2013 US Code
Title 28 - Judiciary and Judicial Procedure
Appendix (rules 1 - 1103)
FEDERAL RULES OF CIVIL PROCEDURE (rules 1 - G)
TITLE VI. TRIALS (rules 38 - 53)
Rule 38 - Right to a Jury Trial; Demand
Publication Title | United States Code, 2012 Edition, Supplement 1, Title 28 - JUDICIARY AND JUDICIAL PROCEDURE |
Category | Bills and Statutes |
Collection | United States Code |
SuDoc Class Number | Y 1.2/5: |
Contained Within | Title 28 - JUDICIARY AND JUDICIAL PROCEDURE TITLE 28 - APPENDIX FEDERAL RULES OF CIVIL PROCEDURE TITLE VI. TRIALS Rule 38 - Right to a Jury Trial; Demand |
Contains | rule 38 |
Date | 2013 |
Laws in Effect as of Date | January 16, 2014 |
Positive Law | Yes |
Disposition | standard |
Source Credit | As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009. |
Statutes at Large Reference | 48 Stat. 1064 |
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(a)
(b)
(1) serving 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
(2) filing the demand in accordance with Rule 5(d).
(c)
(d)
(e)
(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.)
NOTES OF ADVISORY COMMITTEE ON RULES—1937This 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, U.S.C., Title 28, §723c [see 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; N.M.Stat.Ann. (Courtright, 1929) §105–814; N.Y.C.P.A. (1937) §426, subdivision 5 (applying to New York, Bronx, Richmond, Kings, and Queens Counties); R.I.Pub.Laws (1929), ch. 1327, amending R.I.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 U.S.C., Title 28, §770 [now 1873] (Trial of issues of fact; by jury; exceptions), and similar statutes, is unaffected by this rule. This rule modifies U.S.C., Title 28, [former] §773 (Trial of issues of fact; by court).
NOTES OF ADVISORY COMMITTEE ON RULES—1966 AMENDMENTSee Note to Rule 9(h), supra.
NOTES OF ADVISORY COMMITTEE ON RULES—1987 AMENDMENTThe amendments are technical. No substantive change is intended.
NOTES OF ADVISORY COMMITTEE ON RULES—1993 AMENDMENTLanguage 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.
COMMITTEE NOTES ON RULES—2007 AMENDMENTThe language of Rule 38 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.
COMMITTEE NOTES ON RULES—2009 AMENDMENTThe times set in the former rule at 10 days have been revised to 14 days. See the Note to Rule 6.
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