Withdrawing a Demand

Withdrawing a Demand

A party that has properly demanded a jury cannot take the demand back on its own. The second sentence of Rule 38(d) provides: "A proper demand may be withdrawn only if the parties consent."¹ The first sentence of the rule penalizes the party who never demands a jury; this one binds the party who did. Once a demand has been properly served and filed, it no longer lies within the sole control of the party who made it, and the consent required is that of all the parties.² A plaintiff who demanded a jury and now would rather face a judge cannot cancel the jury by changing its mind.

Reliance explains the rule. A general demand by one party secures every other party's jury right on all issues triable by jury, without any further step by them.³ A party who reads that demand therefore has no reason to serve one of its own, and its time for doing so is short: a demand must be served no later than 14 days after the last pleading directed to the issue is served.⁴ Suppose the demanding party could withdraw alone after those 14 days had run. The other parties would lose their jury at the moment the rule no longer let them ask for one, having done nothing more than trust a paper on file. Requiring consent closes that gap, because the demand can disappear only if the parties who may have relied on it agree to give up what it secured.⁵

The protection reaches only as far as the demand does. A litigant who demands a jury on specified issues tells the others that the remaining issues are headed to the judge, and the others must file a timely demand on those issues or their rights are waived.⁶ A plaintiff's demand likewise does not extend to issues between the defendant and third-party defendants, or to unrelated counterclaims and crossclaims, so a party with issues of that kind cannot rest on the plaintiff's demand.⁷ Nor does any demand reach an issue that carries no jury right. Money damages for tort or breach of contract are the familiar legal claims, while injunctions and specific performance historically belong to equity.⁸ The rule shields reliance only where the demand covers the issue.

Both scenes begin with a proper demand and a party who no longer wants it. What separates them is whether a party who relied on the demand objects. In the first scene the reliance is concrete: the publisher let its own period lapse because the photographer's demand was already on file. In the second scene no one stands to lose a jury it expected to have, so the rule has nothing to protect. Once an effective withdrawal leaves no demand in place, the waiver provision applies and the court tries the case.⁹ The rule cuts the other way too. A party who never demanded a jury and would now prefer a judge cannot undo a demand that another party properly made. Consent of the parties controls, and no single party's preference does.

On an exam, expect a stem in which a party served and filed a jury demand and later announces a preference for a bench trial. Ask one question: did the other parties consent? If one did not, the jury stays, and the objection is hard to overcome because a party who relied on the demand will usually have no time left to serve its own.