Making a Proper Demand

Making a Proper Demand

A jury trial must be claimed, and Rule 38(b) prescribes the claim as two separate acts. The party serves 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 the party files the demand in accordance with Rule 5(d).¹ Omitting either act costs the party the jury, because a party waives a jury trial unless its demand is properly served and filed.²

The two acts reach two audiences, and neither substitutes for the other. Service tells the other parties that a jury may hear the issue; filing puts the demand before the court. A demand handed to opposing counsel but never filed leaves the court's record without a request for a jury, and a demand filed but never served leaves the opposing parties uninformed.

The subsections below follow the order in which a lawyer meets the requirements: the writing and the parties it must reach, the 14-day deadline, the way later pleadings open new windows for new issues, and the filing.

Written Service on Parties

Three features of the demand come straight from the rule: it must be written, it needs no particular form, and it must be served on all parties.³ The deadline for service belongs to the next subsection.

An oral demand does not count. Like an untimely demand, it is insufficient to secure a jury trial.⁴ A lawyer who tells the judge at a scheduling conference, or tells opposing counsel by telephone, that the client wants a jury has made a request and has not made a demand. The writing requirement matters because the penalty for a defective demand is waiver. Whether a party claimed the jury should therefore be a question that a paper answers, and should not turn on who remembers a conversation.

The rule asks for a writing and nothing more. No particular form is required, and the demand may be included in a pleading, so a party can claim the jury with one line in a paper it must serve anyway.⁵ In Dairy Queen, the petitioner's answer denied breach of the contract, pleaded laches and estoppel, and charged antitrust violations, and the petitioner indorsed on that answer a demand for trial by jury in accordance with Rule 38(b).⁶ The wording can be brief. A sample demand under the Massachusetts rule reads: “Pursuant to Mass. R. Civ. P. 38(b), the plaintiff demands jury trial of all issues triable of right by a jury.”⁷ That sentence invokes the Massachusetts rule, so it illustrates wording and says nothing about the federal deadline.

A demand should be set off from the body of the pleading so that it is readily recognizable, even though the federal rule requires no particular format.⁸ Putting it in the complaint or the answer is permissible and wise, because a party who postpones the step may forget it during the short period and waive the jury by omission.⁹ A separately captioned demand in the first pleading removes both risks.

The demand must also be served on all parties.¹⁰ A general demand by one party secures the other parties' jury rights on every issue triable by jury without any further step by them, and it cannot be withdrawn without the consent of all the parties.¹¹ Each party may therefore come to rely on a demand it never made, which is why each of them must receive it.

The act that delivers the first buyer's complaint also delivers the demand to each defendant. The second buyer's paper reached only part of the audience the rule names, and the distributor never learned that the issues would go to a jury. A demand that is written and served on everyone must still be timely and filed, so the deadline comes next.

The 14-Day Deadline

The time for claiming a jury is short, and it runs from a pleading and not from the start of the lawsuit. The party must serve its written demand “no later than 14 days after the last pleading directed to the issue is served.”¹³ The number sets the length of the window, the phrase “last pleading directed to the issue” sets the event that starts it, and “no later than” makes the fourteenth day a ceiling with no floor beneath it.

In the simplest case the pleadings are a complaint and an answer. The answer is then the last pleading directed to every issue, so the 14 days run from its service.¹⁴ The clock follows the pleadings because the jury right attaches to issues, and the pleadings are where the issues take shape. A clock that began with the complaint would start before anyone knew which facts the defendant disputes.

Because the rule sets only a last day, a demand may be served before the answer.¹⁵ A plaintiff can end the complaint with the demand, and a defendant can end the answer with it. That placement is also the safe one, since the period is short and a party who postpones the step may let it pass and lose the jury by omission.¹⁶ Early service never makes a demand untimely. Only waiting past the fourteenth day does.

CB Aviation, LLC v. Hawker Beechcraft Corp. supplies a clean count. The defendant there filed its answer on April 16, 2010, and filed a demand for trial by jury three days later, on April 19. The court held the demand timely under Rule 38(b).¹⁷ Fourteen days from April 16 ends on April 30, so the demand left eleven days to spare. The opinion measures from the day the answer was filed, while the rule counts from the day the last pleading is served. The difference could matter on a close date but cannot change the result on these dates.

A jury right existed in both CB Aviation and the lender's case, so the outcomes differ because of the count of days from service of the answer: three in one, thirty in the other. A late demand is not necessarily the end. Rule 39(b) lets the judge order a jury trial anyway on any issue for which a jury might have been demanded, and it sets no standard. Some courts grant such motions grudgingly, while others weigh how late the motion comes and whether the other parties would be prejudiced.¹⁹ Relief from waiver has its own section below. For now a party should treat the fourteenth day as final.

Two limits on this simple count lead into the next subsections. The count assumes the answer is the last pleading directed to every issue, and a counterclaim that requires a reply adds pleadings and, with them, new windows for the issues they raise. Timely service also does not complete a proper demand, because the party must file it in accordance with Rule 5(d).²⁰ Later pleadings come first, and the filing follows.

New Issues in Later Pleadings

The 14 days run from “the last pleading directed to the issue,” so one lawsuit can carry several deadlines at once.²² When the only pleadings are a complaint and an answer, the answer is the last pleading directed to every issue. Each later pleading can change that count, because a pleading that raises or answers an issue becomes the last pleading directed to it. Counterclaims with their replies, and amended or supplemental pleadings, are the situations in which that happens.

The counterclaim comes first. A counterclaim in the answer calls for a reply, so the pleadings now extend past the answer, and the reply's effect on the deadline depends on what the counterclaim put in dispute. If the counterclaim raises the same issues as the answer, a demand made within 14 days after the reply is effective as to those issues.²³ If the counterclaim and reply raise new issues not contained in the complaint and answer, a demand served more than 14 days after the answer but within 14 days after the reply preserves the jury right only for the issues the counterclaim and reply raise. The issues in the complaint and answer remain waived.²⁴

Both results rest on one idea about what a deadline can fairly demand. The jury right attaches issue by issue, and no party can be held to a deadline for an issue that did not yet exist when the clock began. A counterclaim on a new subject creates issues no one could see in the complaint and answer, so the period for them starts when the reply completes the pleadings on them. The same idea limits how far the new window reaches. The complaint and answer issues were fully framed once the answer was served, and their 14 days passed. Where the counterclaim covers the same issues the answer raised, the reply is itself the last pleading directed to them, so the rule's own measuring point moves forward.

The two scenes run through the same sequence of pleadings, and the fact that decides each is whether the counterclaim's issues were already framed by the answer. The retailer's demand reaches the defect questions because the reply extends the time on every issue the counterclaim shares with the answer. The franchisee's demand reaches only the deposit issues, because nothing in the complaint and answer overlapped with them. On an exam stem that supplies dates for the answer, the reply, and the demand, work issue by issue and ask for each one which pleading was the last directed to it.

Amended and supplemental pleadings follow the same logic. A pleading that raises a new issue is the last pleading directed to that issue, so a demand served within 14 days after it is timely as to that issue.²⁵ A general demand already on file needs no repetition, because it secures a jury on every issue triable of right.²⁶

An amendment that only changes the theory of the case or the relief requested raises no new issue, so it does not revive a jury right waived by failing to demand a jury on the original pleading.²⁷ Recasting an injunction suit as a suit for damages on the same transaction is the standard example. Claims for injunction were historically equitable and carry no jury right, while actions for money damages were legal and do.²⁸ The temptation is to treat the move from one to the other as creating a jury issue. The issue, however, is the dispute over the facts, and the original pleadings had already put those facts in dispute, so a change of label adds nothing.

Every demand described here must also be filed in accordance with Rule 5(d). A timely service that opens a new window therefore leaves one step incomplete, and the next subsection takes up that filing.²⁹

Filing the Demand

Rule 38(b) attaches a second duty to the first: a party who wants a jury must also file the demand in accordance with Rule 5(d).³¹ Rule 38(b)(2) states the requirement by reference to Rule 5(d), the rule that governs how filing is done. Filing is its own step with its own consequence. The demand reaches the other parties through service and the court through filing, and the rule treats neither act as a substitute for the other.

Rule 38(d) supplies the consequence: “A party waives a jury trial unless its demand is properly served and filed.”³² The conjunction carries the doctrine. Service completes one half of a proper demand and filing completes the other, so waiver follows unless both are done. An opponent's actual knowledge of a demand therefore cannot make up for a missing filing.³³

An exam stem that reports a lawyer mailing a timely written jury demand to opposing counsel invites the conclusion that the jury was claimed. The right response asks whether the demand was also filed.

The two scenes share the same timing, the same writing, and the same service on the other side. They differ only in the filing, which is why timeliness does not rescue the landlord. A party in the landlord's position still has one option. Rule 39(b) allows the judge to order a jury trial anyway on any issue for which a jury might have been demanded, but the rule sets no standard for that discretion, and some courts grant such motions grudgingly.³⁴ Relief from waiver has its own section below, and the safe course is to complete both steps on time and never need it.

That is why the advice to place the demand in the complaint or the answer carries such weight. A party serves and files its pleadings in the ordinary course, so a demand written into a pleading is served and filed by the same acts, and nothing remains to be remembered afterward.³⁵ A demand prepared as a separate paper creates two tasks, and a party who completes one and forgets the other has waived the jury. Once service and filing are both done, the remaining question is how much of the case the demand reaches.