Scope of the Demand

Rule 38(c) answers how much of a case a jury demand reaches, and the answer turns on whether the party named any issues. A party may specify in its demand the issues it wants tried by a jury; if it specifies none, the demand counts as one for jury trial on all the issues so triable. If the party demands a jury on only some issues, any other party may, within 14 days after being served with the demand or within a shorter time the court orders, serve a demand on any other or all of the factual issues triable by jury.¹ The jury right attaches issue by issue, as the earlier sections showed, and a demand claims it the same way. The subsections below take the default rule first, then the limited demand and the response window it opens, and last the claims that a plaintiff's demand does not reach.

General Demands

A complaint that closes with a line demanding trial by jury, and names no issues, raises an obvious question: what does that line cover? Under Rule 38(c), it covers all the issues so triable.² The words so triable set the limit. A general demand reaches every issue that carries a jury right and no issue that lacks one, so demanding a jury on "all issues" moves no equitable issue before the jury.

The default protects the party who makes the demand. Someone who wants a jury need not predict which issues the pleadings will eventually raise, and cannot lose a jury issue by leaving it off a list.

It protects the other parties too. Once one party makes a general demand, the jury rights of the other parties on all the issues triable by jury are secured without any further action by them.³ A defendant who knows the plaintiff has demanded a jury on everything has no reason to prepare for a bench trial or to serve a duplicate demand. The rule that a proper demand cannot be withdrawn without the consent of all the parties, taken up in a later section, protects that reliance.⁴

A bar-exam stem that features a defendant who never served a demand tempts you to conclude the defendant waived a jury. Check first whether any other party made a general demand. If one did, it has already done the defendant's work.

Limited Demands

A party that wants a narrower jury can say so by specifying in its demand the issues it wants tried to a jury. That choice does not bind the other parties, but it starts a clock for them. If the party has demanded a jury on only some issues, any other party may serve a demand on any other or all of the factual issues triable by jury, but only within 14 days after being served with the limited demand, or within a shorter time the court orders.⁶ A party that lets the window close has waived a jury on the issues left out, because the other parties must demand a jury on those issues in time or their rights are deemed waived.⁷ The response is a demand like any other: the responding party must serve it in writing on the other parties and file it in accordance with Rule 5(d).⁸

The window exists because a limited demand sends a signal. It tells the other parties that the issues left out are headed to the judge, and they plan their witnesses, exhibits, and trial schedule around that signal. The rule gives them one short, defined chance to say otherwise. The chance opens when the limited demand is served, since that is when they learn what was left out, and the court may shorten it to fit a tight schedule.

The cost of missing the window shows up best when two cases differ only in timing.

Both scenes involve a limited demand and a defendant who wants more of the case before a jury. Only the timing of the response differs. When an exam stem gives dates for the answer, the limited demand, and the response, run the clock from service of the limited demand, because that is the event Rule 38(c) uses to start the response period.

Third-Party and Unrelated Claims

A general demand does not sweep in every issue that anyone later adds to the lawsuit. A plaintiff's jury demand does not extend to issues raised between the defendant and any third-party defendant, or to issues in unrelated counterclaims or crossclaims.¹⁰ A third-party defendant is someone the defendant brings into the case because that person may be liable to the defendant for what the plaintiff claims, and a crossclaim is a claim against a co-party. In each setting the dispute involves parties or subjects the plaintiff's demand never addressed.

The reason lies in what the plaintiff's demand speaks to. It speaks to the dispute the complaint frames. A third-party complaint creates a new dispute between the defendant and someone outside the plaintiff's demand, and an unrelated counterclaim or crossclaim opens a subject that nobody had in mind when the plaintiff served it. The demand therefore gives no assurance about those issues. The word unrelated matters: a counterclaim that turns on the same issues as the demanding party's own claim does not fall within this exception.

A party who wants a jury on the excluded issues must demand one itself, and the ordinary deadline governs: service of a written demand no later than 14 days after the last pleading directed to those issues is served.¹¹ The earlier section on new issues in later pleadings applied the same logic. The plaintiff's demand secures a jury for the dispute the plaintiff framed, and a dispute that someone else adds carries its own deadline.

In a case with several parties, work issue by issue: who stands on each side of the issue, and did the demanding party's demand ever speak to it? A plaintiff's general demand settles the plaintiff's jury issues with the defendant, while the defendant's issues with other parties need demands of their own.