(a) By Jury. When trial by jury has been demanded as provided in Rule 38, the action shall be designated upon the docket as a jury action. In the District Court, the action shall be designated upon the docket as a jury action in accordance with the statutory provisions governing trials by jury in the District Court.The trial of all issues so demanded shall be by jury, unless (1) the parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury as to some or all of the issues or (2) the court upon motion or of its own initiative finds that a right of trial by jury of some or all of those issues does not exist under the constitution or statutes of this commonwealth.

(b) By the Court. Issues not demanded for trial by jury as provided in Rule 38, shall be tried by the court; but notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by jury of any or all issues.

(c) Framing Jury Issues. In all actions not triable of right by a jury, the court, except where otherwise provided by law, may upon motion frame issues of fact to be tried by a jury.

Amended May 3, 1996, effective July 1, 1996; November 28, 2007, effective March 1, 2008.

Reporter's Notes

(2008) A new second sentence has been added to Rule 39(a) to deal with statutory requirements in the District Court regarding designating an action on the docket as a jury action. The statewide one-trial statute provides in G.L. c. 218, § 19B(a) as follows: In any case in which a party has filed a timely demand for a jury trial, the action shall not be designated upon the docket as a jury action until after the completion of a pretrial conference, a hearing on the results of the conference and until the disposition of any pretrial discovery motion and compliance with any order of the court pursuant to the motions. Rule 39(d), entitled "District Court," has been deleted, since jury trials are available under the statewide one-trial system in District Court civil actions. Thus, Rule 39, as amended by the addition of the above sentence to Rule 39(a), will be applicable in the District Court.

(1996) The 1996 amendment to Rule 39 adds a new section (d), 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 39 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 39 is substantially the same as Federal Rule 39.

Rule 39(a) in essence states that even though a demand for a jury trial has been made, the parties or their attorneys may subsequently, by stipulation, consent to trial without a jury. While Rule 39(a) does not literally so indicate, such stipulation may be made with respect to fewer than all of the issues. Further, the trial judge may determine that a right to trial by jury of some or all of the issues does not exist under the constitution or statutes of the Commonwealth.

Rule 39(b) authorizes the trial judge, in his discretion, upon motion, to order a jury trial on any or all of the issues despite the fact that a timely demand for a jury trial was not made under Rule 38(b). Some courts have taken the position that before relieving a party from waiver of a jury trial under Rule 38(d) the court should require a showing of highly exceptional circumstances, and that mere inadvertence of counsel in failing to make a timely demand for a jury trial does not justify the judge's exercise of discretion. Lemelson v. Gerber Products Co., 39 F.R.D. 336, 337 (E.D.N.Y.1966); see also Transocean Air Lines v. Pan American World Airways, Inc., 36 F.R.D. 43, 45 (S.D.N.Y.1964). Other courts have held the trial judge's discretion to order a jury trial largely unlimited. Britt v. Knight Publishing Co., 42 F.R.D. 593, 595 (D.S.C.1967). This latter position more closely resembles prior Massachusetts practice and is the proper interpretation of Rule 39(b). See former G.L. c. 231, § 60; Gechijian v. Richmond Ins. Co., 305 Mass. 132 (1940).

Rule 39(c) differs substantially from Federal Rule 39(c), which authorizes the court, in all actions not triable of right by a jury, upon motion or of its own initiative to try any issue with an advisory jury. Findings of such a jury are only advisory in nature unless both parties have consented that the verdict be binding.

Rule 39(c) does not adopt the advisory jury, but retains the prior practice of framing issues of fact to be tried by a jury. See former G.L. c. 214, §§ 34, 36. Because Rule 39(c) by definition refers only to actions "not triable of right by a jury," it will apply principally in actions where the plaintiff seeks only equitable relief. Therefore the reference to framing issues of fact should be taken to incorporate prior "equity" practice with respect to such issues. Under prior law, the framing of issues of fact was not a matter of right. See Marcoux v. Charroux, 329 Mass. 687 , 688 (1953). If, however, issues were framed for a jury the jury was not merely advisory. Whether the original proceeding was in equity, Westfield Savings Bank v. Leahey, 291 Mass. 473 , 475 (1935), or in probate, Lambert v. Cheney, 221 Mass. 378 , 380 (1915), the jury's verdict bound both parties, subject to the court's common law supervisory powers, Crocker v. Crocker, 188 Mass. 16 , 20 (1905).