KEEVY v. AMOS EXTERIORS, INC. et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
HANNAH KEEVY, 	)
)
Plaintiff, 	)
)
v. 	) 	No. 1:24-cv-02210-RLY-MJD
)
AMOS EXTERIORS, INC., et al., 	)
)
Defendants. 	)
ORDER
This matter is before the Court on Defendants' Renewed Motion to Strike Plaintiff's
Demand for a Jury Trial. [Dkt. 150.]1 For the reasons set forth below, the motion is
GRANTED.
I. Background
Plaintiff was previously employed by Defendant Amos Exteriors, Inc. ("Amos") as a
sales representative. In her Second Amended Complaint, Plaintiff asserts claims against Amos
under Title VII, 42 U.S.C. § 2000 et seq., for gender discrimination, retaliation, and subjecting
her to sexual harassment and a hostile work environment based on her gender and sexual
orientation. She also asserts claims under the Family and Medical Leave Act, 29 U.S.C. § 2601
1 The instant motion was filed and briefed while Plaintiff's Amended Complaint was the
operative complaint. However, in granting Plaintiff leave to file her Second Amended
Complaint, the Court stated that it would consider the instant motion "as directed toward the
Second Amended Complaint" to avoid the need for the parties to re-brief the motion. [Dkt. 170.]
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et seq., the Indiana Wage Payment Statute, Ind. Code § 22-2-5-2, and a claim for breach of her
employment agreement against both Amos and Defendant Robert B. Amos, who is the President
of Amos.
The employment agreement governing Plaintiff's employment with Amos contains the
following provision:
[Dkt. 11-1 at 6.]
II. Discussion
Based on the jury trial waiver provision set forth above, Defendants move to strike
Plaintiff's jury demand in this case. 2 In her response to the instant motion, [Dkt. 163], Plaintiff
argues that the jury trial waiver provision is unenforceable because it is unconscionable and that
Defendants may not enforce the provision because Defendants committed the first material
breach of the contract. Each of Plaintiff's arguments is addressed, in turn, below.
A. Unconscionability
There is no dispute that Indiana law applies to the issue of whether the jury trial waiver
provision in the parties' contract is enforceable. See [Dkt. 163 at 3] (Plaintiff applying Indiana
law); [Dkt. 166 at 2] (Defendants applying Indiana law); IFC Credit Corp. v. United Bus. &
2 The Court notes that Plaintiff sets forth the "motion to strike legal standard" that "Courts in the
Seventh Circuit generally disfavor Fed. R. Civ. P. 12(f) motions to strike because they serve to
cause delay and should only be granted in the rare case that 'striking material from a pleading
would clarify and simplify matters.'" [Dkt. 163 at 3] (quoting Shiel Sexton Co., Inc. v. Talisman
Sur. & Fid. Co., Inc., 2024 WL 2273437, at *1 (S.D. Ind. Jan. 18, 2024)). However, that general
standard is inapplicable here; a motion to strike is the proper means to raise the issue of whether
a jury demand is proper, an issue that obviously must be resolved before trial.
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Indus. Fed. Credit Union, 512 F.3d 989, 991 (7th Cir. 2008) (holding that validity of jury waiver
clause in a contract "depends on the law of the jurisdiction whose rules will govern the rest of the
dispute"). "Indiana has long recognized the freedom of parties to enter into contracts." Doe v.
Carmel Operator, LLC, 160 N.E.3d 518, 521 (Ind. 2021) (citing Fresh Cut, Inc. v. Fazli, 650
N.E.2d 1126, 1129 (Ind. 1995)); see also U.S. Automatic Sprinkler Corp. v. Erie Ins. Exch., 204
N.E.3d 215, 218 (Ind. 2023) ("Indiana courts have a long history of safeguarding the freedom to
contract."). Under Indiana law, contracts are "presume[d] . . . [to] represent the freely bargained
agreement of parties" and contracts will be enforced "so long as they aren't illegal or against
public policy." Doe, 160 N.E.3d at 521 (citations omitted).
Plaintiff argues that the jury waiver clause is unenforceable because it is unconscionable.
"As a general rule, a contract may be declared unenforceable due to unconscionability when
there is a great disparity in bargaining power which leads the party with the lesser power to sign
a contract unwillingly and unaware of its terms." McAdams v. Foxcliff Ests. Cmty. Ass'n, Inc., 92
N.E.3d 1144, 1150 (Ind. Ct. App. 2018) (citations omitted) (emphasis in original). "In such a
case, the contract must be one that no sensible person not under delusion or duress or in distress
would make, and one that no honest and fair person would accept." In Indiana,
unconscionability jurisprudence is sub-divided into two branches: substantive and
procedural. Substantive unconscionability refers to oppressively one-sided and
harsh terms of a contract, while procedural unconscionability involves the manner
and process by which the terms become part of the contract.
Missler v. State Farm Ins. Co., 41 N.E.3d 297, 303 (Ind. Ct. App. 2015) (citations omitted). The
Seventh Circuit has observed that.
[a]lthough Indiana recognizes unconscionability, courts do not regularly accept it
as an argument; we have previously described Indiana as "unfriendly" to
unconscionability generally.
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Jackson v. Bank of Am. Corp., 711 F.3d 788, 792 (7th Cir. 2013) (citing Amoco Oil Co. v.
Ashcraft, 791 F.2d 519, 522-23 (7th Cir. 1986) (collecting cases)).
With regard to procedural unconscionability, Plaintiff argues that there was great
disparity in bargaining power between the parties here because
[e]mployers have superior bargaining power over employees. 	First, employers
craft the employment agreements. They often have dedicated legal teams or HR
departments that draft contracts, enforce policies, and ensure compliance with
labor laws. 	Employees, on the other hand, may not have the knowledge to
challenge unfair contract terms. 	Second, employers have superior financial
resources over employees. This means employers can afford legal representation,
prolonged negotiations, or even delaying hiring, whereas employees often need
income immediately and may feel pressured to accept unfavorable terms. Third,
most employees are more easily replaced than employers. A worker losing a job
may struggle to find another position quickly, while an employer can usually fill
a vacant role much faster. Finally, employers control job offers, salaries, benefits,
and working conditions. 	They often present "take it or leave it" agreements,
leaving employees with little room to negotiate, especially in competitive job
markets.
[Dkt. 163 at 4.] The Court rejects Plaintiff's assumption that the employer always has superior
bargaining power over a prospective employee. Depending on the particular job market and the
skills and experience of the particular employee, the opposite might be true. Some prospective
employees may be highly sought after by employers and have several job offers to choose from.
Such generalizations are unhelpful. However, the Court will assume, without deciding, for
purposes of this Order that in this case Defendants had superior bargaining power over Plaintiff
and that Plaintiff "did not consider or think through the jury waiver provision before signing."
[Id. at 5.]
Those facts, alone, are insufficient to render the jury waiver provision unconscionable.
"[A]n adhesion contract—i.e., 'a standardized contract, which, imposed and drafted by the party
of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere
to the contract or reject it'—is not per se unconscionable." Sanford v. Castleton Health Care Ctr.,
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LLC, 813 N.E.2d 411, 417 (Ind. Ct. App. 2004); see also IFC Credit Corp., 512 F.3d 989, 992-93
("Ever since Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622
(1991), enforced a forum-selection clause printed in tiny type on the back of a cruise-ship ticket,
it has been hard to find decisions holding terms invalid on the ground that something is wrong
with non-negotiable terms in form contracts. See also, e.g., Gilmer v. Interstate/Johnson Lane
Corp., 500 U.S. 20, 32, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) (unequal bargaining power does
not justify refusal to enforce an arbitration clause in a form contract)) (additional citation
omitted).
Rather, a contract is unconscionable if a great disparity in bargaining power exists
between the parties, such that the weaker party is made to sign a contract
unwillingly or without being aware of its terms. White River Conservancy Dist.
v. Commonwealth Eng'rs, Inc., 575 N.E.2d 1011, 1017 (Ind. App. 1991), reh'g
denied, trans. denied. . . . 	A contract is not unenforceable merely because one
party enjoys advantages over another. Dan Purvis Drugs, Inc. v. Aetna Life Ins.
Co., 	412 	N.E.2d 	129, 	131 	(Ind. 	Ct. 	App. 	1980), 	trans. 	denied.
Sanford, 813 N.E.2d at 417.
Under Indiana law, a person is presumed to understand and assent to the terms of the
contracts he or she signs. Sanford, 813 N.E.2d at 418 (citing Buschman v. ADS Corp., 782
N.E.2d 423, 428 (Ind. Ct. App. 2003)). In her brief, Plaintiff brief asserts that she "had no more
than thirty seconds to read and sign the Employment Agreement." [Dkt. 163 at 5.] This leaves
the impression that Defendant somehow pressured or forced Plaintiff to sign the agreement
quickly, without taking the opportunity to read it. Tellingly, however, Plaintiff's Affidavit states
only that she "did not engage with any of the documents for more than 30 seconds." [Dkt. 163-1
at 2.] Her affidavit does not state, or even suggest, that she could not have taken more time to
review the document if she had chosen to do so. See Sanford, 813 N.E.2d at 418 (distinguishing
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between failing to read a contract and being precluded from doing so). And, in fact, the
Agreement contains the following certification immediately before Plaintiff's signature:
[Dkt. 11-1 at 6.]
Plaintiff asserts in her brief that "[t]he burden rests on the party seeking to enforce the
contract to show that 'the contractual provisions were explained to the other party and came to
his knowledge, and there was, in fact, a real and voluntary meeting of the minds.'" [Dkt. 163 at
4] (quoting Geiger v. Ryan's Fam. Steak Houses, Inc., 134 F. Supp. 2d 985, 997 (S.D. Ind.
2001)). Geiger does contain the cited language. However, the next paragraph in Geiger makes it
clear that the quoted language, read out of context, is an overly broad statement of the law. The
quoted language in Geiger came from Weaver v. American Oil Co., 276 N.E.2d 144, 146 (1971).
As Geiger explains:
The holding in Weaver was further explicated by the Indiana Supreme Court in
Carr v. Hoosier Photo Supplies, Inc., 441 N.E.2d 450, 454-55 (Ind. 1982). After
reiterating Weaver's holding, it explained that the plaintiff in Weaver had only a
year-and-a-half of high school education and "'was not one who should be
expected to know the law or understand the meaning of technical terms.'" Carr,
441 N.E.2d at 454 (quoting Weaver, 276 N.E.2d at 146). In contrast, the Court in
Carr held that plaintiff's experience as an attorney practicing in the field of
business law rendered unavailing a challenge to the contract as unconscionable.
Carr, 441 N.E.2d at 455.
Geiger, 134 F. Supp.2d at 997.
In this case, Plaintiff testified in her deposition that she has a bachelor's degree and
considers herself to have above average intelligence. [Dkt 131-1 at 15, 17.] The jury waiver
provision is not difficult to understand and the provision directly above Plaintiff's signature
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makes it clear that she is relinquishing certain rights by signing the Agreement. Therefore,
unlike the situations in Weaver and Geiger, which involved less sophisticated plaintiffs and more
complicated contractual provisions, there is nothing about the circumstances of Plaintiff signing
the Agreement that required Defendants to explain the jury waiver provision to Plaintiff in order
to make the provision enforceable.
Even if Plaintiff were able to demonstrate that the circumstances surrounding her signing
of the Employment Agreement were procedurally unconscionable, rather than merely a typical
adhesion contract situation, that would not be sufficient to render the jury waiver clause
unenforceable. Rather, the provision itself must be substantively unconscionable—that is, an
agreement that "no sensible man not under delusion, duress or in distress would make, and such
as no honest and fair man would accept." McAdams, 92 N.E.3d at 1150. Plaintiff has not cited
any authority that even suggests that a jury waiver provision satisfies that standard. Given that
"Indiana recognizes a strong policy interest in favor of enforcing arbitration agreements," Land v.
IU Credit Union, 218 N.E.3d 1282, 1286 (Ind. 2023), aff'd on reh'g, 226 N.E.3d 194 (Ind. 2024)
(citing Decker v. Star Fin. Grp., Inc., 204 N.E.3d 918, 920 (Ind. 2023)), which, of course,
eliminates not only the right to a jury trial, but also the right to any trial at all, it is difficult to see
how an Indiana court would find that no one would voluntarily accept a jury waiver clause in a
contract. Cf. Redmond v. Sirius Int'l Ins. Corp., 2014 WL 197909, at *19 (E.D. Wis. Jan. 15,
2014) ("If an insurer can include in a standard insurance contract a provision whereby an insured
will give up his right to not only a trial by jury but also the right to bring his action in any court,
the court has little reason to conclude that a provision waiving the right to a jury trial is
inherently unenforceable or any extraordinary means are necessary to render it effective.").
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Plaintiff also argues that the jury waiver provision is unconscionable because it is
"ambiguous and vague and lacks clarity." [Dkt. 163 at 5.] It is not and does not. The provision's
meaning is clear and unambiguous. Plaintiff's arguments on this point do not merit further
discussion.
B. First Material Breach
Plaintiff also argues that Defendants may not enforce the jury waiver provision because
Defendants materially breached the contract by failing to pay Plaintiff as required by the
Agreement. Plaintiff's entire argument on this issue is as follows:
Under Indiana law, the essential elements of a breach of contract claim are "the
existence of a contract, a breach of the contract, and damages." Niezer v. Todd
Realty, Inc., 913 N.E.2d 211, 215 (Ind. Ct. App. 2009). 	When one party to a
contract "commits the first material breach of that contract, it cannot seek to
enforce the provisions of the contract against the other party if that other party
breaches the contract at a later date," Coates v. Heat Wagons, Inc., 942 N.E.2d
905, 917 (Ind. Ct. App. 2011); see also Ream v. Yankee Park Homeowner's Ass'n,
Inc., 915 N.E.2d 536, 547 (Ind. Ct. App. 2009) ("A party first guilty of a material
breach of contract may not maintain an action against or recover damages from
the other party to the contract.").
***
A 	contract 	existed 	because 	Ms. 	Keevy 	signed 	the 	Amos 	Exteriors, 	Inc.
Employment Agreement. 	The Employment Agreement contained a provision
stating that in exchange for employment or continued employment, "Company
shall pay Employee such compensation as is agreed upon from time to time." ECF
No. 11-1 at §1. Nonpayment constitutes a material breach. REI Transp., Inc. v.
C.H. Robinson Worldwide, Inc., 519 F.3d 693, 698 (7th Cir. 2008). Defendants
breached the agreement to "pay Employee such compensation as is agreed upon"
when between December 2022 to October 2024, it repeatedly failed to pay Ms.
Keevy the full commissions she earned. 	ECF No. 1. 	Defendants have still not
paid Ms. Keevy the full commission she earned.
[Dkt. 163 at 7.]
"Perfunctory and undeveloped arguments are waived, as are arguments unsupported by
legal authority." Schaefer v. Universal Scaffolding & Equip., LLC, 839 F.3d 599, 607 (7th Cir.
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2016) (citing United States v. Hook, 471 F.3d 766, 775 (7th Cir. 2006)). Here, Plaintiff fails to
explain how the general statement of law she cites regarding the affirmative defense of first
material breach applies to a jury waiver provision. If the law were as Plaintiff implies, then a
jury waiver clause would never be enforceable against a party who is accused of breaching the
contract. This, of course, would enable any party to avoid an otherwise valid jury waiver clause
by simply alleging a material breach by the other party. Cf. Merrill Lynch & Co. Inc. v.
Allegheny Energy, Inc., 500 F.3d 171, 188 (2d Cir. 2007) ("[A]s we expressed in the arbitration
context, we are concerned that deciding this issue in favor of appellant makes it too easy for a
litigant to avoid its contractual promise to submit a case to a judge by alleging fraud.") (citing El
Hoss Eng'g & Transp. Co. v. Am. Indep. Oil Co., 289 F.2d 346, 349 (2d Cir. 1961) (discussing
problems posed by fraud in the inducement claims including sham litigations pursued to avoid
arbitration)). Plaintiff also fails to acknowledge or address the following provision in the
Agreement, which is certainly relevant to this issue:
[Dkt. 21-1 at 6.] "[I]t is not this court's responsibility to research and construct the parties'
arguments," Draper v. Martin, 664 F.3d 1110, 1114 (7th Cir. 2011) (citation omitted), and the
Court will not do so here.
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III. Conclusion
For the reasons set forth above, Defendants' Renewed Motion to Strike Plaintiff's
Demand for a Jury Trial, [Dkt. 150], is GRANTED. Any trial in this case will be to the Court,
not a jury.
SO ORDERED.
Dated: 10 NOV 2025
Distribution:
Service will be made electronically on all
ECF-registered counsel of record via email
generated by the Court's ECF system.
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