NOTES TO RULE 38
HISTORY: (Amended July 1, 1966; Aug. 1, 1987; Dec. 1, 1993)
Notes of Advisory Committee on Rules.
This rule provides for the preservation of the constitutional right of trial by jury as directed in the enabling act (act of June 19, 1934, 48 Stat 1064, USC, Title 28, former § 723c (now § 2072)), and it and the next rule make definite provision for claim and waiver of jury trial, following the method used in many American states and in England and the British Dominions. Thus the claim must be made at once on initial pleading or appearance under Ill Rev Stat (1937) ch 110, § 188; 6 Tenn Code Ann (Williams, 1934) § 8734; compare Wyo Rev Stat Ann (1931) § 89-1320 (with answer or reply); within 10 days after the pleadings are completed or the case is at issue under 2 Conn Gen Stat (1930) § 5624; Hawaii Rev Laws (1935) § 4101; 2 Mass Gen Laws (Ter Ed 1932) ch 231, § 60; 3 Mich Comp Laws (1929) § 14263; Mich Court Rules Ann (Searl, 1933) Rule 33 (15 days); England (until 1933) O. 36, r. r. 2 and 6; and Ontario Jud Act (1927) § 57(1) (4 days, or, where prior notice of trial, 2 days from such notice); or at a definite time varying under different codes, from 10 days before notice of trial to 10 days after notice, or, as in many, when the case is called for assignment, Ariz Rev Code Ann (Struckmeyer, 1928) § 3802; Calif Code Civ Proc (Deering, 1937) § 631, par 4; Iowa Code (1935) § 10724; 4 Nev Comp Laws (Hillyer, 1929) § 8782; NM Stat Ann (Courtright, 1929) § 105-814; NYCPA (1937) § 426, subdivision 5 (applying to New York, Bronx, Richmond, Kings, and Queens Counties); RI Pub Laws (1929), ch 1327, amending RI Gen Laws (1923) ch 337 § 6; Utah Rev Stat Ann (1933) § 104-23-6; 2 Wash Rev Stat Ann (Remington, 1932) § 316; England (4 days after notice of trial), Administration of Justice Act (1933) § 6 and amended rule under the Judicature Act (The Annual Practice, 1937), O. 36, r. 1; Australia High Court Procedure Act (1921) § 12, Rules, O. 33, r. 2; Alberta Rules of Ct (1914) 172, 183, 184; British Columbia Sup Ct Rules (1925) O. 36, r. r. 2, 6, 11, and 16; New Brunswick Jud Act (1927) O. 36, r. r. 2 and 5. See James, Trial by Jury and the New Federal Rules of Procedure (1936), 45 Yale L J 1022. Rule 81(c) provides for claim for jury trial in removed actions.
The right to trial by jury as declared in USC, Title 28, formerly § 770 (now § 1873) (Trial of issues of fact; by jury; exceptions), and similar statutes, is unaffected by this rule. This rule modifies USC, Title 28, former § 773 (Trial of issues of fact; by court).
Notes of Advisory Committee on 1966 Amendments to Rules.
See note to Rule 9(h), supra.
Notes of Advisory Committee on 1987 Amendments to Rules.
The amendments are technical. No substantive change is intended.
Preliminary draft of proposed amendment. A preliminary draft, dated September, 1989, proposed amendments to Rule 38 as follows:
(a)-(c) [Unchanged]
(d) Waiver. The failure of a party to serve a demand as required by this rule, constitutes a waiver by the party of trial by jury. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties.
(e) [Unchanged]
Notes of Advisory Committee on 1989 Amendments to Rules.
The purpose of the amendment is to eliminate an uncertainty regarding the failure of a party to file a jury demand as required by Rule 5(d). The present text of subdivision (d) indicates that a waiver occurs if the party making the demand does not both serve and file the demand. Such a requirement is inconsistent with the text of subdivision (b), which requires a demand, but no filing. At least one court has held that a party filing but not serving a demand has not waived the right. Biesencamp v. Atlantic Richfield Company, 70 F.R.D. 365 (E.D. Pa. 1976). The amendment would harmonize the two subdivisions.
A party seeking a jury would still be required to demand it and the demand must be filed under Rule 5(d), but failure to file does not result in waiver of the right.
Notes of Advisory Committee on 1993 Proposed Amendments to Rule.
Language requiring the filing of a jury demand as provided in subdivision (d) is added to subdivision (b) to eliminate an apparent ambiguity between the two subdivisions. For proper scheduling of cases, it is important that jury demands not only be served on other parties, but also be filed with the court.