Jury Demands After Removal

Jury Demands After Removal

Rule 38(b) tells a party who wants a jury to serve a written demand on the other parties no later than 14 days after the last pleading directed to the issue is served, and to file the demand in accordance with Rule 5(d).¹ That timetable assumes a case that began in federal court, where every pleading was written with Rule 38 in view. A removed case, one a defendant has moved from state court into federal court, has a different history. Its pleadings were drafted and served under state procedure, which may ask for a jury in different terms, at a different time, or not at all. Federal Rule 81(c)(3) tells the federal court how to treat that history.

Applied mechanically, Rule 38(b) would turn removal into a trap. The plaintiff who files in state court chooses that forum, and the defendant who removes overrides the choice, so for the plaintiff the transfer is an opponent's act. If the case were treated as though it had just begun, a party who followed state procedure exactly could lose the jury because of the other side's choice of forum. Rule 81(c)(3) closes the trap in three parts, and each has its own subsection below: a demand already made in state court, a state system that required no demand, and a case in which a demand is still needed and the time to make it runs from the removal.

All three parts concern how the jury is claimed, not whether a jury right exists. Whether an issue carries a jury right in federal court is still decided issue by issue under the Seventh Amendment and federal statutes, so a state-court demand directed at an equitable issue gives the party no jury on that issue after removal.

State-Court Demands Survive Removal

A timely express jury demand made in state court secures the jury right after removal, and the party who made it need not demand again in federal court.² That party did what the procedure governing the case required at the time, and the demand did the work a demand exists to do: it told the court and the other parties that a jury would hear the issues. A second demand would add no information. It would also put the jury at risk for a reason outside the demanding party's control, because that party cannot prevent the other side from removing, and a duty to renew would make the jury depend on noticing the transfer and meeting a federal deadline the party had no reason to expect.

The word express limits this protection. It covers a party who actually demanded a jury in state court, in the form and at the time state procedure called for. A removed case in which no one demanded has no state demand to rely on, and the jury's survival there turns on the two rules that follow: whether the state required a demand at all and, if it did, whether a federal demand was made in time.

Where State Law Requires No Demand

A removed case in which no one made a jury demand is not yet a waiver case. The answer turns on whether state procedure required an express demand, because a party need not make a demand after removal if the state court's procedure did not require one to secure trial by jury.⁴ Some state systems treat the jury as available unless a party waives it, so a party in such a state has nothing to do to preserve it. That party broke no rule, since none existed, and a federal demand requirement applied after removal would manufacture a duty out of the opponent's decision to change forums. The ordinary count of time would make the result harsher still: Rule 38(b) counts 14 days from the last pleading directed to the issue, and that pleading may have been served long before removal, so the jury could be lost on the day the case arrived.⁵

The federal court still needs to know what it is scheduling. It may order the parties to specify the issues triable by a jury so that it can set and evaluate its calendar.⁶ Federal practice treats a case as one for the bench unless someone has claimed a jury,⁷ and a judge who receives a removed case from a jury-default state cannot tell from the file which issues are meant for a jury. A jury trial calls for different planning than a bench trial, so the judge needs that information before setting a date. The order supplies it without changing who is entitled to a jury. A party who answers as directed keeps the jury on the issues it identifies, and a party who ignores the order gives the court no sign that any issue is meant for a jury.

Demand Windows After Removal

A demand is still needed when state procedure required an express demand and no party made one before removal. The ordinary count cannot govern that case. Rule 38(b)(1) measures time from the last pleading directed to the issue, and in a removed case that pleading may have been served in state court months earlier, so a clock started there would often have expired before the federal court had the case.⁹ Rule 81(c)(3) therefore starts a fresh period at removal. The removing party has 14 days after filing the notice of removal to serve a demand, and every other party has 14 days after being served with that notice. These windows apply when all necessary pleadings had been served by the time of removal; a case removed before the pleadings close can still be measured by the ordinary count from the last pleading directed to the issue.

The two starting points track what each party knows. The removing party picks the day of removal and knows of it when it files the notice, so its 14 days begin then. The other parties cannot know the case has moved until the notice reaches them, and a clock that ran before they had heard of the removal would penalize them for something they could not have known. The demand itself must still be a proper one: written, served on the other parties, and filed in accordance with Rule 5(d).¹⁰ A party who misses its window incurs the waiver that Rule 38(d) attaches to any failure to demand in time,¹¹ and the only relief left is the court's Rule 39(b) discretion, covered earlier in this chapter.

The lender's demand would protect the borrower because a demand by one party secures every other party's jury right on the issues it covers, without further action by them, and it cannot be withdrawn without the consent of all the parties.¹² The two versions share the same state rule, the same missing pre-removal demand, and the same removal date. They differ only in whether the borrower served and filed within 14 days after filing the notice.

Each of the three rules answers a different starting situation, so a removed-case problem is best run as a sequence that stops as soon as one step supplies the answer.