Textron Aviation Inc. v. Tsumpes et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
TEXTRON AVIATION INC.,
Plaintiff,
v.
WILLIAM TSUMPES, et al.,
Defendants.
Case No. 6:25-cv-01088-HLT-ADM
MEMORANDUM AND ORDER
This case stems from a failed deal for an aircraft. Plaintiff Textron Aviation Inc. sued
Defendants William Tsumpes and Seaguard Aviation, LLC for breach of contract and declaratory
relief. Textron seeks liquidated damages based on Defendants’ failure to complete the deal.
Defendants move to dismiss. Doc. 42.1 They dispute personal jurisdiction and the existence of an
enforceable contract. The Court denies the motion. Defendants purposefully availed themselves of
this forum when they came to Kansas to execute the deal and help design the aircraft. And the
Court can’t resolve the question of whether the contract is binding at the pleading stage. Textron
has plausibly stated its claims.
Defendants also move to strike Textron’s withdrawal of a demand for a jury trial. Doc. 44.
Given the open question in this case about the enforceability of the contract (which includes a jury
waiver), the propriety of the jury demand is not clear. This matter therefore can’t be decided at the
pleading stage. Defendants will not be prejudiced by Textron’s withdrawal of the demand. The
Court therefore denies the motion.
1 	Defendants request oral argument. The Court denies that request because it would not materially assist the Court
in deciding the motions.
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I. 	BACKGROUND2
Textron is an aircraft manufacturer. Doc. 31 at ¶ 1. Tsumpes is an individual. Seaguard is
a limited liability company whose members are Tsumpes and another entity whose sole member
is also Tsumpes. Id. ¶¶ 2-3. Tsumpes is a Texas resident, and Seaguard is a Montana limited
liability company. Id.
Textron entered into an Aircraft Purchase Agreement (“APA”) with Tsumpes for the
purchase of an aircraft. Id. ¶ 8. Part 1 of the APA identified the purchaser as “William Tsumpes
an individual.” Id. Tsumpes signed the APA and noted his title was “CEO.” Id. ¶ 8. Tsumpes made
the first deposit of $250,000 on May 1, 2024. Id. ¶ 11. On May 23, 2024, Tsumpes traveled to
Textron’s factory in Kansas to make interior and exterior design choices for the aircraft. Id. ¶ 12.
During that visit, Tsumpes wet signed and dated the APA.3 Id. On May 24, 2024, Tsumpes made
a second deposit of $500,000. Id. ¶ 13. In June and July 2024, Tsumpes and Textron’s customer
account manager corresponded about the interior design of the aircraft. Id. ¶ 14.
The APA contains a forum selection clause stating that “any dispute arising under, out of
or related in any way to this Agreement, the legal relationship between Seller and Purchaser, or
the transaction that is the subject matter of this Agreement” will be governed by Kansas law and
will be adjudicated in Kansas federal court or Kansas state court. Doc. 24 at 12. It also states that
the parties consent to personal jurisdiction of those courts. Id.; see also Doc. 31 at ¶ 5. Article 6(b)
2 	The following facts are taken from the well-pleaded allegations in the amended complaint and are presumed to be
true for purposes of this order. See Doc. 31. The APA has been submitted as an exhibit, see Doc. 24, and both
parties agree it is properly considered. Doc. 43 at 2 n.1; Doc. 49 at 1 n.1; see also GFF Corp. v. Associated
Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997) (“[I]f a plaintiff does not incorporate by reference
or attach a document to its complaint, but the document is referred to in the complaint and is central to the plaintiff’s
claim, a defendant may submit an indisputably authentic copy to the court to be considered on a motion to
dismiss.”).
3 	The APA signature page has the date of Tsumpes’s signature as April 30, 2024. Doc. 24 at 15. It’s unclear if this
discrepancy arose from electronic versus wet signatures.
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states that if the purchaser fails to take delivery of the aircraft or fails to perform obligations under
the APA, it will be considered a “pre-delivery breach” and Textron will be entitled to liquidated
damages equal to all paid deposits as well as all remaining deposits due. Doc. 31 at ¶ 9; see also
Doc. 24 at 10.
The APA was first amended on July 29, 2024. Doc. 31 at ¶ 15. Amendment No. 1 made
the third deposit of $750,000 due by September 15, 2024. Id. Tsumpes signed the amendment,
again using the title of CEO, but with no reference to Seaguard. Id.
Tsumpes did not make the third deposit of $750,000 by September 15, 2024. Id. ¶ 17. On
September 25, 2024, Tsumpes acknowledged notice of the past due deposit. Id. ¶ 18. On
September 26, 2024, Textron sent Tsumpes a Default Notice with a cure deadline of close of
business the next day. Id. Tsumpes responded and proposed installment payments for the
remainder of the deposit. Id. The proposed installment dates and amounts were $350,000 due on
September 27, 2024, which Tsumpes paid on that date, and $400,000 due on November 25, 2024.
Id. The parties memorialized these changes in Amendment No. 2. Id. Tsumpes signed Amendment
No. 2 on October 31, 2024, and listed his title as “Himself.” Id. ¶ 20.
On that same day, the parties also executed Amendment No. 3. Id. ¶ 21. Amendment No. 3
revised the sales allowance, updated the interior and exterior schemes, added various features, and
added interior and exterior renderings. Id. Tsumpes signed Amendment No. 3 and listed his title
as “Himself.” Id.
The final $400,000 deposit was not paid by November 25, 2024. Id. ¶ 22. Textron sent a
past due notice to Tsumpes on December 11, 2024, who requested an extension until January 24,
2025. Id. Textron accommodated this request. Id. Up until this point, all dealings were between
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Textron and Tsumpes individually. Id. ¶ 24. None of Tsumpes’s correspondence included a
signature block for Seaguard. Id.
On February 25, 2025, Tsumpes traveled to Textron’s factory in Wichita to execute
Amendment No. 4, in which Tsumpes assigned the APA to Seaguard. Id. ¶ 25. By that assignment,
Seaguard agreed to assume all rights, liabilities, and obligations of Tsumpes under the APA.
Id. Article 3 of Assignment No. 4 stated:
If Assignee [Seaguard] does not fully and completely perform all
obligations of Assignor [Tsumpes] under the Agreement [APA],
then, in accordance with the terms and conditions of the Agreement,
Assignor and Assignee are both jointly and severally responsible for
any and all damages arising from any breach of the Agreement and
Seller [Textron] may pursue both or either party for full satisfaction.
Doc. 24 at 26. Tsumpes signed Amendment No. 4 on February 25, 2025, using the title “Himself,”
and he also signed for Seaguard as “Member.” Doc. 31 at ¶ 26. Tsumpes was physically present
in Kansas when he signed. Id.
Amendment No. 5 was also executed on February 25, 2025. Id. ¶ 27. This amendment
reflected that the remaining $400,000 deposit was due by January 24, 2025. Id. Amendment No. 5
was signed by Tsumpes on behalf of Seaguard. Id. ¶ 28. The $400,000 deposit had not been paid
on January 24, 2025. Id. ¶ 29. But Textron agreed to accept the final deposit at the time of delivery,
along with the remaining balance due. Id.
The aircraft delivery date under the APA was April 30, 2025. Id. ¶ 31. 4 Tsumpes and
Seaguard told Textron they would not take delivery of the aircraft on that date. Id. ¶ 32. Textron
has fully performed its obligations under the APA, including all five amendments and presenting
4 	Defendants argue that the “Ready for Delivery” date in the APA and the “Delivery Date” are listed as the “Fourth
Quarter of 2024.” Doc. 43 at 3; see also Doc. 24 at 4.
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the aircraft for delivery as defined in the APA. Id. ¶ 34. Based on this, Textron contends Tsumpes
and Seaguard are in pre-delivery breach under the APA. Id. ¶ 33.
Textron sues for one count of breach of contract, alleging that Tsumpes and Seaguard have
breached the APA by failing to make the necessary deposits and by failing to take delivery of the
aircraft by the delivery date. Id. ¶¶ 35-39. It seeks $1,500,000 in liquidated damages as set out in
Article 6(b) of the APA, which represents the $1,100,000 already paid to Textron, and the
$400,000 still outstanding. Id. ¶ 39.
Textron also seeks declaratory judgment that the APA and its amendments constitute a
legally binding contract between the parties, and a declaration that Tsumpes and Seaguard must
hold Textron harmless under various provisions in the APA, that Tsumpes and Seaguard are jointly
and severally liable to pay the remaining $400,000 deposit, and that Textron is entitled to retain
the $1,100,000 already paid. Id. ¶¶ 40-42.
II. 	STANDARD
Defendants move to dismiss under Rule 12(b)(2) for lack of personal jurisdiction and under
Rule 12(b)(6) for failure to state a claim. The Court discusses both standards.
A motion under Rule 12(b)(2) challenges personal jurisdiction over a defendant. A plaintiff
has the burden of showing that personal jurisdiction exists and must make a prima facie showing
to overcome a Rule 12(b)(2) motion. Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir.
1995). But the burden is light at the pleading stage. Id. The court accepts as true all well-pleaded
jurisdictional allegations unless they have been controverted by a defendant through an affidavit
or other evidence. Id. If there are disputed facts, however, the court must resolve them in the
plaintiffs’ 	favor 	and 	will 	consider 	the 	plaintiff’s 	“prima 	facie 	showing 	. 	. 	. 	sufficient
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notwithstanding the contrary presentation by the moving party.” Id. (internal quotations and
citation omitted).
A complaint survives a Rule 12(b)(6) motion to dismiss when it contains “sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (internal quotation and citation omitted). A claim is plausible if there is
sufficient factual content to allow a court “to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. Plausibility requires “more than a sheer possibility that a
defendant has acted unlawfully,” but it “is not akin to a ‘probability requirement.’” Id. “Where a
complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the
line between possibility and plausibility of entitlement to relief.” Id. (internal quotation and citation
omitted). A court must accept as true all well-pleaded allegations in the complaint, but it does not
accept legal conclusions or conclusory statements. Id. at 678-79.
III. 	ANALYSIS
A. 	Personal Jurisdiction
Defendants argue Textron fails to establish personal jurisdiction because the APA is non-
binding and therefore its forum selection clause is unenforceable against either Tsumpes or
Seaguard. They also argue that there is no general personal jurisdiction and that Textron has failed
to establish specific personal jurisdiction over Tsumpes. See Doc. 43 at 6-11. The Court does not
reach Defendants’ arguments about whether the APA is binding (and therefore whether the forum
selection clause applies) because it finds that Textron has made a prima facie showing of specific
personal jurisdiction as to both Tsumpes and Seaguard regardless of the applicability of the APA.
To establish personal jurisdiction over a defendant, a plaintiff must satisfy both the state
long-arm statute and constitutional due process. Trujillo v. Williams, 465 F.3d 1210, 1217 (10th
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Cir. 2006). The Kansas long-arm statute reaches as far as federal due process will allow, so the
issue is narrowed to whether assertion of personal jurisdiction over the defendant would violate
due process. See OMI Holdings, Inc. v. Royal Ins. Co. of Can., 149 F.3d 1086, 1090 (10th Cir.
1998). Due process allows a federal court sitting in diversity to exercise personal jurisdiction over
a non-resident defendant if there exists “minimum contacts” between the defendant and the forum
state. See World-Wide Volkswagen, Co. v. Woodson, 444 U.S. 286, 291 (1980).
As relevant here, minimum contacts can be met by showing “specific” personal jurisdiction
exists. OMI Holdings, 149 F.3d at 1090-91. 5 Specific personal jurisdiction has two requirements.
First, the defendant must purposefully direct its activities at residents of the forum state. Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 472-73 (1985). In contract cases, this is typically referred
to as purposeful availment, meaning the defendant purposefully availed “itself of the privilege of
conducting activities or consummating a transaction in the forum state.” Dudnikov v. Chalk &
Vermilion Fine Arts, Inc., 514 F.3d 1063, 1071 (10th Cir. 2008). The second element of specific
personal jurisdiction is that the suit must arise out of the actions connecting the defendant with the
forum. Burger King Corp., 471 U.S. at 472-73.6
1. 	Tsumpes
Textron must first make a prima facie showing that Tsumpes directed activities at the
forum. The amended complaint alleges that Tsumpes entered the APA with Textron, which
identified him as the purchaser in his individual capacity. Tsumpes traveled to Kansas several
times regarding the purchase of the aircraft, paid several deposits, and signed some amendments
5 	Textron agrees Defendants are not subject to general personal jurisdiction. Doc. 49 at 2 n.2.
6 	If these requirements are both satisfied, a defendant can still argue that exercising personal jurisdiction would
violate traditional notions of fair play and substantial justice. OMI Holdings, 149 F.3d at 1091. Defendants do not
make that challenge here.
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before the APA was formally assigned to Seaguard. The focus of this case is the APA, or at the
very least, the failed aircraft purchase. Textron alleges breach of contract and seeks declaratory
judgment requiring Defendants to comply with the terms of the APA.
Defendants’ motion concedes these contacts with Kansas did occur. See Doc. 43 at 9-10
(agreeing that “telephone calls, correspondence, and visits to inspect the Aircraft did occur”). And
they don’t argue that these contacts would be insufficient in ordinary cases to satisfy specific
personal jurisdiction. But they argue that Tsumpes made those contacts “exclusively as an agent
of Seaguard” and that those contacts “cannot be counted as [Tsumpes’s] personal contacts with
the forum.” Id. Thus, Defendants contend the “fiduciary shield doctrine” protects Tsumpes’s
contacts because he was acting on behalf of Seaguard. Id. at 10.
The fiduciary shield doctrine protects “individual corporate officers . . . where they have
no personal contacts, independent of their representative contacts, with the forum and where there
is no factual basis to pierce the corporate veil.” Caldwell-Baker Co. v. S. Ill. Railcar Co., 225 F.
Supp. 2d 1243, 1262 (D. Kan. 2002) (internal quotation and citation omitted).7 The actions of an
individual acting as a corporate officer do not create personal jurisdiction even if there is personal
jurisdiction over the corporation for which he was working. Id. Rather, specific personal
jurisdiction over the individual “must be based on their personal, not representative, contacts with
the forum.” Id. (internal quotation and citation omitted).
7 	To the extent there is a dispute about whether the fiduciary shield doctrine applies in Kansas, see JCM 082763,
LLC v. Deterding, 2016 WL 234158, at *5 (D. Kan. 2016); Neuer v. Dental Res. Sys., Inc., 2015 WL 4634044, at
*5 (D. Kan. 2015); Fotouhi v. Mobile RF Sols., Inc., 2015 WL 3397205, at *2-3 (D. Kan. 2015), the Court need
not resolve that dispute here. As discussed, the Court finds personal jurisdiction extends to Tsumpes based on his
contacts with Kansas as an individual.
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Defendants rely primarily on Tsumpes’s declaration to assert that all contacts Tsumpes had
with Textron were as Seaguard’s representative. Doc. 43 at 10.8 They also point to his use of the
title “CEO” at times when he signed the APA, as well as one reference to Seaguard when he signed.
Textron disputes that Tsumpes acted only in a representative capacity and therefore the fiduciary
shield doctrine does not apply. Textron notes that Tsumpes was originally the named purchaser
under the APA specifically in his individual capacity, often signed and communicated without
reference to Seaguard, and made multiple contacts with the forum about the aircraft purchase and
the APA before it was assigned to Seaguard. Doc. 49 at 9-10.
Textron has met its burden of establishing a prima facie case that specific personal
jurisdiction exists against Tsumpes. Defendants do not dispute that the contacts at issue suffice to
satisfy the minimum contacts standard. They only argue that those contacts were made based solely
in Tsumpes’s representative capacity. But the APA sufficiently controverts this contention.9 The
APA lists Tsumpes, “an individual,” as the purchaser. Doc. 24 at 4. Tsumpes repeatedly signed
documents without reference to Seaguard, and sometimes only as “Himself.” Id. at 15, 19, 23.
Contrast this with the times Tsumpes signed for Seaguard as “Member,” which came only after
8 	Tsumpes’s declaration states that he is the CEO of Seaguard. Doc. 45-1 at 2. He has made multiple purchases of
aircrafts for Seaguard and does so to take advantage of federal tax provisions that would not be available if he
purchased them personally. Id. at 3. Tsumpes has purchased other aircrafts from Textron on behalf of Seaguard.
See id. at 4. Textron was aware of Tsumpes’s relationship to Seaguard. Id. at 5. When the opportunity to purchase
the subject aircraft came up, Textron offered it to Tsumpes but only gave him five minutes to review the APA. Id.
at 6. Tsumpes quickly electronically signed it without reviewing it for accuracy, and he did not realize his name
was listed as the purchaser, rather than Seaguard. Id. When Tsumpes later signed the End User Certificate of the
APA, he signed and noted he was CEO of Seaguard. Id. The declaration says the deposit payments were made by
Seaguard. Id. at 6-7, 9. Textron sent amendments to Tsumpes with him incorrectly listed as purchaser. Id. at 7.
Tsumpes claims the APA was at all times understood to be executed in the name of Seaguard to take advantage of
the tax benefits, and Textron was aware of this. Id. at 8. In October 2024, Tsumpes reviewed a printed copy of the
APA and discovered that it referred to him personally as the purchaser. Id. He notified Textron. Id. The parties
then agreed to amend the APA to designate Seaguard as the purchaser. Id. at 8-9. Tsumpes maintains that his visits
to Kansas and all communications with Textron were solely as representative of Seaguard. Id. at 9-11.
9 	This is true regardless of whether the APA is an enforceable contract. Even if it is not enforceable, the existence
of the APA, its identification of Tsumpes as the purchaser in his individual capacity, and his signatures demonstrate
his contacts with Kansas and his purposeful availment of this forum.
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the assignment of the APA from Tsumpes to Seaguard. Id. at 26-27. Defendants contend that
listing Tsumpes as the purchaser was just a “mistake.” Doc. 53 at 4. But at this stage, disputed
questions of fact must be resolved in Textron’s favor. Wenz, 55 F.3d at 1505. Accepting Textron’s
version of events, it has made a prima facie case of specific personal jurisdiction against Tsumpes.
2. 	Seaguard
Defendants do not argue that specific personal jurisdiction does not exist as to Seaguard.
They generally don’t dispute that the contacts with the forum in executing the APA would be
sufficient minimum contacts. And, as noted above, their position is that those contacts were all on
behalf of Seaguard. Given this, the Court finds Textron has made a prima facie showing of specific
personal jurisdiction against Seaguard.
Defendants’ motion to dismiss for lack of personal jurisdiction is denied.
B. 	Failure to State a Claim
Defendants next argue that the amended complaint should be dismissed because the APA
was never binding and because Textron did not plead performance. They also contend the
declaratory judgment claim against Tsumpes fails because he doesn’t owe any continuing
obligations under the APA after the assignment to Seaguard.
1. 	APA Not Binding
Defendants first argue that Textron fails to state a claim for breach of contract. “The
elements for a breach of contract claim are: (1) the existence of a contract between the parties; (2)
consideration; (3) the plaintiff’s performance or willingness to perform in compliance with the
contract; (4) defendant’s breach of the contract; and (5) that plaintiff was damaged by the breach.”
Ice Corp. v. Hamilton Sundstrand Inc., 444 F. Supp. 2d 1165, 1169 (D. Kan. 2006).
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As a basis for the breach-of-contract claim, the amended complaint states that Textron and
Tsumpes—who later assigned to Seaguard—entered the APA and its various amendments. Doc.
31 at ¶¶ 8, 25. Textron alleges Tsumpes paid several deposits and that the APA required the final
deposit payment of $400,000 to be paid by January 24, 2025. Id. ¶ 11, 13, 18, 27. Defendants did
not pay the final deposit, either by that deadline or at the time of delivery of the aircraft. Id. ¶ 29.
The delivery date was April 30, 2025 Id. ¶ 31. But Defendants said they would not take delivery
on that date. Id. ¶ 32. Textron contends that Defendants are therefore in pre-delivery breach under
Article 6(a) of the APA. Id. ¶ 33.
Defendants argue Textron cannot meet the first element of a breach-of-contract claim
because the APA is not binding because the deposit was not paid in full. This is based on Article
3.a. of the APA, which states: “When Purchaser signs and returns this Agreement to Seller it will
also pay to seller the Initial Deposit specified in Part 1. Unless and until Seller receives and accepts
the Initial Deposit and Seller signs this Agreement as set out in Article 21, this Agreement is non-
binding.” Doc. 24 at 8. Article 21 of the APA further states:
If (i) the Agreement has not been signed by both parties and (ii)
Seller has not received and accepted the Initial Deposit on or before
the Expiration Date, this Agreement may be modified or withdrawn.
Nonetheless, when the Agreement has been signed by Purchaser and
Seller has finally signed the Agreement in Kansas and received and
accepted the Initial Deposit as set out in Article 3.a, then there will
be a binding agreement per the terms of the signed document. Until
this Agreement becomes a binding contract, the Aircraft may be sold
to another customer.
Id. at 15. Because only $1,100,000 of the $1,500,000 deposit has been paid, Defendants contend
they are not bound by the APA. Doc. 43 at 13.
Textron responds that non-payment of the deposit only renders the APA non-binding to
the extent that the APA can be modified or withdrawn or to the extent Textron can sell the aircraft
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to another customer, per Article 21. Doc. 49 at 5-6, 12-13. Further, failure to make “any payment”
constitutes a “pre-delivery breach” of the APA under Article 6(a). Id. at 6. That provision goes on
to state that “[i]n the event of any pre-delivery breach,” Textron “is entitled to retain all paid
deposits and to receive from Purchaser all remaining deposits due at the time of Purchaser’s
breach.” Doc. 24 at 10. Textron contends that the argument that the APA is not binding until the
deposit is paid in full would render many of these provisions of the APA illusory, ignores the
agreement as a whole, and would vitiate the purpose of the APA. Textron also argues that the
parties’ course of conduct demonstrates that Defendants intended the APA to be binding and
enforceable. Doc. 49 at 6-7.
Ultimately, the parties dispute several different terms of the APA, how those terms relate
to other provisions in the APA, and the parties’ course of conduct. Those disputes cannot be
resolved on a motion to dismiss. The Court finds Textron has otherwise plausibly alleged a breach-
of-contract claim. Defendants’ motion on this point is denied.
2. 	Performance
Defendants next move to dismiss the breach-of-contract claim because Textron did not
plead its performance under the APA. See Ice Corp., 444 F. Supp. 2d at 1169 (listing as an element
“the plaintiff’s performance or willingness to perform in compliance with the contract”).
The amended complaint alleges that the delivery date was April 30, 2025, that Textron
presented “the Aircraft in a Ready for Delivery condition as defined by the Agreement,” that
Defendants told Textron they would not take delivery of the aircraft, and that Textron gave
Defendants the opportunity to cure. Based on this, Textron alleges it fully performed its obligations
under the APA. See Doc. 31 at ¶¶ 31-34.
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This is sufficient to survive a motion to dismiss. Defendants argue Textron was required to
plead that there were no material discrepancies in the aircraft and that it was ready for delivery in
the “Fourth Quarter 2024” as the APA required.10 If Defendants believe that Textron did not
adequately perform under the APA, then they can assert that defense. But Textron was not required
to pre-emptively plead around that defense. Textron sufficiently pleaded performance under the
APA. The motion is denied on this point.
3. 	Declaratory Judgment
Defendants move to dismiss the declaratory judgment claim against Tsumpes “because
Textron fails to allege what ongoing obligations it seeks to impose on Tsumpes despite the
assignment to Seaguard under Amendment 4 to the APA.” Doc. 43 at 15. Defendants contend that
Amendment No. 4 limits Tsumpes’ ongoing liability to damages only. Id. at 16.
This argument is not entirely clear or developed.11 Amendment No. 4 states that if Seaguard
“does not fully and completely perform all obligations of [Tsumpes] under the Agreement, then .
. . [Seaguard and Tsumpes] are both jointly and severally responsible for any and all damages
arising from any breach of the Agreement and [Textron] may pursue both or either party for full
satisfaction.” Doc. 24 at 26. Textron’s declaratory judgment claim seeks a declaration about its
rights under the APA, including that Defendants are jointly and severally liable for the unpaid
damages. This extends to the unpaid $400,000 deposit, but it also relates to Textron’s request that
10 Defendants argue that the aircraft was supposed to be ready for delivery by the “Fourth Quarter 2024” per the
terms of the APA. Doc. 43 at 14. The APA does list the “Fourth Quarter 2024” as the “Ready for Delivery” date,
though it also notes that if the “a Ready for Delivery month or quarter is identified, Seller will notify Purchaser of
the Ready for Delivery Date by letter . . . .” Doc. 24 at 4. The amended complaint also alleges that the parties were
still amending the APA well after the “Fourth Quarter 2024,” and that the full deposit had not been paid through
early 2025 at least. Although Defendants contend there is “no contractual basis” for the allegation that the delivery
date was changed to April 30, 2025, see Doc. 43 at 15, the court must resolve all factual disputes in Textron’s favor
at this stage.
11 The Court notes Defendants change tack in their reply and only briefly argue that the declaratory judgment claim
fails because the APA is not binding. Doc. 53 at 5. This argument has been rejected.
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the Court declare that it is entitled to retain the deposits that were paid. Doc. 31 at ¶ 42. At a
minimum, these allegations seem to reach Tsumpes under the APA post-assignment. This is
sufficient to state a claim at this stage. What, if any, declaratory relief Textron can ultimately get
will be decided at a later date.
C. 	Motion to Strike
Defendants separately move to strike Textron’s withdrawal of a jury demand. Doc. 44.
Textron demanded a jury trial when it filed this case. Doc. 3. Textron later amended its complaint.
Doc. 31. Shortly thereafter, it filed a Notice of Withdrawal of Demand for Jury Trial. Doc. 36. The
notice states that Textron was withdrawing the request because the APA waives the right to a jury
trial. Id.; see also Doc. 24 at 12.
Defendants seek to strike that withdrawal because Textron did not get the consent of all
parties under Rule 38. See Fed. R. Civ. P. 38(d) (“A proper demand may be withdrawn only if the
parties consent.”). Textron responds that the original jury demand was not a proper jury demand
under Rule 38 because the parties waived the right to a jury trial under the APA. Thus, Defendants’
consent to withdraw the demand was not needed.
The Court denies the motion to strike. Other courts have agreed that a jury demand is not
“proper” where a contractual jury waiver exists. See Westminster Sec. Corp. v. Uranium Energy
Corp., 255 F. Supp. 3d 490, 497 (S.D.N.Y. 2017) (“Here, the jury demand was not ‘proper’
because of the contractual jury waiver.”); see also Tetra Fin. Grp., LLC v. Cell Tech Intern, Inc.,
2009 WL 3818373, at *5 (D. Utah 2009). Defendants don’t meaningfully engage with this
argument, other than to reiterate their position that the APA is not binding and therefore the jury
waiver is not enforceable. But as discussed above, that remains an open issue.
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For the first time in their reply, Defendants argue that the jury waiver in the APA is invalid
because it was not knowing and voluntary, lacked conspicuousness, and was the result of unequal
bargaining power. Doc. 50 at 2-3. It also contends that Textron waived the right to assert the jury
waiver provision in the APA because it initially filed a demand for a jury trial. Id. at 3-5. These
may be issues the Court considers at some point. See Little v. Gray Media Grp., Inc., 717 F. Supp.
3d 1058, 1061-62 (D. Kan. 2024) (discussing contractual waiver of a jury trial). But the Court is
disinclined to do so based on arguments raised for the first time in a reply brief.
Ultimately, there is no prejudice to Defendants by allowing Textron to withdraw its jury
demand. Defendants still have not answered, and to the extent they believe this matter should be
tried by a jury, it would seem they could still assert that right. As the case progresses and things
become clearer, the parties can revisit this issue. But this case is still relatively young, and neither
side will be prejudiced by delaying resolution of this question until the enforceability of the APA
and its provisions can be decided. The motion to strike is therefore denied without prejudice.
IV. 	CONCLUSION
THE COURT THEREFORE ORDERS that Defendants’ Motion to Dismiss (Doc. 42) is
DENIED.
THE COURT FURTHER ORDERS that Defendants’ Motion to Strike (Doc. 44) is
DENIED WITHOUT PREJUDICE.
IT IS SO ORDERED.
Dated: April 14, 2026 	/s/ Holly L. Teeter
HOLLY L. TEETER
UNITED STATES DISTRICT JUDGE
Case 6:25-cv-01088-HLT-ADM Document 56 Filed 04/14/26 Page 15 of 15