TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: January 9, 2009
RE: Rule 38, N.D.R.Civ.P., Jury Trial of Right
Staff has prepared amendments to Rule 38 based on the federal form and style amendments. The amendments are intended make the rule more easily understood and to make style and terminology consistent throughout the rules. The amendments also aim to modernize the rule, removing references to obsolete authority and practices.
Rule 38(e) contains the following language: "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." This language apparently was never part of the federal rule and it was not taken from the Revised Code statutes superseded by Rule 38. It has, however, been part of Rule 38 since 1957.
Because there are no minutes of the original civil procedure rule drafting discussions, the rationale for including this language cannot be known for certain. It is a correct statement of the law in North Dakota. See P.E. v. W.C., 552 N.W.2d 375 (N.D. 1996) (stating general rule without citation to Rule 38). The Committee may wish to consider whether some version of this language should continue to appear in the rule.
The proposed amendments to Rule 38 are attached along with a copy of the amendments
to the federal rule.