive, yet not limitless, reach. The malicious prosecution claim relates to

Kaplan I and, although the parties dispute the degree, ultimately arises from the Deposit

Agreement. Although this “but-for” connection certainly does not, by itself, mean the malicious

prosecution claim necessarily is linked to the Deposit Agreement, the Deposit Agreement’s

intentionally expansive language, in conjunction with the nature of the malicious prosecution

claim, does not disturb the conclusion that the jury waiver covers the claim.

Therefore, the plain language of the jury waiver encompasses Kaplan’s malicious

prosecution claim.

ii. Kaplan’s Additional Arguments are Unavailing

Kaplan generally argues that the Court’s analysis must focus on whether the parties’

relationship has its source in the Deposit Agreement and should not ignore the fundamental right

to a jury trial. Doc. 107 at 4–8. The Court disagrees with Kaplan’s arguments.

Kaplan does not attack the plain language of the jury waiver provisions in his Objection.

Kaplan instead argues that this analysis “overlooks the fact that the right to a jury trial is a

fundamental constitutional right” and “in the context of jury waivers[,] all permissible inferences

are construed against waiver.”6 Doc. 107 at 4 (internal emphasis omitted). The Court is cognizant

6 Kaplan seemingly reiterates these arguments in a final, succinct objection to the R&R, devoid of

any supporting authority, in which he asserts that public policy and fairness cannot support

upholding the jury waiver. Doc. 107 at 12–13. Whether a jury waiver is unconscionable, contrary

to public policy, or unfair is typically analyzed in the context of whether a party knowingly and

voluntarily agreed to its terms. See, e.g., Allyn, 347 F. Supp. 2d at 1252; Hooper v. Ideal Image

Dev. Corp., No. 8:14-cv-2778-T-30EAJ, 2015 WL 1508494, at *2 (M.D. Fla. Apr. 1, 2015).

Kaplan does not dispute the validity of the jury waiver. Doc 104 at 5. Kaplan does not argue that

he did not knowingly and voluntarily agree to its terms. Thus, in light of his stipulation to the

validity of the jury waiver and the analysis herein, this argument is unavailing.

of these principles. However, “[i]n the contractual waiver context, overcoming the presumption

[against waiver] requires that the waiver be knowing and voluntary.” Penn Nat’l Mut. Ins. Co. v.

IPSCO Steel (Ala.), Inc., No. 07-0524-WS-M, 2009 WL 10695238, at *2 (S.D. Ala. Jan. 8, 2009).

Here, there is no dispute regarding the waiver’s validity, only its scope. Doc. 104 at 5. Furthermore,

recognizing the fundamental constitutional right of a jury trial and the indulgence of all reasonable

presumptions against waiver does not provide Kaplan with a basis to subvert the plain language of

the waiver, the validity of which, again, Kaplan does not dispute. Id. While the Court must indulge

all reasonable presumptions against waiver in interpreting the language of the waiver clause, its

obedience to this cannon of interpretation should not result in the Court overriding or re-writing

the clear and unambiguous language of the clause. “However strong the presumption against

waiver may be, it cannot be applied in a manner that trumps the plain meaning of a contractual

waiver.” Fifth Third Bank by R-G Crown Bank, FSB v. Qureshi, No. 6:09-cv-1519-Orl-18DAB,

2010 WL 11623678, at *4 (M.D. Fla. Feb. 24, 2010).

Next, in the R&R, Magistrate Judge Tuite rejected Kaplan’s assertion that the jury waiver

does not apply to the malicious prosecution claim because the claim stems from Regions’ “‘bad

actions’ in Kaplan I, and those actions were not ‘in anyway dependent on the Deposit Agreements’

themselves.” Doc. 104 at 8–9 (quoting Doc. 58 at 2–4) (internal alterations omitted). The Objection

reiterates that the malicious prosecution claim falls outside the scope of the Deposit Agreement,

in which Kaplan argues that the analysis “must extend beyond whether or not there is a relationship

between the parties, but whether that relationship has its source in the agreement containing the

waiver.” Doc. 107 at 5 (emphasis added). Kaplan argues that “the relationship contemplated by

the Deposit Agreements is that of bank/banking customer” and that “[t]he claims and controversies

described by the waiver clause must be viewed in light of that relationship” between the parties.7

Id. at 8.

This argument is problematic in light of the waiver’s plain language. As continuously

emphasized herein, the jury waiver is undoubtedly broad by its plain language, as it assigns the

“broadest possible meaning” to Claim, which, in turn, includes, without limitation, eleven

categories, some of which are quite expansive. Doc. 56-3 at 3, 7. Indeed, Magistrate Judge Tuite

recognized that the jury waiver’s scope was “expansive by any measure.” Doc. 104 at 7. The

relevant categories in the Deposit Agreement’s jury waiver do not limit the jury waiver to only

those controversies, claims, disputes, or disagreements arising out of, in connection with, or

relating to the Deposit Agreement. Pursuant to the fifth category, the parties waived any right to a

jury trial with respect to “any controversy, claim, counterclaim, dispute or disagreement arising

7 Kaplan relies heavily on Smith v. Lucent Technologies, Inc., No. Civ.A. 02-0481, 2004 WL

515769, at *1 (E.D. La. Mar. 16, 2004). This case is not binding upon this Court and, upon review,

its facts are distinguishable. In Smith, Actel Integrated Communications, Inc. (“Actel”) signed an

agreement with Lucent Technologies, Inc. (“Lucent”), whereby Lucent agreed to provide

communications software and support. Id. at *1–2. Actel entered into a subsequent lending

agreement with Lucent’s subsidiary for working capital and expenses to finance the purchase. Id.

at *2. Lucent’s technology did not function properly, however, which resulted in Lucent and Actel

entering into a loan and security agreement (the “2000 Agreement”) to advance certain funds to

Actel. Id. The 2000 Agreement contained a jury waiver clause, which stated that “Borrower” and

“Lender” agreed to waive the right to trial by jury in an action or proceeding arising out of or

relating to the 2000 Agreement or any conduct, acts, or omissions of “Lender” or “Borrower” or

their agents in “all foregoing cases,” whether sounding in tort or contract or otherwise. Id. at *19.

Lucent moved to strike the jury demand in a subsequent lawsuit by Actel’s bankruptcy trustee

based on this language. Id. at *18. The court explained that the trustee’s claims were unrelated to

the lender-borrower relationship established by the 2000 Agreement. Id. at *19. The court

accordingly found that presuming that the jury waiver provision extended to contract or tort claims

that did not relate in any way to “any loan or financing or any aspect of the lender/borrower

relationship” was unreasonable. Id. at *20. Unlike Smith, in which the 2000 Agreement referred

to the parties as “Borrower” and “Lender,” the jury waiver in the Deposit Agreement does not use

such limiting terms to define Kaplan and Regions. On the contrary, the terms used to refer to the

parties are quite broad. Applying the same analysis as Smith, as Kaplan encourages the Court to

do, would subvert the plain language of the Deposit Agreement and waiver clause.

out of, in connection with or relating to . . . any alleged contract or tort arising out of or relating in

any way to the [Deposit] Agreement, any account, any agreement, any transaction, any

advertisement or solicitation, or your business, interaction, or relationship with us . . . .” Doc. 56-

3 at 3, 7 (emphasis added). Similarly, pursuant to the ninth category, the parties waived any right

to a jury trial with respect to “any controversy, claim, counterclaim, dispute or disagreement

arising out of, in connection with or relating to . . . any claim, demand or request for compensation

or damages from or against us.” Id. at 3–4, 7.

For the same reason, the line of cases that apply Byers to determine whether a contract’s

jury waiver provisions cover a subsequent claim brought by one of the parties to the contract is

unavailing. As mentioned above, the Eleventh Circuit has recognized that “[a] claim ‘relates to’ a

contract when the dispute occurs as a fairly direct result of the performance of contractual duties.”

Byers, 701 F.3d at 1340–41 (quoting Slater, 634 F.3d at 1330–31). Courts within this Circuit have

applied this rule to determine whether a contract’s jury waiver provision covers a subsequent claim

brought by one of the parties to the contract. See, e.g., Newton, 2013 WL 5854520, at *1; Napa

Overseas, 2016 WL 6601451, at *2; Thompson, 2016 WL 278731, at *3. However, because the

rule applies when interpreting whether a claim relates to a contract, the jury waiver clauses in each

of these cases waived a jury trial in actions, proceedings, or claims arising out of or relating in any

way to the contract itself. As a result, these cases are distinguishable from the instant action.

For example, the mortgage’s jury waiver clause in Newton provided: “The Borrower

hereby waives any right to trial by jury in any action, proceeding, claim, or counterclaim, whether

in contract or in tort, at law or in equity, arising out of or in any way related to this Security

Instrument or Note.” 2013 WL 5854520, at *1 (emphasis added). Given the waiver’s language,

the court’s analysis focused on whether the plaintiff’s subsequent TCPA claims arose out of or

were related to the mortgage, and the court reiterated that Byers required the court to examine

whether the “dispute occur[ed] as a fairly direct result of the performance of contractual duties” in

interpreting whether the claim related to the mortgage. Id. (internal quotations omitted). Similarly,

the plaintiff in Thompson executed a note and mortgage, which the court referred to collectively

as the “Mortgage,” with Wilmington Finance, Inc. 2016 WL 278731, at *1. The jury waiver

provision therein was identical to the jury waiver in Newton. Id. The plaintiff thereafter filed a

lawsuit against the subsequent holder of the Mortgage and the loan servicer for the Mortgage,

alleging that the two entities engaged in illegal debt collection practices after she became

delinquent on the debt. Id. After resolving the defendants’ standing to challenge the applicability

of the waiver clause to the plaintiff’s claims, the court addressed the scope of the waiver, which,

based on the waiver’s language, involved examining whether the plaintiff’s claims related to the

Mortgage.8 Id. at *2–4. A review of similar cases reveals that the jury waivers in those cases were

also tailored to the particular agreement in which the waiver was located. See, e.g., Levinson v.

Green Tree Servicing, LLC, No. 8:14-cv-2120-EAK-TGW, 2015 WL 1912276, at *1 (M.D. Fla.

Apr. 27, 2015); Bank of Am., N.A. v. Zasky, No. 9:15-cv-81325-ROSENBERG/HOPKINS, 2016

WL 8787295, at *1 (S.D. Fla. Sept. 19, 2016).

In contrast to this line of cases, the relevant categories in the Deposit Agreement’s jury

waiver do not limit the jury waiver to only those controversies, claims, disputes, or disagreements

8 By way of another example, the agreement between the parties in Napa Overseas stated, in

relevant part: “The parties hereby irrevocably and unconditionally waive any right they may have

to a trial by jury in any suit, action, proceeding, or counterclaim arising out of or relating to this

sales agreement.” 2016 WL 6601451 at *2. After the plaintiff executed the agreement with the

defendant and subsequently filed a lawsuit against the defendant, the defendant moved to strike

the plaintiff’s jury demand. Id. at *1. Because the agreement stated that the parties waived any jury

trial right in “any suit action, proceeding, or counterclaim arising out of or relating to” the

agreement, the court was tasked with “determin[ing] whether any of [the plaintiff’s] contested

claims ‘ar[o]se out of or relat[ed]’ to the” agreement. Id. at *2.

arising out of, in connection with, or relating to the Deposit Agreement. Pursuant to the fifth

category, the parties waived any right to a jury trial with respect to “any controversy, claim,

counterclaim, dispute or disagreement arising out of, in connection with or relating to . . . any

alleged contract or tort arising out of or relating in any way to the [Deposit] Agreement, any

account, any agreement, any transaction, any advertisement or solicitation, or your business,

interaction, or relationship with us . . . .” Doc. 56-3 at 3, 7 (emphasis added). Similarly, pursuant

to the ninth category, the parties waived any right to a jury trial with respect to “any controversy,

claim, counterclaim, dispute or disagreement arising out of, in connection with or relating to . . .

any claim, demand or request for compensation or damages from or against us.” Id. at 3–4, 7. The

plain language of the applicable categories of the jury waiver here is more expansive than the

language in the foregoing cases. Unlike the foregoing cases, the claims covered by these two

categories are not anchored to only the Deposit Agreement. Consequently, any analysis of whether

the claim “relates to” the Deposit Agreement is unavailing, as the applicable categories, while not

limitless, nonetheless cover claims beyond those that simply “relate[] to” the Deposit Agreement.

Regardless, relying on Byers and its prodigy to interpret “relates to” as “a fairly directly

result” compels the same conclusion. For example, applying this interpretation when examining

the fifth category of the jury waiver, Kaplan waived any right to a jury trial with respect to “any

controversy, claim, counterclaim, dispute or disagreement” occurring as a fairly direct result of

“any alleged contract or tort” occurring as a fairly directly result “in any way to the [Deposit]

Agreement, any account, any agreement, any transaction, any advertisement or solicitation, or

[Kaplan’s] business, interaction or relationship with [Regions].” Doc. 56-3 at 3, 7. This

interpretation of the fifth category of the jury waiver clause would capture Kaplan’s malicious

prosecution claim because the claim occurred as a fairly direct result of the torts alleged by Regions

against Kaplan in Kaplan I, which occurred as a fairly direct result in any way to the Deposit

Agreement.

Accordingly, for all of the foregoing reasons, Magistrate Judge Tuite correctly found that

Kaplan’s malicious prosecution claim falls within the scope of the jury waiver provision.

B. Magistrate Judge Tuite Correctly Held that the Jury Waiver Survives the

Closure of the Accounts

Magistrate Judge Tuite rejected Kaplan’s argument that the jury waiver clause does not

survive the closure of the accounts with Regions. Doc. 104 at 12. Upon review, the Court agrees

with Magistrate Judge Tuite that the jury waiver survives the closure of the accounts.

The Deposit Agreement’s jury waiver section includes a survival clause, which states:

This agreement to arbitrate disputes and waiver of jury trial shall

survive your death, the closing of your account and the termination

of any of your business or transaction(s) with us, any bankruptcy to

the extent consistent with applicable bankruptcy law and shall also

survive as to any Claim covered within the scope of this [Deposit]

Agreement.

Doc. 56-3 at 6–7. Similarly, the Deposit Agreement also contains a section entitled “Construction

of Agreement,” which provides:

46. Construction of Agreement . . . No termination of any account

will affect your liability or obligations under this [Deposit]

Agreement accruing prior to the date of termination or any

provisions of this [Deposit] Agreement which, by their terms or

nature, are intended to survive account termination.

Id. at 27. When read together, these sections clearly demonstrate that the jury waiver clause

survives the closure of Kaplan’s accounts with Regions. The survival clause of the jury waiver

section explicitly states that the waiver survives the closing of Kaplan’s account and the

termination of any of Kaplan’s business or transactions with Regions. Kaplan avers that it is

undisputed that the accounts and the deposit relationship were terminated in 2012. Doc. 107 at 9.

The “Construction of Agreement” provision states that a termination of any account will not affect

any provisions of the Deposit Agreement that, by their terms or nature, are intended to survive

account termination. By virtue of its survival clause, the jury waiver qualifies as a provision of the

Deposit Agreement that is intended to survive account termination. Thus, the plain language of

these clauses is “fatal to Kaplan’s argument.” Doc. 104 at 12.

After beginning by asserting that Magistrate Tuite erred in concluding that the jury waiver

survived the termination of the Deposit Agreement, Kaplan combats the plain language cited

above, arguing that “a fair reading” of the “Construction of Agreement” provision contradicts

Magistrate Judge Tuite’s conclusion. Doc. 107 at 8–10. Kaplan points to the first clause of the

“Construction of Agreement” section, which states, “No termination of any account will affect

your liability or obligations under this [Deposit] Agreement accruing prior to the date of

termination . . . .” Id. at 9 (quoting Doc. 56-3 at 27). Based solely on this language, Kaplan argues,

Magistrate Judge Tuite’s analysis overlooks that the malicious prosecution claim arose after

Kaplan’s termination of the accounts. Doc. 107 at 9–10. Significantly, Kaplan does not address

the section’s remaining language, which states that a termination of any account will not affect

any provisions of the Deposit Agreement that are intended by their terms or nature to survive

account termination. The Court agrees with Regions that “accruing prior to the date of termination”

modifies “your liability or obligations under this [Deposit] Agreement.” Doc. 110 at 14. Because

Kaplan’s analysis avoids the remaining language of the section, he necessarily omits mentioning

the jury waiver’s survival clause. As stated above, these two sections demonstrate that the jury

waiver survives account termination.

Kaplan next argues that Magistrate Judge Tuite’s conclusion and Regions’ arguments

“create a logical problem” because the jury waiver would be limitless and would apply “regardless

of when a claim or controversy arises.” Kaplan further contends that “while the jury clause

survives, it does not survive to encompass any conceivable claim arising years in the future.” Doc.

107 at 9. Kaplan maintains, yet again, that the “appropriate” focus is on whether the malicious

prosecution claim “arose directly from the Deposit Agreement and the banking relationship while

the Deposit Agreement was in effect.” Id. This attempt to avoid the plain language of the Deposit

Agreement is unsuccessful. Contrary to the parade of horribles that Kaplan portrays, the jury

waiver clause applies only to those claims that fall within one of the clause’s enumerated

categories. Furthermore, the Court previously rejected Kaplan’s effort to shift the focus away from

the plain language of the Deposit Agreement to the “banking relationship” between the parties in

its discussion of the Deposit Agreement’s plain language. Kaplan does not cite, nor has the Court

found, any case law addressing jury waiver interpretation to support his proposition that the jury

waiver clause survives as to only certain types of claims. Kaplan instead relies on cases addressing

forum-selection or arbitration clauses. Docs. 107 at 11–12. The facts of these cases are

distinguishable from the instant action, however, and ultimately the cases are unpersuasive.

Therefore, for the reasons discussed above, Magistrate Judge Tuite correctly held that the

jury waiver survives the closure of the accounts.

C. Magistrate Judge Tuite Did Not Clearly Err in Recommending the Court

Take Judicial Notice of Only the Deposit Agreement

Regions also filed its Amended Request to Take Judicial Notice, in which Regions requests

the Court to take judicial notice of numerous filings from Kaplan I, including trial transcripts,

pleadings, and orders. Doc. 57 at 1–2. Magistrate Judge Tuite recommended granting this request

in-part and only to the extent of taking judicial notice of the Deposit Agreement, as Kaplan does

not dispute the validity of the jury waiver and the existence and accuracy of the Deposit Agreement

is not reasonably in dispute. Kaplan did not object to Magistrate Judge Tuite’s recommendation.

“Judicial notice is a means by which adjudicative facts not seriously open to dispute are

established as true without the normal requirement of proof by evidence.” Dippin’ Dots, Inc. v.

Frosty Bites Distribution, LLC, 369 F.3d 1197, 1204 (11th Cir. 2004). Judicial notice is appropriate

at any stage of the proceeding. Fed. R. Evid. 201(d). Under Rule 201(b), judicial notice of an

adjudicative fact is appropriate when such fact (1) is generally known within the court’s territorial

jurisdiction; or (2) is capable of being accurately and readily determined from sources whose

accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b). An adjudicative fact is a fact that

is “relevant to a determination of the claims presented in a case.” Dippin’ Dots, Inc., 369 F.3d at

1204. A court must take judicial notice if a party requests the court to take judicial notice and the

court is supplied with the requisite information. Fed R. Evid. 201(c)(2). The Eleventh Circuit has

cautioned that “the taking of judicial notice of facts is, as a matter of evidence law, a highly limited

process” because “judicial notice bypasses the safeguards which are involved with the usual

process of proving facts by competent evidence in [the] district court.” Shahar v. Bowers, 120 F.3d

211, 214 (11th Cir. 1997).

Courts may take judicial notice of record documents from other proceedings. Griffin v.

Verizon Comm’cns Inc., 746 F. App’x 873, 876 (11th Cir. 2018) (per curiam). Documents from

the public docket of a federal judicial proceeding are not subject to reasonable dispute. Id. See also

Makro Cap. Of Am., Inc. v. UBS AG, 436 F. Supp. 2d 1342, 1350 (S.D. Fla. 2006) (“Documents

filed with this or other courts certainly constitute ‘public records.’”) Furthermore, “a court may

take judicial notice of a document filed in another court not for the truth of the matters asserted in

the other litigation, but rather to establish the fact of such litigation and related filings. A court

may thus take judicial notice of another court’s order only for the limited purpose of recognizing

the judicial act that the order represents or the subject matter of the litigation.” United States v.

Jones, 29 F.3d 1549, 1553 (11th Cir. 1994). However, because judicial notice pertains to only

adjudicative facts, a court may decline to take judicial notice of facts which are irrelevant to the

proceeding. See, e.g., United States v. Falcon, 957 F. Supp. 1572, 1585 (S.D. Fla. 1997), aff’d,

168 F.3d 505 (11th Cir. 1999) (“A court may refuse to take judicial notice of facts that are

irrelevant to the proceeding.”); NAFL Invs., Ltd. v. Van Ness Feldman LLP, No. 2:18-cv-183-FtM-

99MRM, 2018 WL 2717440, at *4 (M.D. Fla. June 6, 2018) (denying the defendant’s request for

the Court to take judicial notice of separate litigation because the documents and materials from

that litigation were “immaterial to the Court’s determination” of the instant motion); Couch v.

Broward Cnty., No. 11-62126-CIV, 2012 WL 2007148, at *1 (S.D. Fla. June 5, 2012) (denying

the plaintiff’s motions for judicial notice because, among other reasons, the facts were irrelevant).

See also Blass v. Flagstar Bancorp, Inc., 841 F. Supp. 2d 1280, 1285 (S.D. Fla. 2012) (denying

the defendants’ motion for judicial notice because such notice proved unnecessary for full

resolution of the accompanying motion).

As Kaplan did not object to Magistrate Judge Tuite’s recommendation that the Amended

Request to Take Judicial Notice, the Court reviews Magistrate Judge Tuite’s recommendation for

clear error. See Gropp, 817 F. Supp. at 1562. Regions filed the Amended Request to Take Judicial

Notice concurrently with the Motion and an “Amended Notice of Filing,” which lists twenty-seven

exhibits, totaling five-hundred five pages. See generally Docs. 55, 56, 57. The Amended Request

to Take Judicial Notice requests the Court to take judicial notice of thirteen of these documents,

all of which were filed in Kaplan I, in connection with the Court’s review of the Motion. Doc. 57

at 1–2, 4 (“The Court should take judicial notice of the above-specified documents on Regions’

amended motion to strike Kaplan’s jury demand.”). As previously mentioned, Regions devoted

much of the Motion to arguing that the doctrine of collateral estoppel precludes Kaplan from

relitigating facts and issues decided in Kaplan I. Doc. 55 at 6–15. As a result, the Motion cited to

filings from Kaplan I in an attempt to provide background information of that action. However,

Kaplan did not challenge the determination in Kaplan I that he was bound by the jury waiver, Doc.

104 at 12 n.6, which narrowed the focus of the argument to whether Kaplan’s malicious

prosecution claim fell within the scope of the jury waiver and his subsequent argument that the

jury waiver did not survive, see Docs. 55 at 15–18; 58 at 2–4; 62 at 1–5. Although Regions relied

on Kaplan’s Amended Counterclaim and Crossclaims and the order striking the jury demand to

argue in his papers that the malicious prosecution claim fell within the scope of the jury waiver,

id. at 15–16; Doc. 62 at 3, Magistrate Judge Tuite ultimately found only the Deposit Agreement

relevant to deciding the Motion, as Kaplan had not challenged the validity of the jury waiver, Doc.

104 at 13.

This recommendation does not constitute clear error, as the Court is not left “with the

definite and firm conviction that a mistake has been committed.” Coggin v. C.I.R., 71 F.3d 855,

860 (11th Cir. 1996). As demonstrated above, courts may refuse to take judicial notice if the

documents are irrelevant to the proceeding or if the documents are immaterial or unnecessary to

the resolution of the accompanying motion. For example, in NAFL Investments, the plaintiff-client

filed a lawsuit against the defendant-law firm arising out of the plaintiff’s use of the defendant’s

services in connection with a real property transaction with the Government, in which the

Government paid for the plaintiff’s land in Florida by trading land in Arizona, which was

accompanied by certain financing. 2018 WL 2717440, at *1. Prior to the plaintiff commencing its

lawsuit against the defendant, the Government had filed an action against the plaintiff in Arizona,

in which the plaintiff had also retained the defendant. Id. at *2. The Arizona court subsequently

ruled in favor of the Government. Id. In moving to dismiss the plaintiff’s complaint, the defendant

moved the court to take judicial notice “of the entirety of the Arizona litigation, including factual

findings and deposition testimony.” Id. at *3. The court denied the defendant’s request, reasoning

that the requested documents and evidence were “immaterial to the Court’s determination” of the

Motion. Id. at *4. Here, with the exception of the Deposit Agreement, Magistrate Judge Tuite

found all the requested filings from Kaplan I to be immaterial to his ultimate determination on the

issues. Magistrate Judge Tuite found the Deposit Agreement to be relevant to the determination of

the malicious prosecution claim, however. As he highlighted, the existence and accuracy of the

Deposit Agreement is not reasonably in dispute and, in fact, is not disputed. Magistrate Judge Tuite

did not take judicial notice of the Deposit Agreement for the truth of the matter asserted in the

other litigation, either. Thus, upon review, absent from the Court’s evaluation of this

recommendation is “a definite and firm conviction that a mistake has been committed.” Coggin,

741 F.3d at 860.

Therefore, the Court will adopt Magistrate Judge Tuite’s recommendation to grant-in-part

the Amended Request to Take Judicial Notice, insofar as it relates only to the Deposit Agreement.

IV. Conclusion

Accordingly, it is now ORDERED:

1. The Report and Recommendation of Magistrate Judge Tuite, Doc. 104, is ADOPTED,

CONFIRMED, and APPROVED in all respects and is made a part of this Order for

all purposes, including appellate review.

2. Plaintiff Marvin I. Kaplan’s objections to the Report and Recommendation, as set forth

in the Exceptions/Objections to the Magistrate’s Order Striking Plaintiff’s Jury

Demand, Doc. 107, are OVERRULED.

3. Defendant Regions Bank’s Amended Motion to Strike Kaplan’s Jury Demand and

Supporting Memorandum of Law, Doc. 55, is GRANTED. Plaintiff Marvin I.

Kaplan’s Demand for Jury Trial, Doc. 32, is STRICKEN.

4. Defendant Regions Bank’s Amended Request to Take Judicial Notice on Amended

Motion to Strike Jury Demand, Doc. 57, is GRANTED-IN-PART and DENIED-IN-

PART, insofar as the Court takes judicial notice of the Deposit Agreement only.

DONE AND ORDERED in Tampa, Florida on September 25, 2019.

Chale Aiwarda Kn FLA sl el □□

Charlene Edwards Honeywell

United States District Judge

Copies to:

Counsel of Record and Unrepresented Parties, if any

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