(b) Demand. Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue. Such a demand may be endorsed upon a pleading of the demanding party. In an action transferred, retransferred, removed or appealed from a District Court or the Municipal Court of the City of Boston, a demand for a trial by jury by a party entitled of right thereto shall be made in accordance with the statute governing such transfer, retransfer, removal, or appeal; but if the statute makes no provision for such demand, he shall be deemed to have waived such right unless within 10 days after the entry of the action in the Superior Court he files such demand therein.
(c) Same: Specification of Issues. In his demand a party may specify the issues which he wishes so tried; otherwise he shall be deemed to have demanded trial by jury for all the issues so triable. If he has demanded trial by jury for only some of the issues, any other party within 10 days after service of the demand or such lesser time as the court may order, may serve a demand for trial by jury of any other or all of the issues of fact in the action.
(d) Waiver. The failure of a party to serve a demand as required by this rule and to file it as required by Rule 5(d) constitutes a waiver by him of trial by jury. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties.
Amended June 27, 1974, effective July 1, 1974; May 3, 1996, effective July 1, 1996; November 28, 2007, effective March 1, 2008.
(2008) Rule 38(e), entitled "District Court," has been deleted, now that jury trials are available in the District Court under the statewide one-trial system, applicable to civil actions commenced on or after August 31, 2004 (St. 2004, c. 252 ). Thus, the provisions of Rule 38 governing the right to jury trial, demand, specification, and waiver, are applicable in the District Court.
(1996) The 1996 amendment to Rule 38 adds a new section (e), making the rule inapplicable to District Court proceedings. This is consistent with the approach taken by the now-repealed District/Municipal Courts Rules of Civil Procedure. However, Rule 38 will apply in the District Court in those limited circumstances where trial by jury in civil cases is provided by statute. See, for example, G.L. c. 218, §§ 19A and 19B (civil jury trials in Worcester and Haverhill).
(1973) Rule 38 is substantially the same as Federal Rule 38 . Rule 38(a) substitutes Part 1, Article 15 of the Massachusetts Constitution for the "Seventh Amendment to the [United States] Constitution" and deletes the words "of the United States" after the word "statute". Rule 38(b) includes language taken substantially from Super.Ct. Rule 44 covering cases transferred, removed or appealed from a District Court. While Rule 2 merges law and equity into one form of action, Rule 38(b), by using the language "of any issue triable of right by jury," retains the principle that in an action seeking purely equitable relief, neither party has a constitutional right to a jury trial. See Parker v. Simpson, 180 Mass. 334 , 346 (1902). Thus, for purposes of determining such a right, differences between legal and equitable remedies are preserved. U.S. v. Malakie, 188 F.Supp. 592 , 593 (E.D.N.Y.1960).
The merger of law and equity under Rule 2 together with Rule 38(b) does alter prior Massachusetts practice in one respect. Formerly once a plaintiff commenced a proceeding in equity he was held to have waived any right which he might have to a jury trial despite the fact that his action involved primarily legal issues. See McAdams v. Milk, 332 Mass. 364 , 367 (1955) [plaintiff, in a bill to reach and apply, is not entitled, as a matter of right, to the framing of jury issues]. Gulesian v. Newton Trust Co., 302 Mass. 369 , 371 (1939) held that when a plaintiff "voluntarily went into equity he submitted himself to all the incidents of equity practice, including the hearing without jury of a counterclaim, even one based upon a purely legal cause of action." With the merger of law and equity, the distinction adumbrated in these decisions will no longer be viable. The United States Supreme Court has held that if a demand for a jury trial has been made in accordance with Federal Rule 38(b), and both legal and equitable issues are presented in a single case, any legal issues must be submitted to a jury (if one is demanded) before related equitable issues are decided by the judge. Beacon Theatres, Inc. v. Westover, 359 U.S. 500 (1959); Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962).
The demand requirement of Rule 38(b) is not substantially different from prior Massachusetts practice. The relevant Portion of former G.L. c. 231, § 60 allows a jury trial if ".. . a Party before issue joined, or within ten days after the time allowed for filing the answer or plea, or within ten days after answer or plea has by consent of the plaintiff or permission of the court been filed, or within such time after the parties are at issue as the court by general or special order directs, files a notice that he desires a jury trial...." (Emphasis supplied).
The italicized language made clear that the court might in its discretion extend the period for demanding a jury trial. See Gechijian v. Richmond Ins. Co., 305 Mass. 132 , 143 (1940). While no such language appears in Rule 38(b), the same result may be reached under Rule 39(b), which grants the court discretion, in cases where a jury could have been demanded under Rule 38, upon motion to order a jury trial of any or all issues.
No previous rule or statute in Massachusetts allowed a party in the Superior Court to specify issues which he wished jury tried. cf. G.L. c. 185, § 15 . Rule 38(c) does permit such limited jury demand. This in no way prejudices the opposing party, because he is entitled, within 10 days after service of the demand or such lesser time as the court may order, to serve a counter demand for jury trial of any or all the remaining issues of fact in the action. The first sentence of Rule 38(d) reaches the same result as prior Massachusetts practice. See Alpert v. Mercury Publishing Co., 272 Mass. 39 , 42 (1930).
The second sentence of Rule 38(d) alters prior practice. Under Rule 38(d) a demand for a trial by jury may not be withdrawn without the consent of the parties. Under former G.L. c. 231, § 60A, any party to the proceeding could waive a jury trial which had been claimed. This presented a possible trap. Suppose P demanded a jury trial within the time permitted by G.L. c. 231, § 60. Relying on P's demand, D did not make a similar demand. Subsequently, after the period set out in § 60, if P waived his jury trial claim, D could subsequently be granted a jury trial only at the court's discretion, not as a matter of right. See Gouzoulas v. F.W. Stock & Sons, 223 Mass. 537 , 538 (1916). The approach of Rule 38(d) eliminates this pitfall.