Gilfus v. McNally Capital, LLC.

               UNITED STATES DISTRICT COURT                              
                 MIDDLE DISTRICT OF FLORIDA                              
                       TAMPA DIVISION                                    

ARTHUR GILFUS,                                                            

    Plaintiff,                                                           

v.                                     Case No: 8:18-cv-2941-CEH-CPT      

MCNALLY CAPITAL, LLC.,                                                    

    Defendant.                                                           
___________________________________/                                      

                           ORDER                                         
    This matter comes before the Court on the Defendant’s Motion to Strike Jury 
Demand (Doc. 169).  In the motion, Defendant requests the Court enter an order 
striking Plaintiff’s demand for a jury trial because the only claim remaining to be tried 
is the equitable claim of unjust enrichment. Plaintiff responded in opposition (Doc. 
188) and Defendant replied (Doc. 191).  The issue of Plaintiff’s jury demand was 
discussed at the pretrial conference held on August 15, 2023, following which the 
Court directed Plaintiff to file a supplement to the pretrial statement clarifying the 
breakdown of Plaintiff’s damages. Doc. 181. On August 22, 2022, Plaintiff filed a 
supplement regarding damages (Doc. 182), to which Defendant responded (Doc. 185). 
After careful consideration of the motion, the parties’ submissions, and being fully 
advised  in  the  premises, the  Court  will  deny  Defendant’s  Motion  to  Strike  Jury 
Demand.                                                                   
                         DISCUSSION                                      
    A determination as to whether Plaintiff has a right to a jury trial begins with the 

Seventh Amendment, which preserves the “right of trial by jury” in “[s]uits at common 
law.” U.S. Const. amend. VII. The Supreme Court has articulated a two-part test that 
courts use to determine whether the Seventh Amendment’s right to a jury trial applies 
to a plaintiff’s particular claim.  Granfinanciera, S.A. v. Nordberg, 

492 U.S. 33

 (1989). 
“Under that test, a court must first ‘compare the statutory action to 18th-century 

actions brought in the courts of England prior to the merger of the courts of law and 
equity.’ It must then ‘examine the remedy sought and determine whether it is legal or 
equitable in nature.’” Hughes v. Priderock Cap. Partners, LLC, 

812 F. App’x 828

, 831 
(11th Cir. 2020) (quoting Granfinanciera, 

492 U.S. at 42

). The second factor is “more 
important than the first.” 

Id.

                                            

    Because the only claim remaining is the equitable claim of unjust enrichment,1  
Defendant submits that Plaintiff is not entitled to a jury trial. Plaintiff urges that his 
claim sounds in assumpsit and that he is seeking money damages, a legal remedy, and 
therefore  his  demand  for  a  jury  trial  should  be  honored.  Alternatively,  Plaintiff 
requests an advisory jury.                                                

    The parties apply the Granfinanciera test to Plaintiff’s unjust enrichment claim, 
but they disagree as to how the claim should be classified. The disagreement stems, at 

1 On December 12, 2022, the Court entered summary judgment in Defendant’s favor on 
Plaintiff’s breach of contract, breach of fiduciary duty, and promissory estoppel claims. Doc. 
156. Thus, the only claim remaining after dispositive motions is Plaintiff’s unjust enrichment 
claim. See 

id.

                                                            
least  in  part,  due to  Plaintiff’s  own  inability  to  clearly  articulate  his  measure  of 
damages on this claim. In that regard, the pretrial statement included the following 
breakdown of Plaintiff’s damages:                                         

         Plaintiff’s  remaining  unjust  enrichment  claims  are  often  
         found to be equitable in nature, but are often submitted to a   
         jury under Florida cases being held by some Florida courts      
         to sound in law as claims in assumpsit. Plaintiff asserts that  
         the remedy of discouragement (sic) damages/remedy in the        
         amount of money/benefit received by Defendant through           
         the  purchase  of  Nortrax  with  Dobbs,  believed  to  be  a   
         finder’s fee of 4% or approximately $4 million or some other    
         finder’s  fee,  or  the  discouragement  (sic)  of  some  other 
         benefit conferred as developed at trial, is an appropriate      
         remedy, as found by the jury and/or as the Court deems just     
         and right in her equitable powers.                              

Doc. 161 at 23. Thus, Plaintiff requested damages for (1) disgorgement or (2) some 
other benefit as developed at trial or (3) as the Court deems appropriate based on the 
Court’s equitable powers. Given the lack of clarity as to whether legal or equitable 
relief was being sought, which necessarily weighs in on the Court’s analysis as to 
whether Plaintiff is entitled to a jury trial, the Court directed Plaintiff to supplement 
his breakdown of damages. Doc. 181.                                       
    In his supplement filed in response to the Court’s order, Plaintiff describes his 
damages as restitution either measured by disgorgement or by the market value of his 
services. Doc. 182. He goes on to further explain that the disgorgement is measured 
by the Defendant’s ill-gotten gains. Id. at 2. Regarding the market value of his services, 
he estimates that to be approximately $20,000 based on no less than 100 hours of work 
at $200 per hour. Id. at 3. Plaintiff acknowledges that he may only recover under one 
theory.                                                                   
    Defendant submits that Plaintiff should be required to select his chosen remedy 

now and further argues that he may not aggregate his claims to satisfy the jurisdictional 
amount in controversy. Doc. 191. Election of remedies is generally made after verdict 
and before judgment. Wynfield v. Edward LeRoux Group, 

896 F.2d 483

 (11th Cir. 1990); 
see also, Alvarez v. Puleo, 

561 So. 2d 437

 (Fla. 2d DCA 1990) (holding that a party may 

plead  and  litigate  inconsistent  remedies).  In  support  of  the  contrary  position, 
Defendant relies on Deemer v. Hallett Pontiac, Inc., 

288 So. 2d 526

 (Fla. 3d DCA 974), 
in which the appellate court affirmed a lower court’s decision to require the plaintiff 
to make an election between two inconsistent remedies prior to trial. 

Id.

 at 527–28. 
Deemer appears to be an outlier, however, as Florida’s First, Second, Fourth, and Fifth 

District Courts of Appeal, as well as the Florida Supreme Court, have held that “an 
election between inconsistent remedies need only occur before judgment is entered.” 
E. Portland Cement Corp. v. F.L. Smidth Inc., No. 8:08-cv-637-SCB-TBM, 

2009 WL 4730545

, at *1 (M.D. Fla. Dec. 7, 2009) (collecting cases). Accordingly, Plaintiff is not 
required here to select his remedy pre-trial.                             

    Defendant contends that even if an unjust enrichment claim is comparable to 
an action of assumpsit (i.e., a legal claim) as argued by Plaintiff, if the remedy sought 
is equitable, there is no right to a jury. Here, Defendant submits that Plaintiff’s remedy 
of disgorgement is an equitable remedy. In response, Plaintiff submits he is seeking 
money  damages—a  legal  remedy—and  that  his  damages  are  more  appropriately 
characterized as restitution. Given Plaintiff’s clarification  that the damages being 
sought are legal in nature,2 Plaintiff is entitled to a jury trial on his unjust enrichment 
claim.                                                                    

    Regarding its argument that subject-matter jurisdiction is lacking, Defendant 
submits that Plaintiff’s remedy based on $20,000 in damages divests the Court of 
jurisdiction. However, as noted above, Plaintiff is not obligated to select his remedy 
pre-suit, and thus his claimed damages exceed the jurisdictional threshold. Further, 
Defendant’s argument that St. Paul Mercury Indemnity Co. v. Red Cab Co., 

303 U.S. 283, 289-90

 (1938), and its progeny, are inapposite is unpersuasive. Although Red Cab was 
a removal case, the Court’s pronouncement that “[e]vents occurring subsequent to the 
institution of suit which reduce the amount recoverable below the statutory limit do 
not oust jurisdiction,” 

id.

 at 289–90, is equally applicable here. As the Red Cab Court 

noted “a dismissal would not have been justified [for a subsequent decrease in the 
amount in controversy] had the suit been brought [originally] in the federal court.” 

Id. at 290

. This view is further supported by the fact that “in a suit properly begun in the 
federal court[,] the change of citizenship of a party does not oust the jurisdiction.” 

Id. at 294

. It is undisputed the Court had diversity jurisdiction over this action when the 

case  was  first  filed.  Subsequent  rulings  which  eliminated  claims  and  potentially 
impacted the amount-in-controversy do not thereafter eliminate the Court’s subject-

2 Defendant argues that Plaintiff’s explanation of his damages is constantly evolving, with the 
most  recent  characterization  being  unsubstantiated.  By  this  order  denying  Defendant’s 
motion to strike jury demand, the Court is not making a ruling as to whether Plaintiff’s 
evidence supports his theory of damages.                                  
matter jurisdiction.’ See PTA-FLA, Inc.  v. ZTE USA, Inc.,  

844 F.3d 1299, 1306

 (11th 
Cir.  2016)  (district  court  maintained  diversity  jurisdiction  “regardless  of  any 
subsequent [decrease] to the amount in controversy”). 
      Accordingly, it is 
      ORDERED: 
      1.     Defendant's Motion to Strike Jury Demand (Doc.  169) is DENIED. 
      2.     The Court defers ruling on the pending motions in limine (Docs. 163-168, 
170-172).  A hearing on the motions in limine will be scheduled closer in time to the 
trial date. 
      3.     Within  14 days, the parties shall file a joint notice regarding their trial 
availability in 2024. 
      DONE AND ORDERED in Tampa, Florida on November 17, 2023. 

                                  halen 2   AJ ards Kn TO pl el □□ 
                                 Charlene Edwards Honeywell 
                                 United States District Judge 

Copies to: 
Counsel of Record 
Unrepresented Parties, if any 

>  This  differs  from  a  situation in which  the  Court  declines  to  exercise  its  supplemental 
jurisdiction over remaining state law claims after dismissal of federal claims. See 

28 U.S.C. § 1367

(c)(3) (“[D]istrict courts may decline to exercise supplemental jurisdiction over a claim 
under subsection (a) if... the district court has dismissed all claims over which it has original 
jurisdiction.”).