(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 provided by a statute of the United States or of the State of North Dakota—is preserved to the parties inviolate.
(b) Demand. On any issue triable of right by a jury, a party may demand a jury trial by:
(1) 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
(2) 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 for making a jury trial demand under Rule 38(b).
(d) Specifying Issues. 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. 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 A proper demand may be withdrawn only if the parties consent.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 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; Rule 38, FRCivP.
CONSIDERED: N.D.C.C. § 30.1-15-04.