Speedfit LLC v. Woodway USA, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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SPEEDFIT LLC and AUREL A.

ASTILEAN,

Plaintiffs,

MEMORANDUM & ORDER

13-CV-1276 (KAM)(AKT)

-against-

WOODWAY USA, INC.,

Defendant.

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MATSUMOTO, United States District Judge:

Defendant Woodway USA, Inc. (“Woodway” or “defendant”)

moves to strike the jury demand of plaintiffs Speedfit LLC

(“Speedfit”) and Aurel A. Astilean (“Astilean”) (collectively,

“plaintiffs”). Plaintiffs commenced this litigation against

defendant in 2013. After seven years, four pleading amendments,

extensive discovery, intensive motion practice, and the

dismissal of all but one of plaintiffs’ claims at summary

judgment, this case is finally ready for trial. For the reasons

discussed below, however, that trial will not be held before a

jury, but will be conducted by the court. Plaintiffs’ sole

remaining cause of action is for unjust enrichment, a claim

which is traditionally considered to be equitable and, here,

seeks an equitable remedy. For the reasons that follow,

defendant’s motion to strike plaintiffs’ jury demand is granted.

BACKGROUND

Familiarity with the factual and procedural history of

this matter is assumed, as set forth comprehensively in this

court’s prior orders concerning this litigation. See Speedfit

LLC, et al. v. Woodway USA, Inc., 53 F. Supp. 3d 561 (E.D.N.Y.

2014) (denying Woodway’s motion to dismiss and motion to

transfer); Speedfit LLC, et al. v. Woodway USA, Inc., No. 13-CV-

1276, 2015 WL 6143697 (E.D.N.Y. Oct. 19, 2015) (granting leave

to file a Third Amended Complaint); Speedfit LLC, et al. v.

Woodway USA, Inc., 226 F. Supp. 3d 149 (E.D.N.Y. 2016) (granting

in part and denying in part Woodway’s motion to dismiss Third

Amended Complaint); Speedfit LLC, et al. v. Woodway USA, Inc.,

No. 13CV1276KAMAKT, 2020 WL 108646 (E.D.N.Y. Jan. 9, 2020)

(“Summary Judgment Order”) (granting in part and denying in part

Woodway’s motion for summary judgment and denying plaintiffs’

motion for summary judgment). The court recounts only those

facts pertinent to the disposition of the instant motion.

Speedfit, co-founded by plaintiff Aurel Astilean, is a

New York-based company that develops fitness programs and

equipment. (ECF No. 150, Supplemental Complaint (“Supp.

Compl.”) ¶¶ 8-9.) Defendant Woodway is a Wisconsin-based

corporation that designs, manufactures, and sells fitness and

exercise products, including non-motorized treadmills with a

curved running surface. (Id. ¶ 10.)

Plaintiffs filed the operative Supplemental Complaint

on February 10, 2017, alleging claims of patent infringement,

breach of contract, unjust enrichment, and constructive trust.

(See generally Supp. Compl.) Plaintiffs designated “Jury Trial

Demanded” on the cover page of their pleading. (Id.) The

Supplemental Complaint alleges that Astilean disclosed the

prototype of a curved, non-motorized treadmill (“Wooden

Prototype”) to Woodway in December 2008, one month after

Astilean filed a provisional patent application to protect his

treadmill invention. (Id. ¶¶ 40-41.) After meeting with

Douglas Bayerlein, Woodway’s president, to discuss the treadmill

prototype, Astilean worked with a Woodway engineer, Nicholas

Oblamski, to build a model of the treadmill for a tradeshow.

(Id. ¶¶ 19, 41.) According to plaintiffs, Woodway subsequently

misappropriated plaintiffs’ unique concept, design, and patent

rights by filing its own patent application for a curved, non-

motorized treadmill, and by selling it under the tradename

“Curve.” (Id. ¶¶ 2, 39.) Plaintiffs allege that Woodway’s

income from Curve sales constitutes unjust enrichment. (Id. ¶¶

7, 72-74.) The Supplemental Complaint seeks “money damages” in

excess of $20,000,000, corresponding to Woodway’s “receipt of

proceeds of the sale of the Curve . . . .” (Id. ¶ 73, Prayer

for Relief ¶ 2.)

On January 9, 2020, the court issued a Memorandum and

Order granting in part, and denying in part, the parties’ cross-

motions for summary judgment. (See generally Summary Judgment

Order, 2020 WL 108646.) In pertinent part, the Summary Judgment

Order granted defendant’s motion for summary judgment and

dismissed plaintiffs’ patent infringement, breach of contract,

and constructive trust claims. (Id.) The court determined,

however, that genuine disputes of material fact existed with

respect to plaintiffs’ unjust enrichment claim, and denied both

parties’ motions for summary judgment on unjust enrichment.

(Id. at *21-23.)

On January 16, 2020, Woodway filed a letter with the

court seeking a pre-motion conference for its anticipated motion

to strike plaintiffs’ jury demand. (ECF No. 317.) Following

the pre-motion conference, the court issued an order on January

22, 2020, instructing the parties to simultaneously brief the

following issues: (1) whether striking plaintiffs’ jury demand

or impaneling a jury would constitute reversible error; and (2)

the impact, if any, of plaintiffs potentially moving to amend

their pleading at trial with the addition of legal claims,

pursuant to Federal Rule of Civil Procedure 15(b). (Dkt. Order

dated Jan. 22, 2020.) The parties filed their briefs on

February 5, 2020.

Defendant’s core contention is that plaintiffs do not

have a right to a jury trial because their sole surviving unjust

enrichment claim is equitable in nature, as is the disgorgement

remedy it seeks. (See ECF No. 328, Def.’s Mot.) Plaintiffs

maintain they are entitled to a trial by jury for the following

reasons: (1) plaintiffs’ sought-after money judgment makes their

unjust enrichment claim, in essence, a legal, rather than

equitable claim; (2) the unjust enrichment claim is synonymous

with quantum meruit and “money had and received” causes of

action, both legal claims warranting a jury trial; and (3) the

court must refrain from striking plaintiffs’ jury demand because

plaintiffs may yet move to amend the Supplemental Complaint at

trial by asserting a claim for misappropriation of trade

secrets, a claim at law that ordinarily is decided by a jury.

(ECF No. 329, Pls.’ Opp.)

LEGAL STANDARD

The right to a jury trial stems from the Seventh

Amendment to the Constitution, which states:

In Suits at common law, where the value in controversy

shall exceed twenty dollars, the right of trial by

jury shall be preserved, and no fact tried by jury,

shall be otherwise reexamined in any Court of the

United States, than according to the rules of the

common law.

U.S. Const. amend. VII. Federal Rule of Civil Procedure 38(a)

guarantees that “[t]he right of trial by jury as declared by the

Seventh Amendment to the Constitution or as given by a statute

of the United States shall be preserved to the parties

inviolate.” Fed. R. Civ. P. 38(a). “In doubtful cases, a court

should favor the party seeking a jury trial.” Prudential Oil

Corp. v. Phillips Petroleum Co., 392 F. Supp. 1018, 1022

(S.D.N.Y. 1975). On the other hand, inappropriately denying a

motion to strike a jury demand constitutes reversible error.

Sullivan v. LTV Aerospace & Def. Co., 82 F.3d 1251, 1258–59 (2d

Cir. 1996), abrogated on other grounds, McCauley v. First Unum

Life Ins. Co., 551 F.3d 126 (2d Cir. 2008) (reversing district

court’s denial of defendants’ motion to strike the jury demand).

Unjust enrichment does not arise under any federal

statute, so the dispositive question is whether the Seventh

Amendment preserves a right to trial by jury on a claim of

unjust enrichment. This question turns on a two-pronged

inquiry established by the Supreme Court to determine whether a

given action is legal or equitable in nature. The court must

first consider the nature of the issues raised in the action.

See Chauffeurs, Teamsters, and Helpers, Local No. 391 v. Terry,

494 U.S. 558, 565 (1990); Tull v. United States, 481 U.S. 412,

417–18 (1987). Here, the court compares the asserted claim with

the “18th-century actions brought in the courts of England prior

to the merger of the courts of law and equity.” Terry, 494 U.S.

at 565 (quoting Tull, 481 U.S. at 417)). At the second step,

the court considers if the remedy sought by the plaintiff is

legal or equitable in nature. See Terry, 494 U.S. at 565. In

sum, a plaintiff is entitled to a jury if his claims “involve

rights and remedies of the sort traditionally enforced in an

action at law, rather than in an action in equity.” S.E.C. v.

Commonwealth Chem. Secs., Inc., 574 F.2d 90, 95 (2d Cir. 1978).

The second question, concerning the available remedy, is more

important to the analysis than the first question. See Terry,

494 U.S. at 565. In addition, “[p]laintiffs’ characterization

of the remedy sought is not necessarily controlling . . . .”

Brown v. Sandimo Materials, 250 F.3d 120, 126 (2d Cir. 2001)

(citing Dairy Queen, Inc. v. Wood, 369 U.S. 469, 477–78 (1962)

(“[W]e think it plain that [plaintiffs’] claim for a money

judgment is a claim wholly legal in its nature however the

complaint is construed . . . . [T]he constitutional right to a

trial by jury cannot be made to depend upon the choice of words

used in the pleadings.”)).

DISCUSSION

I. Plaintiffs Are Not Entitled to a Jury Trial

Plaintiffs’ unjust enrichment claim is not entitled to

be tried before a jury under the Seventh Amendment. As a

preliminary matter, plaintiffs’ underlying theory of the case

and request relief are worth reviewing. The court previously

distilled plaintiffs’ claim as follows:

Astilean and Speedfit disclosed a wooden prototype of

a curved, non-motorized treadmill [] to Woodway’s CEO

Doug Bayerlein in 2008; Bayerlein and his team at

Woodway then relied on Astilean’s input and know-how

to develop the Speedboard 2; the Speedboard 2

ultimately became the Curve, part of the Woodway

Legacy Treadmill product line; the Curve and other

Woodway Legacy Treadmills, which were developed, at

least in part, using Astilean’s contribution of time,

technical knowledge, and effort, were sold in the

market and resulted in profits for Woodway; Astilean

and Speedfit, however, did not receive any portion of

these profits.

Summary Judgment Order, 2020 WL 108646, at *23. (See also ECF

No. 268-1, Plaintiffs’ Memorandum of Law in Support of

Plaintiffs’ Motion for Summary Judgment (“Pls.’ MSJ”) 15

(“[A]bsent the theft by Defendant of the Speedboard 2/Curve

(based on the wooden prototype), Woodway would never have sold a

single non-motorized treadmill with curved running surface and

would never have generated the revenue it received from its sale

of the Speedboard 2/Curve.”).) Plaintiffs have made clear that

they are seeking restitution and asking the court to “disgorge

the gross profits [Woodway] received from the sales of the

Speedboard 2/Curve . . . .” (Pls.’ MSJ 13; id. 12); see also

Golden Pac. Bancorp v. F.D.I.C., No. 95 CIV. 9281 (NRB), 2002 WL

31875395, at *15 (S.D.N.Y. Dec. 26, 2002), aff'd, 375 F.3d 196

(2d Cir. 2004) (“In a claim for restitution, the plaintiff seeks

the return or restoration of whatever the defendant gained due

to the wrongful action.”) (quoting Dobbs, Law of Remedies, §

4.1(1), at 551 (2d ed. 1993)). In other words, the $20,000,000

judgment plaintiffs seek represents disgorgement of Woodway’s

gain, not compensation for plaintiffs’ pecuniary injury. (See

Supp. Compl. ¶ 73.)

Applying the analysis mandated by the Supreme Court,

the court first finds that plaintiffs’ action for unjust

enrichment is equitable in nature. Under New York law, which

applies in this case, an action to recover under a theory of

unjust enrichment is “based on the equitable principles that a

person shall not be allowed to enrich himself unjustly at the

expense of another.” Banco Popular N. Am. v. Lieberman, 75

A.D.3d 460, 463 (N.Y. App. Div. 1st Dep’t 2010) (citation

omitted)); IDT Corp. v. Morgan Stanley Dean Witter & Co., 907

N.E.2d 268, 274 (N.Y. 2009) (“[Unjust enrichment] is an

obligation imposed by equity to prevent injustice . . . .”).

“Restitution is the traditional remedy employed for unjust

enrichment claims.” Golden Pac. Bancorp, 2002 WL 31875395, at

*15 (citing Sandimo Materials, 250 F.3d at 126). Plaintiffs,

surely cognizant of these well-established principles, have in

the past readily acknowledged that unjust enrichment is “an

equitable remedy.” (Pls.’ MSJ 12.) The court finds, as the

Second Circuit has held, that unjust enrichment is an equitable

cause of action and does not confer entitlement to a jury trial.

Commonwealth Chem. Secs., 574 F.2d at 95–96; Emmpressa Cubana

Del Tabaco v. Culbro Corp., 123 F. Supp. 2d 203, 206 (S.D.N.Y.

2000).

Nonetheless, the Supreme Court mandates consideration

of whether the remedy plaintiffs seek is equitable, regardless

of the cause of action. Plaintiffs’ central contention is that

their request for money damages sounds in law and thus entitles

them to a trial by jury. (See generally Pls.’ Mot.) “Claims

for money damages, though ordinarily sounding in law, are

equitable if they are restitutionary, ‘as in actions for

disgorgement of . . . money wrongfully held.’” Shamrock Power

Sales, LLC v. Scherer, No. 12CV8959KMKJCM, 2016 WL 6102370, at

*6 (S.D.N.Y. Oct. 18, 2016) (citing Terry, 494 U.S. at 570-71

(alteration and internal quotation marks omitted)); see Resner

v. Arc Mills, Inc., No. 95 CIV. 2924 (JSM), 1996 WL 554571, at

*1 (S.D.N.Y. Sept. 30, 1996) (“[Plaintiffs] incorrectly presume

that any award of monetary relief constitutes legal relief.”)

(citing Curtis v. Loether, 415 U.S. 189, 196 (1987)).

Plaintiffs unambiguously seek disgorgement of Woodway’s profits

for sales of the Curve treadmill, allegedly earned by the

wrongful misappropriation of Astilean’s concept. Disgorgement

has repeatedly been characterized as an equitable remedy by

courts in the Second Circuit. See Webb v. RLR Assocs., Ltd.,

No. 03 CIV. 4275 (HB), 2004 WL 555699, at *2 (S.D.N.Y. Mar. 19,

2004) (“Since [plaintiff] . . . seeks the disgorgement of

profits, the monetary damage claimed is equitable in nature, and

therefore does not entitle [plaintiff] to a jury trial.”); Swan

Brewery Co. v. United States Tr. Co. of N.Y., 143 F.R.D. 36, 41

(S.D.N.Y. 1992) (holding that relief was restitutionary because

the plaintiff “[sought] the return of the retained portion of

the [o]verpayment”); Standard Metals Corp. v. Tomlin, 1982 WL

1300, at *4 (S.D.N.Y. Apr. 14, 1982) (“Disgorgement of the

profits in an action brought to enjoin violations of the

securities laws” is not a “remedy which entitles [plaintiff] to

a jury trial.”). At bottom, plaintiffs request for “the return

or restoration of whatever the defendant gained due to [its]

wrongful action,” is the essence of restitution. Dobbs, Law of

Remedies, § 4.1(1), at 551; see also RESTITUTION, Black’s Law

Dictionary (11th ed. 2019) (“Return or restoration of some

specific thing to its rightful owner or status.”).1 Accordingly,

1 Plaintiffs have not articulated any theory of compensatory damages in

connection with their unjust enrichment claim, such that their action would

attain legal, rather than equitable, status. Cf. Design Strategies, Inc. v.

Davis, 367 F. Supp. 2d 630, 642–43 (S.D.N.Y. 2005), aff’d sub nom. Design

Strategy, Inc. v. Davis, 469 F.3d 284 (2d Cir. 2006) (“[A] jury trial was

warranted in this case to the extent that Design's remaining claims sought

compensation in the form of damages under the legal remedy of lost

profits.”). In any event, plaintiffs are now foreclosed from advancing a

legal claim of compensatory or pecuniary damages. On January 9, 2020, the

court granted defendant’s motion in limine to preclude evidence of Speedfit’s

lost profits and sales margins, which would presumably buttress any theory of

compensatory damages. See Speedfit LLC v. Woodway USA, Inc., No.

13CV1276KAMAKT, 2020 WL 130423, at *3-6 (E.D.N.Y. Jan. 9, 2020) (“Motion in

Limine Order”) (precluding evidence based on failure to timely produce

records or identify expert supporting a theory of unjust enrichment damages

based on Speedfit’s lost profits and margins).

plaintiffs seek an equitable remedy, and therefore, are not

entitled to a jury trial.

II. Plaintiffs’ Remaining Arguments Are Unavailing

Plaintiffs’ remaining arguments are essentially futile

efforts to retroactively change their pleading or recant on-the-

record statements that undermine their attempt to salvage a jury

trial. These contentions are ultimately unavailing.

In the main, plaintiffs assert that “[a]lthough

labeled as ‘unjust enrichment’ the remining [sic] claim herein

is identical to a claim for money had and received and quantum

meruit.” (Pls.’ Opp. 4.) As an initial matter, a claim for

quantum meruit is not identical to unjust enrichment. Simmons

v. Omohundro, No. 05 CIV. 4482 TPG, 2011 WL 1157454, at *1

(S.D.N.Y. Mar. 28, 2011) (“[U]njust enrichment is, by

definition, different from quantum meruit. As the court

explained to the jury, the focus of an unjust enrichment claim

is on the benefits received by a defendant, whereas the focus of

a quantum meruit cause of action is on the services performed by

the plaintiff.”). Less than a year ago, plaintiffs seemed aware

that their unjust enrichment claim was distinct from quantum

meruit when they expressly stated that they are not advancing a

quantum meruit claim. (ECF No. 280, Memorandum of Law in

Opposition to Defendant's Motion for Summary Judgment, 8

(“Plaintiffs do not have a claim for quantum meruit in this

action.”).) Now, plaintiffs wish to reverse course and

retroactively revise their pleading to suit their momentary

needs.

Leaving aside plaintiffs’ blatant about-face,

plaintiffs cannot establish a quantum meruit claim at this

juncture. Although unjust enrichment is an element of quantum

meruit, to prevail on quantum meruit claim, plaintiffs must also

establish “(1) that goods were provided or services performed in

good faith; (2) that the person to whom the services or goods

were rendered accepted them; (3) that the provider expected to

be compensated for the goods or services; and (4) the reasonable

value of the goods or services provided.” Fercus, S.R.L. v.

Palazzo, No. 98 CIV. 7728 (NRB), 2000 WL 1118925, at *5

(S.D.N.Y. Aug. 8, 2000). As defendant correctly notes,

plaintiffs have produced no fact or expert discovery regarding

the reasonable value of goods or services provided by plaintiffs

to Woodway, plaintiffs’ expert did not offer an opinion

regarding the value of goods or services plaintiffs provided,

and plaintiffs did not disclose any witnesses competent to

testify on the matter. (See Def.’s Mot. 7.) And, assuming

arguendo that plaintiffs could advance a viable claim for

quantum meruit, their theory of recovery would still lie in

restitution, an equitable remedy that does not entitle

plaintiffs to a jury trial.

Likewise, plaintiffs’ assertion that their unjust

enrichment claim is actually a “money had and received” action

in disguise, is both plainly transparent, and borderline

frivolous. Under New York law, a claim for money had and

received requires that “(1) defendant received money belonging

to the plaintiff; (2) defendant benefitted from the receipt of

money; and (3) under principles of equity and good conscience,

defendant should not be permitted to keep the money.” Aaron

Ferer & Sons Ltd. v. Chase Manhattan Bank, Nat. Ass’n, 731 F.2d

112, 125 (2d Cir. 1984) (citing Miller v. Schloss, 218 N.Y. 400,

407, 113 N.E. 337 (N.Y. 1916)); see also A.I.A. Holdings, S.A.

v. Lehman Bros., Inc., 97 Civ. 4978, 1999 WL 47223, at *5

(S.D.N.Y. Feb. 3, 1999). A cause of action for money had and

received is admittedly similar to a cause of action for unjust

enrichment: “the essence . . . is that one party has received

money or a benefit at the expense of another.” Gargano v.

Morey, 165 A.D.3d 889, 891 (N.Y. App. Div. 2d Dep’t 2018).

Unlike unjust enrichment, however, money had and received is

typically considered a legal claim, and therefore, requires a

trial by jury. Accord Granfinanciera, S.A. v. Nordberg, 492

U.S. 33, 43 (1989) (recognizing that actions for “money had and

received” are traditionally legal actions requiring trial by

jury); Onanuga v. Pfizer, Inc., 369 F. Supp. 2d 491, 501

(S.D.N.Y. 2005).

Plaintiffs’ eleventh-hour money had and received claim

lacks a crucial element, however: money. Plaintiffs have not

once alleged or stated that defendant obtained money or property

in which plaintiffs held a “possessory interest.” See Fernbach,

LLC v. Capital & Guarantee Inc., No. 08CIV1265(SHS), 2009 WL

2474691, at *5 (S.D.N.Y. Aug. 12, 2009) (internal citations

omitted). “Traditionally, the remedy for money had and received

is available ‘if one [] has obtained money from another, through

the medium of oppression, imposition, extortion, or deceit, or

by the commission of a trespass.’” Panix Promotions, Ltd. v.

Lewis, No. 01 Civ. 2709, 2002 WL 122302, at *2 (S.D.N.Y. Jan.

22, 2002) (quoting Miller, 218 N.Y. at 408) (emphasis added);

Parsa v. State, 474 N.E.2d 235, 238 (N.Y. 1984) (citing examples

of actions for money had and received, including “where

plaintiff has paid money by mistake, money has been collected

for an illegal tax or assessment, or property is erroneously

taken or withheld by a public official.”) (emphasis added).

Rather, plaintiffs claim that Woodway was conferred the benefit

of Astilean’s technical know-how, which Woodway used to

manufacture treadmills under its own name and for its own

profit, to Astilean and Speedfit’s exclusion. In short,

plaintiffs fail in attempting to conflate unjust enrichment, an

equitable claim, with money had and received, a legal claim.

Finally, plaintiffs insist the court may not try this

case without a jury given the prospect that plaintiffs might

move for leave to amend their pleading to add a claim for trade

secret misappropriation, a claim at law which would presumably

entitle them to a jury trial. (Pls.’ Opp. 7-8.) Plaintiffs’

opposition does not cite any authority suggesting a court must

refrain from striking a jury demand based on the mere

possibility of a pleading amendment to add a legal claim.

Indeed, an exception allowing plaintiffs to salvage their jury

demand by raising the prospect of a pleading amendment at trial

would likely swallow the rule. The court will not empanel a

jury on these grounds.

Moreover, plaintiffs’ probability of success in adding

a trade secret claim is dubious. The court previously decided

not to foreclose plaintiffs’ opportunity to move for an

amendment at trial, but also clarified that it was highly

unlikely to permit additional discovery or witnesses, five years

after the close of discovery, to prove a trade secret

misappropriation claim. Motion in Limine Order, 2020 WL 130423,

at *8-10. Without the benefit of additional discovery, expert

opinions, or witnesses, it is questionable whether plaintiffs

can successfully overcome their burden of showing that such a

pleading amendment is not futile. Cf. Johnson v. City of New

York, No. 16-CV-6426(KAM)(VMS), 2018 WL 5282874, at *4 (E.D.N.Y.

Oct. 24, 2018) (“A party seeking leave to amend under Rule 15

must establish that amendment is not futile . . . .”) (citations

and internal quotation marks omitted). For example, to prevail

on a claim for trade secret misappropriation under New York law,

plaintiffs must establish that the information Astilean conveyed

to Woodway was a trade secret, and that plaintiffs made efforts

to guard the secrecy of Astilean’s idea from the public. See

Faiveley Transport Malmo AB v. Wabtec Corp., 559 F.3d 110, 117

(2d Cir. 2009). If the record to date lacks evidence probative

of these elements, plaintiffs are now essentially precluded from

adducing the requisite supplemental evidence to establish a

claim for misappropriation of trade secrets. See Motion in

Limine Order, 2020 WL 130423, at *9 (“[P]laintiffs almost

certainly will not be able to demonstrate ‘good cause’ to reopen

discovery pursuant to Rule 16(b) of the Federal Rules of Civil

Procedure.”). Plaintiffs also have not served an expert report

detailing what damages they would seek under a trade secret

claim, or articulated any theory of damages—other than

disgorgement—as a remedy for misappropriation. Thus, even if

the court were to permit an amendment of the Supplemental

Complaint at trial, plaintiffs would still not be entitled to a

jury trial. See Tex. Advanced Optoelectronic Sols., Inc. v.

Renesas Elec. Am., Inc., 895 F.3d 1304, 1318–26 (Fed. Cir. 2018)

(plaintiff had no right to jury decision on its request for

disgorgement of defendant’s profits as remedy for trade secret

misappropriation). Although the court will not deprive

plaintiffs their right to move to amend the pleading at trial,

the court will not empanel a jury based on a proposed pleading

amendment of questionable merit.

III. The Court Declines to Empanel an Advisory Jury

The court’s power to empanel an advisory jury,

pursuant to Rule 39(c) of Federal Rules, “is entirely

discretionary.” NAACP v. Acusport Corp., 226 F. Supp. 2d 391,

398 (E.D.N.Y. 2002) (citing Glanzman v. Schaffer, 252 F.2d 333,

334 (2d Cir. 1958)); 9 Wright & Miller, Fed. Prac. & Proc. Civ.

§ 2335 (3d ed.) (“[T]he case law is abundantly clear: it is

completely discretionary with the trial judge whether or not to

use an advisory jury under Rule 39(c), and the district court's

exercise of this discretion is not reviewable.”) (footnotes

omitted). “Courts may empanel an advisory jury in order to

maximize efficiency and convenience.” Starr Int’l Co. v. Am.

Int’l Grp., Inc., 623 F. Supp. 2d 497, 502 (S.D.N.Y. 2009).

The court opts not to empanel an advisory jury for

three reasons. First, plaintiffs have not asked or advocated

for one. Second, the complicated facts of the case, and its

intricate procedural history, would be very difficult for a jury

to absorb, and the court does not see how an advisory jury would

assist the court in its own fact-finding obligations. Third,

the court cannot ignore present circumstances. The potential

health risks caused by the ongoing COVID-19 pandemic strongly

militate against the empanelling of a jury for mere advisory

purposes, especially where, as here, plaintiffs’ Constitutional

rights are not implicated.

CONCLUSION

For the reasons set forth above, defendant’s motion to

strike plaintiffs’ jury demand is GRANTED. In addition, the

court declines to empanel an advisory jury.

SO ORDERED.

Dated: Brooklyn, New York

June 8, 2020

/s/

KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York