(a) Right preserved. The right of trial by jury as declared by the Constitution of the United States or by the Constitution of the State of North Dakota - or as provided by a statute of the United States or of the State of North Dakota - is preserved to the parties inviolate.
Rule 38.Right to a Jury Trial; Demand
Group VI: Trials · Last amended March 1, 2011 · Last verified July 15, 2026
In one sentenceRule 38 preserves the constitutional right to a jury trial, requires a written demand served within 14 days after the last pleading on the triable issue, and sets a six-person jury as the default unless a party timely demands nine.
Full Text of Rule 38
(b) Demand. On any issue triable of right by a jury, a party may demand a jury trial by:
(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) Size of jury. If trial by jury is demanded, the jury must consist of six qualified jurors unless a jury of nine is specifically demanded within the time required for making a jury trial demand under Rule 38(b).
(d) Specifying Issues. 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 a jury.
(e) Waiver; Withdrawal. A party waives a jury trial unless its demand is properly served and filed. A party may not revoke a waiver of a jury trial by amending a pleading that asserts only a claim or defense arising out of the conduct, transaction, or occurrence described in the original pleading. A proper demand may be withdrawn only if the parties consent.
Explanatory Note
Rule 38 was amended, effective January 1, 1978; January 1, 1988; March 1, 1990; March 1, 1998; March 1, 2007; March 1, 2011.
Rule 38 applies to a demand made under N.D.C.C. § 30.1-15-04 for a jury trial in a formal testacy proceeding.
Rule 38 was amended, effective March 1, 2011, in response to the December 1, 2007, revision of the Federal Rules of Civil Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Paragraph (b)(1) was amended, effective March 1, 2011, to increase the time to demand a jury trial from 10 to 14 days.
Subdivision (d) was amended, effective March 1, 2011, to increase the time for another party to serve a demand for a jury trial on other factual issues from 10 to 14 days.
Plain-English Summary
Rule 38(a) states the constitutional baseline: the right to a jury trial, wherever the federal or North Dakota constitutions or a federal or state statute grants it, stays inviolate. But the right has to be claimed, not assumed. Rule 38(b) requires a party to demand a jury trial in writing — which can be part of a pleading — served on the other parties no later than 14 days after the last pleading directed to the triable issue, and then filed under Rule 5(d).
Rule 38(c) sets the default jury at six qualified jurors, but a party can demand a jury of nine instead, so long as that demand is made within the same time window that governs the jury demand itself. Rule 38(d) lets the demanding party narrow the demand to specific issues; leaving it general means the party is treated as demanding a jury on every triable issue. If one party demands a jury on only some issues, any other party can, within 14 days of being served with that demand — or a shorter time the court sets — demand a jury on any other triable factual issues left out.
The consequence for missing the deadline is unforgiving: Rule 38(e) treats a party as having waived a jury trial unless the demand is both properly served and filed. Amending a pleading does not revive a waived jury right, at least where the amendment asserts only a claim or defense arising from the same conduct, transaction, or occurrence already in the case. And once a proper demand is on file, it can be withdrawn only if the parties consent — a jury trial demand is not something one side can cancel unilaterally once the other side is relying on it.
Frequently Asked Questions
How do I demand a jury trial in a North Dakota civil case?
Rule 38(b) requires a written demand, which may be included in a pleading, served on the other parties no later than 14 days after the last pleading directed to the triable issue, and then filed in accordance with Rule 5(d).
What happens if I do not demand a jury trial in time?
Rule 38(e) treats the failure to properly serve and file a demand as a waiver of the jury trial right on that issue. Amending a pleading that raises only claims from the same conduct or occurrence already at issue does not revive a waived demand.
How many jurors sit on a North Dakota civil jury?
Rule 38(c) sets six qualified jurors as the default. A party can instead demand a jury of nine, but only if that demand is made within the same deadline that applies to demanding a jury trial in the first place.
If I only want a jury on some issues, does that limit the other side too?
Not automatically. Rule 38(d) lets another party, within 14 days of being served with a demand limited to certain issues (or a shorter court-set time), serve its own demand for a jury trial on any other factual issues that are triable by a jury.
Can I withdraw my jury trial demand once I've filed it?
Only with the other parties' consent. Rule 38(e) states that a proper demand may be withdrawn only if the parties consent, so a unilateral withdrawal is not available once the demand is on file.
Source & verification. Rule text and the Explanatory Note are
reproduced verbatim from the North Dakota Rules of Civil Procedure, adopted by the
Supreme Court of North Dakota. Last verified July 15, 2026.
· Official source
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