Relief From Waiver

Missing the jury-demand deadline waives the jury, but the waiver is not always final. A party who wants a jury must serve a written demand no later than 14 days after the last pleading directed to the issue is served,¹ and must file the demand in accordance with Rule 5(d).² A party who lets either step slip has not claimed the jury, and the issue goes to the judge. Rule 39(b) softens that result by letting the court order a jury trial despite the lapse. This unit covers how that power is framed, how courts differ in using it, and what happens to a waiver when a case is tried a second time.

Before asking for relief, a party should confirm that relief is needed. Once one party makes a general demand, the jury trial rights of the other parties on all issues thus triable are secured without any further action by them, and the demand cannot be withdrawn unless all the parties consent.³ The protection has limits: a plaintiff’s demand does not reach issues between the defendant and third-party defendants, or issues in unrelated counterclaims or crossclaims.⁴ The clock deserves the same early check. The 14 days run from the last pleading directed to the issue, so when the complaint and answer are the only pleadings the demand is due within 14 days after the answer is served, though it may be made before then. A counterclaim that requires a reply makes the count harder.⁵

The Rule 39(b) Safety Valve

Rule 39(b) allows the judge to order a jury trial anyway, on “any issue for which a jury might have been demanded,” but it says only that the judge “may” do so and sets no standard for the choice.⁶ The party in default therefore asks by motion, and the answer rests in the court’s discretion. A state counterpart has the same structure. Montana’s rule provides that, notwithstanding a failure to demand a jury “in an action in which such a demand might have been made of right,” the court on motion or of its own initiative may, on ten days’ notice to the parties, order a jury trial of “any or all issues.”⁷ Because the power is discretionary, a lawyer who discovers a missed deadline should treat the motion as a request to the court and should not assume it is a right.

The phrase “for which a jury might have been demanded” limits the power to issues that carried a jury right in the first place. Rule 39(b) repairs a missed step and creates no new right, so the issue-by-issue analysis from earlier in the chapter still comes first. Claims that were historically equitable, such as actions for an injunction or specific performance, carry no jury right, while actions for money damages in tort or contract are the familiar legal claims that do.⁸ A party suing only for an injunction has no right for a late motion to restore. A party suing for damages holds a right that a late motion may rescue.

The motion matters because the waiver would otherwise end the question. Rule 39(b) turns a missed deadline from a permanent loss into a request that the judge may grant, and the rule leaves that request without any prescribed test. How freely judges grant it is the subject of the next subsection.

Strict and Flexible Courts

With no standard to apply, the judge’s disposition largely decides the motion, and dispositions vary. Some courts are quite grudging in granting these motions. Others are more flexible, considering such factors as how late in the litigation the motion is made and whether granting it would prejudice the other parties.¹⁰

At the strict end, the court’s discretion to allow an untimely demand is exercised sparingly, and in most instances the party receives no relief from the waiver.¹¹ The logic is easy to reconstruct. A short, clear deadline does its work only if ordinary neglect carries a real price, and routine grants of late motions would let every party wait through discovery, size up the judge, and ask for a jury only if the outlook favored it.

At the flexible end, the court does not treat the waiver as the end of the matter. It looks at timing and harm. A motion made early, before the case has been prepared for a bench trial, costs the other parties little. A motion made on the eve of trial may force the court to reschedule and the opposing side to prepare again. The two approaches thus differ in their starting presumption. The strict approach makes the waiver nearly final and leaves the movant to justify an exception. The flexible approach asks whether lateness or prejudice supplies a reason to refuse.

A motion made on the eve of trial by a party who chose a bench trial deliberately shows both named factors working against the movant.

A motion made early by a party who simply overlooked the deadline presents the same two factors pointing the other way.

The two scenes differ in timing and in the effect on the other side, and a court exercising discretion would mention each difference in its reasons. A bar answer should therefore treat the motion as neither automatic nor hopeless. It should say that Rule 39(b) gives the judge discretion without a standard and that courts range from grudging to flexible, and then apply lateness and prejudice to the facts given. The safest course remains a timely demand, which the rule allows to be included in the complaint or the answer.¹²

Waiver After Appeal or New Trial

A waiver follows the case into later proceedings. A reversal on appeal or the grant of a new trial does not automatically revive the chance to demand a jury that a party let lapse.¹⁴ The reason is what a retrial repeats: the same dispute between the same parties, in which the party already had its chance to claim a jury. If every reversal reopened the question, a party could treat the first trial as a rehearsal before the judge and ask for a jury only after losing.

The question instead returns to the trial court’s discretion. The court decides whether to grant a jury trial to a party who originally waived the right, and it may consider the circumstances surrounding the waiver, the suitability of the case for jury determination, and the mode of trial most likely to expedite the suit. No single circumstance is likely to be determinative, and the court’s action is reversed only if an abuse of discretion can be demonstrated.¹⁵ These considerations look ahead to how the retrial should be run, while the ordinary Rule 39(b) inquiry centers on lateness and prejudice.