RULE 39. TRIAL BY JURY OR BY THE COURT
By jury When a Demand is
Made. When trial by jury has been demanded as provided in Rule
38, the action shall be
designated upon the docket as a jury action. The trial of all issues so demanded shall be by
jury, unless (1) the parties or their attorneys of record, by written stipulation filed with the
court or by an oral stipulation made in open court and entered in the record, consent to trial
by the court sitting without a jury or (2) the court upon motion or of its own initiative finds
that a right of trial by jury of some or all of those issues does not exist under the constitution
or statutes of the United States or of the state of North Dakota.
When a jury trial has been demanded under Rule 38, the action must be designated on the docket as a jury action. The trial on all issues so demanded must be by jury unless:
(1) the parties or their attorneys file a stipulation to a nonjury trial or so stipulate on the record; or
(2) the court, on motion or on its own, finds that on some or all of those issues there is no right to a jury trial.
By the court When No Demand is
Made. Issues not demanded for trial by jury as provided in Rule
38 shall be tried by the court; but,
notwithstanding the failure of a party to demand a jury in an action in which such a demand
might have been made of right, the court in its discretion upon motion may order a trial by
a jury of any or all issues.
Issues on which a jury trial is not properly demanded are to be tried by the court. But the court may, on motion, order a jury trial on any issue for which a jury might have been demanded.
(c) Advisory Jury;
Trial by Consent. In all actions not triable of right by a jury the court upon
motion or of its own initiative may
try any issue with an advisory jury or the court, with the consent of both parties, may order
a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of
In an action not triable of right by a jury, the court, on motion or on its own:
(1) may try any issue with an advisory jury; or
(2) may, with the parties' consent, try any issue by a jury whose verdict has the same effect as if a jury trial had been a matter of right.
Rule 39 was amended, effective March 1, 2011.
Rule 39 is
identical to Rule 39, FRCivP, except
for the inclusion of a reference to the
Constitution and statutes of North Dakota in addition to those of the United States in
subdivision (a) and the deletion from subdivision (c) of mention of certain actions against
the United States derived from Fed.R.Civ.P. 39.
Rule 39 was amended, effective March 1, 2011, in response to the December 1, 2007, revision of the Federal Rules of Civil Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Sources: Joint Procedure Committee
Minutes of January 29-30, 2009, page 33; November
29-30, 1979, page 9;
Rule Fed.R.Civ.P. 39 ,
Affected: Superseded: N.D.R.C. 1943
§§ 28-1206, 32-0113.
Rule N.D.R.Civ.P. 38 (Jury Trial of Right) ,