Eleventh Circuit Notes Split Re Burden of Proof re Whether Contractual Jury Waiver Was Knowing & Voluntary

Per the Eleventh Circuit in Bakrac, Inc. v. Villager Franchise Systems, Inc., Slip Copy, 2006 WL 41282 (11th Cir. Jan. 06, 2006):

The circuits are split as to which party has the burden of proving whether a contractual jury trial waiver, such as the one here, was knowing and voluntary. See Pierce v. Atchison Topeka & Santa Fe Ry. Co., 110 F.3d 431, 435 n. 4 (7th Cir.1997) (collecting cases). Although this Circuit has not ruled on the matter, the district court put the burden on VFS. The district court's approach is consistent with the approach used in Luis Acosta, Inc. v. Citibank, N.A., 920 F.Supp. 15, 18 (D.P.R.1996) (party seeking to enforce the waiver bears the burden). We need not determine whether this is the correct approach. VFS prevails regardless of who has the burden.