OF RIGHT TO A JURY TRIAL; DEMAND
(a) Right preserved. The right of trial by jury as declared by the
Constitution of the
United States or by the Constitution of the State of North Dakota - or as
by a statute of the United States or of the State of North Dakota - shall
be is preserved to
the parties inviolate.
Any party may demand a trial by jury of any issue triable of
right by jury by:
On any issue triable of right by a jury, a party may demand a jury trial by:
serving upon the other parties a demand therefor in
writing at any time after the
commencement of the action and not later than ten days after the service of the last
pleading directed to such issue, and
serving the other parties with a written demand - which may be included in a pleading - no later than 14 days after the last pleading directed to the issue is served; and
filing the demand as required by Rule 5(d). Such
demand may be endorsed upon a
pleading of the party.
filing the demand in accordance with Rule 5(d).
(c) Size of Jury.
If trial by jury is demanded, the jury
must consist of six qualified jurors unless a
jury of nine is specifically demanded within the time required by these
demanding making a jury trial by jury
demand under Rule 38(b).
Demand-Specifications of issue
Specifying Issues. In the demand a party may specify the issues the party
wishes so tried; otherwise the
party is deemed to have demanded trial by jury of all the issues so triable. If a party has
demanded trial by jury for only some of the issues, any other party within ten days after
service of the demand or such lesser time as the court may order, may serve a demand for
trial by jury of any other or all of the issues of fact in the action.
In its demand, a party may specify the issues that it wishes to have tried by a jury; otherwise, it is considered to have demanded a jury trial on all the issues so triable. If the party has demanded a jury trial on only some issues, any other party may, within 14 days after being served with the demand or within a shorter time ordered by the court, serve a demand for a jury trial on any other or all factual issues triable by a jury.
(e) Waiver; Withdrawal.
The failure of a party to serve and file a demand as required
by this rule 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.
A party waives a jury trial unless its demand is properly served and filed. A party may not revoke a waiver of a jury trial by amending a pleading that asserts only a claim or defense arising out of the conduct, transaction, or occurrence described in the original pleading. A proper demand may be withdrawn only if the parties consent.
Rule 38 was amended, effective January 1, 1978; January 1, 1988; March 1, 1990; March 1, 1998; March 1, 2007; March 1, 2011.
Rule 38 applies to a demand made under N.D.C.C. § 30.1-15-04 for a jury trial in a formal testacy proceeding.
Rule 38 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.
Paragraph (b)(1) was amended, effective March 1, 2011, to increase the time to demand a jury trial from 10 to 14 days.
Subdivision (d) was amended, effective March 1, 2011, to increase the time for another party to serve a demand for a jury trial on other factual issues from 10 to 14 days.
Sources: Joint Procedure Committee Minutes of April 29-30, 2010, page 13; January 29-30, 2009, pages 32-33; April 27-28, 2006, page 14; 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 28-14-03.1; Fed.R.Civ.P. 38.
Superseded: N.D.R.C. 1943
§§ 28-1206, 28-1214.
Considered: N.D.C.C. § 30.1-15-04.
Rules N.D.R.Civ.P. 5 (Service and Filing of Pleadings and
Papers), and N.D.R.Civ.P. 39 (Trial by Jury or by the
Court), and N.D.R.Civ.P. 48
(Juries of Less Than Nine-Majority Verdict) ,