Obsolete Date: 3/1/2007
(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 given by a statute of the United States or of the State of North Dakota shall be preserved to the parties inviolate.
(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.
(c) Size of Jury. If trial by jury is demanded, the jury shall consist of six qualified jurors unless a jury of nine is specifically demanded within the time required by these rules for demanding trial by jury.
(d) Demand--Specifications of Issue. 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 10 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.
(e) Waiver. 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 A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties.
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.