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4. Has the retailer properly demanded a jury trial?
The architect timely moved to dismiss the action for failure to state a claim; he did not file an answer. Twenty days after being served with the motion, the retailer amended the complaint to add a defamation claim based on the architect's recent statements about the retailer in a local newspaper. In the amended complaint, the retailer demanded a jury trial on both claims.
A retailer brought a federal diversity action against an architect, alleging fraudulent misrepresentations in the architect's design of the retailer's store. The complaint did not include a jury demand.
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Federal Rule of Civil Procedure (FRCP) 38(a) provides that the right of a trial by jury as declared in the Seventh Amendment is preserved for the parties.
FRCP 38(b) requires that a party who wishes for a jury trial on a particular issue file a demand within 14 days after the service of the last pleading directed to that issue.
FRCP 38(c) states, «In its demand, a party may specify the issues that it wishes to have tried by a jury; otherwise, it is considered to have demanded a jury trial on all the issues so triable. If the party has demanded a jury trial on only some issues, any other party may—within 14 days after being served with the demand or within a shorter time ordered by the court—serve a demand for a jury trial on any other or all factual issues triable by jury.»
D is correct. The issue here is, did the retailer properly demand a jury trial pursuant to the FRCP? A party who wishes to have a jury trial must file a demand with the court for a jury trial. The demand must be made within 14 days after the last pleading related to the issue is served or else the demand is waived. In this case, the architect did not file an answer to the first or second complaint. Therefore, the last pleading related to the issues the retailer is requesting a jury for has not yet been served. The retailer did not miss the 14-day deadline and may still demand a jury.
A is incorrect. It does not matter that the demand came 14 days after the motion to dismiss because the architect did not answer the complaint. Therefore, the last pleading on the issue has not been served.
B is incorrect. The 14-day count does not begin until after the architect answers the amended complaint demanding a jury, not when the original complaint was served.
C is incorrect. This answer is only partially correct. The demand is still valid for both claims because there was no answer filed for the first claim of fraudulent misrepresentation. If the architect had answered one of the complaints earlier, the 14-day window to demand a jury trial on that issue would have begun then. However, because the architect only made a motion to dismiss and not an answer to the complaints, the retailer is still timely in making a jury demand.