E.D. Pennsylvania Notes Split Re Which Party Bears Burden of Proving Waiver of the Right to a Jury Trial

Per Coleman v. Ameriprise Financial Services, Inc., Slip Copy, 2007 WL 2011447 (E.D.Pa. Jul 05, 2007) (NO. CIV A 05-6408):

While the right to a jury trial is guaranteed by the Seventh Amendment, it can be contractually waived if the waiver is knowing and voluntary. Aamco v. Marino, 1990 WL 10024, at * 1 (E.D.Pa., Feb.7,1990), citing Aetna Ins. Co. v. Kennedy, 301 U.S. 389,393 (1936). "The United States Court of Appeals for the Third Circuit has not yet determined whether the movant or the opposing party bears the burden of proving the waiver of the right to a jury trial, and other circuits are split on this issue." Bishop v. GNC Franchising, LLC, 2006 WL2266251, at *1 (W.D. Pa., Jan 13, 2006) (citations omitted).

To determine whether a plaintiff's waiver of the right to a jury trial is knowing and voluntary, the following may be considered: "(1) whether there was a gross disparity in bargaining power between the parties; (2) the business or professional experience of the party opposing the waiver; (3) whether the clause containing the waiver was inconspicuous; and (4) whether the opposing party had an opportunity to negotiate contract terms." Id., citing Hydramar, Inc. v. Genernal Dynamics Corp., 1989 WL 159267 (E.D.Pa.1989). Here, these factors favor enforcement of the waiver.