RULE 38. JURY TRIAL OF RIGHT
(b) Demand. Any party may demand a trial by jury of any issue triable of right by jury by (1) serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue, and (2) filing the demand as required by Rule 5(d). Such demand may be indorsed upon a pleading of the party.
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(e) Waiver. The failure of a party to serve and file a demand as required by this rule
and to file it as required by Rule 5(d) constitutes a waiver by the party of trial by jury. A waiver of trial by jury is not revoked by an amendment of a pleading asserting only a claim or defense arising out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties.
Rule 38 was amended, effective January 1, 1978; January 1, 1988; March 1, 1990; March 1, 1998.
Rule 38 is derived from Rule 38, FRCivP, with several exceptions. The Constitution and statutes of North Dakota were added to those of the United States as sources of the right to a trial by jury. Subdivision (c) was amended, effective January 1, 1988, to conform to 1985 amendments to Section 28-14-03.1, NDCC, providing for a jury of 6 members unless a jury of 9 is specifically demanded. The federal subdivision (e) on admiralty and maritime claims is not included. This rule does not change the right to a trial by jury. However, it does provide that the failure of a party to serve a timely demand for trial by jury is a waiver of that right. Subdivision (c) asserts that if a jury is demanded it will be a jury of 6, unless a jury of 9 is specifically demanded within the time required by subdivision (b). Rule 38 was amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.
SOURCES: Procedure Committee Minutes of September 26-27, 1996, page 20; April 20, 1989, page 2; December 3, 1987, page 11; September 18-19, 1986, page 3; September 26-27, 1985, pages 3-4; November 29-30, 1979, pages 8-9; September 15-16, 1977, pages 3-4, 9-10; June 2-3, 1977, pages 7, 10; Section 28-14-03.l; Rule 38, FRCivP.
SUPERSEDED: Sections 28-1206, 28-1214, NDRC 1943.
CROSS REFERENCE: Rules 5 (Service and Filing of Pleadings and Other Papers) and 39 (Trial by Jury or by the Court), 48 (Juries of Less than Nine-Majority Verdict), NDRCivP.