JOHN H. MACSHERRY, JR., Plaintiff - Appellee, v. SPARROWS POINT, LLC; COMMERCIAL DEVELOPMENT COMPANY, INC.; MICHAEL ROBERTS, Defendants - Appellants. JOHN H. MACSHERRY, JR., Plaintiff - Appellant, v. SPARROWS POINT, LLC; COMMERCIAL DEVELOPMENT COMPANY, INC.; MICHAEL ROBERTS, Defendants - Appellees.
No. 19-1281, No. 19-1321
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Decided: September 1, 2020
Argued: May 27, 2020. Appeals from the United States District Court for the District of Maryland, at Baltimore. Frederick P. Stamp, Jr., Senior District Judge. (1:15-cv-00022-FPS)
PUBLISHED
Before MOTZ and DIAZ, Circuit Judges, and Max O. COGBURN, Jr., United States District Judge for the Western District of North Carolina, sitting by designation.
Vacated and remanded by published opinion. Judge Diaz wrote the opinion, in which Judge Motz and Judge Cogburn joined.
Joshua J. Gayfield, Megan J. McGinnis, MILES & STOCKBRIDGE P.C., Baltimore, Maryland, for Appellants/Cross-Appellees. Andrew K. O‘Connell, THOMAS & LIBOWITZ, P.A., Baltimore, Maryland, for Appellee/Cross-Appellant.
DIAZ, Circuit Judge:
On appeal, the defendants contend that the evidence is insufficient to support the jury‘s verdict as to all claims. Alternatively, they seek a new trial on two grounds, contending that the district court erred both in admitting evidence (under
As we explain, we agree that the evidence of the defendants’ effort to compromise Macsherry‘s claim wasn‘t admissible for any purpose under
I.
We begin with the facts, many of which are contested, and the procedural history.
A.
1.
In the late 1980s, Michael Roberts bought his first piece of industrial real estate in the form of a defunct brewery. Within a year, he had demolished the facility, sold the scrap, remediated the property‘s environmental liabilities, and resold it for a huge profit. Looking to replicate the success of that venture, in 1990, Michael Roberts and his brother, Thomas,3 founded Commercial Development Company, Inc. (“CDC“), a Missouri-based company, to facilitate the remediation and resale of other such “brownfield” properties.
In the years since, the Roberts brothers have developed a business model whereby they form single-purpose companies to purchase individual brownfield properties, whose environmental liabilities are then remediated by CDC. The brothers then resell the parcels through their respective single-purpose companies. And while the brothers share control of all companies involved in the process, one of them is assigned principal responsibility for each property.
So it was that, in September 2012, the Roberts brothers formed Sparrows Point, LLC, another Missouri-based company, for the purpose of acquiring about 3,100 acres of highly contaminated industrial property on the Sparrows Point peninsula, where the Bethlehem Steel mill formerly stood. Michael Roberts was assigned responsibility for the Sparrows Point site, which was purchased in tandem with an unaffiliated, Chicago-based liquidation firm called Hilco Global. The transaction was structured so that Hilco acquired the site from the railroad tracks up, while Sparrows Point, LLC acquired it from the land down, including all of the environmental liabilities. As usual, the defendants planned to redevelop
2.
Soon after the acquisition of the Sparrows Point site, CDC‘s then Vice President of Asset Management, Robert Schoelch, approached Michael Roberts to discuss, as Michael later testified, “hiring a local representative to act as boots on the ground in Baltimore.” J.A. 782. In Schoelch‘s view, the defendants needed someone with a solid network in the community to help “move the project forward” by dealing with brokers, tenants, and state and local officials, among other responsibilities. J.A. 1421. According to Schoelch, they also discussed the need for a “commission component” to the position‘s compensation package, J.A. 1435, though Michael testified to the contrary and that he “never authorized” Schoelch to offer a commission component, J.A. 786.
Enter Macsherry, who, on September 20, 2012, sent an email to CDC‘s Chief Executive Officer, Randall Jostes, to inquire about working for “the owners of Sparrows Point.” J.A. 440. As if reading Schoelch‘s mind, Macsherry billed himself as “a Baltimore person who ha[d] been in the real estate industry for close to 30 years,” with “excellent experience” in “master planning” and “development,” “excellent contacts in the community,” and valuable “knowledge” of the Baltimore Harbor. J.A. 1611.
Macsherry‘s email was forwarded to Schoelch, who then called Macsherry. Over the ensuing weeks, the two men exchanged half a dozen more calls and emails regarding the boots-on-the-ground position—until, on December 4, 2012, Schoelch called Macsherry to say that the defendants wanted to make him an offer.
What happened next is somewhat disputed. Macsherry testified that Schoelch sent him an email (which, however, was never produced in discovery), along with a one-page term sheet attached (a copy of which was produced), that same day. See J.A. 1673 (the “Original Term Sheet“). Though it contains no date, names, or signature lines, the Original Term Sheet lists the relevant position as Sparrows Point, LLC‘s “Vice President of Leasing and Development” and recites, among other terms, a “Salary” of $50,000 per year and a “Commission” of “75 basis points paid on the total net value of any sales/leases or parcels.” Id. Michael Roberts, Schoelch, and Macsherry all testified that they understood “75 basis points” to mean three-quarters of one percent, i.e., a 0.75% commission.
After receiving the Original Term Sheet, Macsherry sought to negotiate better terms, especially with respect to pay and vacation time. According to Macsherry, Schoelch said he would need to obtain Michael‘s approval for any changes, and shortly thereafter sent Macsherry (in another email that was never produced in discovery) a red-lined version of the term sheet (a copy of which was produced in discovery). See J.A. 1657 (the “Red-Lined Term Sheet“).
In addition to a newly listed start date of Monday, December 10, 2012, the Red-Lined Term Sheet recites a salary of $77,000 and two extra vacation days, while the commission term remains substantially the same at “75 basis points paid on the total value of any sales/leases or parcels on any deals closed after the Start Date.” Id. Further, while the Red-Lined Term Sheet still lacks any date, names, or signature lines, the Tracked Changes panel of the Microsoft Word document that Macsherry received reflects that the changes were entered by “R. Schoelch” on December 4, 2012. Id.
For his part, Schoelch recalled little about his interactions with Macsherry between September 20 and December 4, but conceded to having created and sent the Red-Lined Term Sheet to Macsherry. Not in dispute, however, was that no employment contract was formed on December 4 because the Red-Lined Term Sheet wasn‘t a formal offer, as Michael Roberts had not yet approved it.
On December 6, CDC flew Macsherry out to their headquarters in St. Louis. He spent about an hour meeting with the Roberts brothers, during which time they discussed such generalities as the redevelopment of the Sparrows Point site and the Baltimore real estate scene, but not such details as Macsherry‘s compensation. “That kind of stuff,” Michael Roberts would later testify, “was all . . . up to [Schoelch].” J.A. 785-86.
Macsherry then met with CDC‘s Chief Operating Officer and Director of Human Resources, Becky Lydon. According to Macsherry, after telling him that he was officially hired, Lydon gave him a “clean version” of the Red-Lined Term Sheet—that is, one without the redlines but with all the same terms—to sign. J.A. 469-70. Macsherry knew the clean version memorialized the same terms as the Red-Lined Term Sheet (including with respect to commission) because he had brought a copy of the latter along with him to St. Louis, and “compared the two documents” side-by-side right then and there. J.A. 470. Macsherry added that after he‘d signed the clean version, Lydon said she would “get Mike Roberts to sign it” too and “send [him] a copy.” J.A. 471. But Macsherry never received a copy, and no clean version of the Red-Lined Term Sheet—nor any other document purporting to be Macsherry‘s employment agreement—was ever produced in discovery.
Lydon‘s testimony paints an entirely different picture of this meeting. She never told Macsherry he was hired and, in fact, didn‘t even know that he‘d been hired until later that day, when Schoelch told her so. Lydon had been asked to simply “go in and explain” what Macsherry‘s medical, dental, and vision benefits would be, J.A. 1328-29, and hadn‘t presented Macsherry with any employment agreement. And she didn‘t learn the details of Macsherry‘s compensation package until the next day, when Schoelch told her that Macsherry would be paid a salary of $77,000, with no commission component. As for Schoelch, he testified that he couldn‘t recall the final terms of Macsherry‘s compensation package.
3.
On December 10, 2012, Macsherry began working as CDC‘s Vice President of Development and Leasing—consistent with the date and position (though technically not the same employer) reflected in the Red-Lined Term Sheet.
Macsherry performed myriad duties as the defendants’ local representative for the Sparrows Point site, such as dealing with officials from the Maryland Port Authority and other state and local agencies, supervising the extensive remediation of the site‘s complex environmental liabilities, managing the site‘s water and sewer infrastructures, dealing with the site‘s existing tenants, and creating a concept plan for marketing the redeveloped site. Macsherry also supervised a third-party real estate
The leading candidate to purchase the redeveloped Sparrows Point site soon emerged as Hilco, the company that already owned the site from the railroad tracks up. Hilco had expressed its interest in acquiring the remainder of the site at a dinner with the Roberts brothers in late 2012. The brothers turned their end of the negotiations over to Schoelch and Jostes, who continued to court Hilco, with varying degrees of success, throughout 2013. For Macsherry‘s part, he testified that, while Hilco “wasn‘t [his] sale to make,” J.A. 624, he was nonetheless involved in the client relationship by “doing what [he] was hired to do“—that is, by “dealing with Hilco on various issues” related to the defendants’ redevelopment of the site, J.A. 621.
In May 2013, Macsherry negotiated the renewal of a lease with the Nelson Company, an existing tenant of the Sparrows Point site. Seeking payment of a 0.75% commission (amounting to $281) on that renewal, Macsherry emailed Lydon and Schoelch separately, asking them each to send him a copy of his employment agreement, which he said he‘d never received (to Lydon) or had misplaced (to Schoelch). Lydon responded that she was “in the middle of a big closing” and asked whether Macsherry had “checked with [Michael Roberts].” J.A. 1653. Macsherry replied that Michael “said he could not find it” and blamed its absence “on his filing system” (adding “like he has one“), but now attached a copy of the Red-Lined Term Sheet, which he characterized as an unsigned copy of his agreement. Id. Macsherry also sent Schoelch a copy of the Red-Lined Term Sheet, as well as a formal commission invoice.
The parties offer characteristically competing accounts of how Macsherry‘s request for a commission on the Nelson lease was resolved. According to Macsherry, Schoelch called to assure him that the Red-Lined Term Sheet reflected his employment terms and that he would receive the requested commission, but stated that it wasn‘t “a good time to process the invoice” because “there was a lot going on.” J.A. 535. Schoelch, by contrast, testified that he told Macsherry that the Red-Lined Term Sheet “was not his term sheet,” J.A. 1493, and that he didn‘t know the “final terms” of Macsherry‘s agreement, J.A. 1497. As for Lydon, she claimed that she reached out to Schoelch after receiving Macsherry‘s initial email and was told that Macsherry had no employment agreement, though she never relayed that information to him. By late July, Macsherry dropped his pursuit of a commission on the Nelson lease.
4.
After months of negotiations, Hilco agreed to buy the balance of the Sparrows Point site for $110 million. The deal closed on September 18, 2014, and the Roberts brothers pocketed upwards of $65 million in profit.4
As the Hilco sale was about to close, Macsherry emailed Lydon to request his 0.75% commission (amounting to $825,000) on the sale, attaching the Red-Lined Term Sheet in support. Lydon forwarded the request to Michael Roberts, who ignored it. Macsherry then called Michael directly and left him a voicemail about his request for a commission, and also sent him an email to the same effect, but Michael didn‘t respond to either.
On September 17, Macsherry told Lydon that he still hadn‘t heard from Michael about his request for a commission on the Hilco sale. The sale closed the following day, and Macsherry was terminated without a commission, though the defendants did pay a commission to Turley (the independent broker). On September 19, Macsherry emailed Michael Roberts again to request that he call him about his commission request, which Michael finally did.
During their first call, Michael asked Macsherry to send him a copy of the document supporting his request for a commission, and Macsherry obliged by sending him the Red-Lined Term Sheet. The substance of their second call is hotly disputed. According to Macsherry, Michael told him: “I know I owe you a commission. I don‘t believe you deserve a commission as big. What will you take?” J.A. 591-92 (the “Compromise Statements“). In response, Macsherry said that he believed he was owed the full 0.75% commission reflected in the Red-Lined Term Sheet, but remained open to an offer. Michael said he would think about it and get back to him, but never did.
In Michael‘s telling, however, he told Macsherry that the Red-Lined Term Sheet was “not an employment agreement” and that Macsherry wasn‘t owed any commission.5 J.A. 938. Michael also told Macsherry that he wasn‘t “opposed” to paying Macsherry “a bonus of some sort,” but didn‘t actually make an offer. Id. Whatever was said, Macsherry and Michael reached no resolution that day or thereafter.
B.
Macsherry filed suit in the Circuit Court for Baltimore County in November 2014, asserting four alternative claims: (I) violation of Maryland‘s Wage Payment and Collection Law (the “MWPCL“), see
Macsherry‘s state-court complaint didn‘t expressly demand a jury trial. Rather, it referenced a jury only in the ad damnum paragraphs at the end of each of Macsherry‘s four substantive claims, which requested the court to “[a]ward . . . any other relief this Court or a jury deems appropriate.” J.A. 37, 38, 39, 41. The complaint was also accompanied by a Case
The defendants removed the case to the district court for the District of Maryland, invoking the court‘s diversity jurisdiction. On the Civil Cover Sheet accompanying the notice of removal, the defendants likewise checked the “No” box of the “Jury Demand” section, which said to “Check Yes only if demanded in complaint.” J.A. 29.
The defendants simultaneously moved to dismiss the complaint, which the district court granted in part, as to Michael Roberts alone, on the ground that the complaint failed to state a claim against him individually. Macsherry v. Sparrows Point, LLC, No. 1:15-cv-22 (D. Md. May 21, 2015).
Attempting to cure this pleading defect, Macsherry filed an amended complaint—which, like his initial, state-court complaint, only referenced a jury in the four ad damnum paragraphs’ requests for “any other relief this Court or a jury deems appropriate.” J.A. 59, 60, 62, 63. Michael Roberts again moved to dismiss the amended complaint on individual liability grounds, which the district court granted in part, as to claims II, III, and IV. Macsherry v. Sparrows Point, LLC, No. 1:15-cv-22, 2015 WL 6460261, at *9-15 (D. Md. Oct. 23, 2015).
In January 2016, the parties filed a joint status report in which Macsherry first contended that the case was “to be tried by a jury.” J.A. 98. The defendants countered “that a proper jury demand was not made,” however, and the parties noted that “[m]otions practice may be required to resolve the dispute.” Id. To that end, Macsherry moved again to amend his complaint (as well as to reopen discovery), seeking to add an express demand for a jury trial. But the district court denied the motion, finding amendment improper under
The parties then briefed cross-motions for summary judgment, which the district court denied. Macsherry v. Sparrows Point, LLC, No. 1:15-cv-22, 2017 WL 3315262 (D. Md. Aug. 3, 2017) (the “Summary Judgment Opinion“). The court found that the case was “riddled with significant factual disputes,” id. at *36, including whether the parties agreed to the commission term reflected in the Red-Lined Term Sheet and, if so, whether that term was ambiguous in its scope, see id. at *21-24.
C.
With the case set for trial, Macsherry moved for a jury trial alternatively under
Prior to trial, the parties also briefed two motions in limine, including one by the defendants to exclude evidence of Michael Roberts‘s Compromise Statements pursuant to
The parties proceeded to a seven-day jury trial. At trial, the defendants renewed their
The defendants subsequently moved pursuant to
This appeal followed.
II.
The defendants first contend that the district court erred in admitting evidence of the Compromise Statements under
A.
We start with the text of
(1) furnishing, promising, or offering—or accepting, promising to accept, or offering to accept—a valuable consideration
in compromising or attempting to compromise the claim; and (2) conduct or a statement made during compromise negotiations about the claim—except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.
Thus, our task here is to determine whether the Compromise Statements are the sort of evidence implicated under
1.
At bottom,
Rather, in our view, a dispute exists for purposes of
The district court agreed with this principle, but found that there was nonetheless no actual dispute or difference of opinion regarding Macsherry‘s claim to a commission on the Hilco sale at the time Michael Roberts allegedly made the Compromise Statements. See Motions in Limine Opinion, 2018 WL 1123696, at *5. In so holding, the court reasoned that Michael‘s previous efforts “to avoid” Macsherry‘s requests for a commission on the Hilco sale “fl[ew] in the face of any notion of a dispute.” Id. In other words, the court effectively ruled that a dispute must be explicitly communicated from one party to the other before it implicates
We think that it strains both the plain language of
So too here, the defendants had clearly—if impliedly—communicated a difference of opinion over Macsherry‘s claim to a commission on the Hilco sale by the time of the Compromise Statements. Recall that, even crediting Macsherry‘s account of the events surrounding his earlier request for a commission on the Nelson lease, the defendants had been ignoring his invoice for a mere $281 for well over a year by then, and showed no intention of changing their tune. The defendants also had never so much as sent Macsherry, as he put it, “any kind of acknowledgement” about the status or whereabouts of his final agreement, let alone a copy of it. J.A. 555. As a result, Macsherry sent Lydon another copy of the Red-Lined Term Sheet on September 9, 2014, when he first requested a commission on the Hilco sale, being “concerned” that the defendants weren‘t on the same page about the terms of his agreement. J.A. 554.
The dispute over the commission became more pronounced over the ensuing weeks. Notably, while Macsherry received no “follow up” from Lydon or Michael Roberts for several days after his initial requests, see Weems, 665 F.3d at 963, the termination letter that he received from Lydon on September 12 came “inferentially in response” thereto, see id. at 665-66, insofar as it addressed Macsherry‘s outstanding payroll entitlements without mentioning any commission. Indeed, Macsherry was so alarmed at the omission that he responded by urging the defendants to “honor” their “agreement” to pay him a commission. J.A. 1670.
But rather than honor the alleged agreement, the defendants instead terminated Macsherry without paying him any commission. Michael Roberts then persisted in ignoring Macsherry‘s requests to discuss his commission after terminating him. Surely, the only “reasonable inference” to be drawn from such extensive efforts to avoid Macsherry‘s requests and terminate him without a commission is that the defendants disputed their obligation to pay the commission in the first instance.
Moreover, even if Michael Roberts‘s difference of opinion wasn‘t sufficiently clear when he finally gave Macsherry a call on September 25, the Compromise Statements themselves lay it bare. In Macsherry‘s own telling, Michael‘s alleged statements explicitly disputed at least the amount of his claim to a commission on the Hilco sale, see J.A. 591–92 (“I don‘t believe you deserve a commission as big.“), and explicitly sought to negotiate a compromise, see J.A. 592 (“What will you take?“). And in response, Macsherry says that he invited Michael to make him an “offer.” Id. Such evidence thus plainly consists of “statement[s] made during compromise negotiations” about Macsherry‘s disputed claim. See
We turn next to consider whether the Compromise Statements were properly admitted for a purpose other than “to prove or disprove the validity or amount” of Macsherry‘s disputed claim to a commission,
To the contrary, because the district court found that the Compromise Statements were admissible without limitation, the court allowed them to be used for one of the very purposes foreclosed thereunder: to prove the validity of the claim that “the compromise offer was meant to settle.” See Weems, 665 F.3d at 966–67. The evidence was indeed highly relevant to show the validity of Macsherry‘s claim to a commission on the Hilco sale, since Michael Roberts‘s alleged statements conceded as much. And by the same token, the validity of Macsherry‘s claim to such a commission was the central issue at trial with respect to each of his substantive claims.8 Thus, because the district court‘s premise that the evidence didn‘t implicate
We also think the district court erred in finding (in the alternative) that, even if the evidence was inadmissible to prove the validity of Macsherry‘s substantive claims, it was admissible under
While the purpose identified by the district court is technically distinct from that of proving the validity of Macsherry‘s claim, the court failed to consider whether that purpose is “inseparable” from one foreclosed under
Other circuits have likewise construed
The same result follows here. Simply put, because the defendants’ bad-faith liability for Macsherry‘s claim to a commission under
B.
Of course, the district court‘s error in admitting the Compromise Statements does not necessarily compel relief. Instead, we must assess whether the error was harmless within the meaning of
Evidence of the Compromise Statements was particularly harmful to the defendants with respect to Macsherry‘s claim for enhanced damages. True, other evidence in the record supported the claim, such as the defendants’ persistent efforts to avoid Macsherry rather than deny his claim outright; Roberts‘s admission that he didn‘t ask Schoelch whether he offered Macsherry a commission; and the defendants’ transfer of funds from their corporate accounts to family trusts after learning that Macsherry intended to retain counsel. But it‘s difficult to imagine any more probative evidence on the question of the defendants’ good faith than an admission by CDC‘s owner that Macsherry was entitled to a commission on the Hilco sale. In fact, the Compromise Statements were the only evidence of bad faith that the district court cited in denying the defendants’ motion for summary judgment on this claim. See Motion for Summary Judgment Opinion, 2017 WL 3315262, at *33. It follows that such evidence wasn‘t harmless with respect to the jury‘s verdict awarding enhanced damages.
While Macsherry‘s remaining claims present a closer call, we are insufficiently certain that the jury‘s verdicts with respect to them weren‘t likewise substantially swayed by the error. True, the jury reasonably could have credited Macsherry‘s theories of liability all the same without evidence of the Compromise Statements. For instance, it was largely
But we can‘t say with a fair assurance that the jury would have found that Macsherry was entitled to an $825,000 commission on the Hilco sale if the Compromise Statements had been excluded. Notably, those statements were the sole evidence tending to undermine all three of the defendants’ principal theories of non-liability, namely: (1) that Macsherry had no formal employment agreement; (2) that even if he did, Michael Roberts was required to (yet didn‘t) sign off on any commission term; and (3) that even if he did, the commission term should be construed (in accordance with trade usage) to depend on Macsherry‘s procurement of the buyer.9
The probative value of the evidence wasn‘t lost on Macsherry, who emphasized Michael Roberts‘s alleged admission that he was owed a commission on the Hilco sale at length, and for each of these purposes, in closing argument. And especially since the statements were made by an individual who, in Macsherry‘s own words, “exercised an unusual level of control” over his companies and their employees, J.A. 1090, we think the likelihood that they made a powerful impression on the jury is too substantial to overlook. Thus, even if the jury generally credited Macsherry‘s version of events, we can‘t say with sufficient certainty that evidence of the Compromise Statements wasn‘t the straw that broke the camel‘s back. Cf. Weems, 665 F.3d at 968 (finding harmful error where the improperly admitted evidence “very likely . . . affected the jury‘s deliberations and . . . verdicts,” even if the properly admitted evidence “was sufficient to support the verdict” (cleaned up)).
In sum, the district court‘s errors under
III.
A.
Having granted the defendants a new trial, we next consider whether that trial may take place before a jury by taking up their contention that the district court erred in granting Macsherry‘s motion for jury trial pursuant to both
B.
The Federal Rules of Civil Procedure preserve “inviolate” the parties’ “right of trial by jury as declared by the Seventh Amendment to the Constitution,”
1.
Macsherry failed to properly demand a jury trial under these interlocking rules. For starters, the parties don‘t dispute the district court‘s ruling that Macsherry‘s state-court complaint failed to expressly demand a jury trial in accordance with Maryland law. See Jury Trial Opinion, 2017 WL 5591798, at *3; cf.
In finding to the contrary, the district court mistakenly relied on our observation (in an unpublished decision) that “technical” compliance with
The district court‘s reliance on Lutz v. Glendale Union High Sch., 403 F.3d 1061 (9th Cir. 2005), was also misplaced. In that case, our sister circuit began by noting that, “[i]deally,” a demand under
Even assuming that Lutz marks the outer limit of
2.
Even though Macsherry “waive[d] a jury trial” as of right by failing to file a proper demand under
We have not squarely addressed the scope of a district court‘s discretion to grant a motion for jury trial under
Our sister circuits have tended to construe a district court‘s discretion to grant relief under
We find more persuasive the view of the First Circuit, however, that the scope of discretion granted under
The view that district courts enjoy broad discretion to grant or deny a motion under
Allowing that some cases may present “exceptional circumstances” that “would appear to compel the court, in the exercise of its discretion, to order a jury trial,” we found that the circumstances at issue were a far cry from the sort. Id.; see also McCray v. Burrell, 516 F.2d 357, 371 (4th Cir. 1975) (“[W]e cannot say that there were such exceptional circumstances that the failure to grant the . . . motion was an abuse of discretion.” (citing Gen. Tire & Rubber, 331 F.2d at 197–98)). Our decision today simply extends the same principles to a district court‘s correlative discretion to grant a motion under
The defendants assert that such a deferential view of
Whereas the view that
In this case, we are satisfied that the district court didn‘t exceed its broad discretion to grant Macsherry‘s motion for a jury trial under
* * *
For the reasons given, we vacate the district court‘s judgment and remand the case for a new trial.
VACATED AND REMANDED