Other than in ANDA cases, most (but not all) patent cases these days involve a demand for jury trial. FRCP 38 sets a deadline for requesting a jury trial within 14 days after the last pleading directed to the issue is served:
On any issue triable of right by a jury, a party may demand a jury trial by . . . 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 . . . filing the demand . . . .
FRCP 38.
This rule includes a few interesting things, just from the text:
- It sets out the demand requirement by issue, not by action
- It says parties "may" include the jury demand in a pleading, not that they must
- A party gets 14 days after service of the "last pleading directed to the issue" to serve a jury demand
District of Delaware Local Rule 38.1 also covers this issue, and defines the acceptable language for a jury demand in a pleading:
If a party demands a jury trial by endorsing it on a pleading, as permitted by Fed. R. Civ. P. 38(b), a notation shall be placed in the caption of the pleading stating "Demand For Jury Trial" or the equivalent. This notation will serve as a sufficient demand under Fed. R. Civ. P. 38(b).
In my experience, parties who want to request a jury trial almost always do so in the complaint or answer, typically by including a notation in the caption plus a separate written jury demand in the pleading.
What If You Forget?
But what happens if a party just forgets to include their jury demand (a nightmare scenario), and doesn't remember within the 14-day time period? Or, what if a party decides not request a jury trial, but later changes their mind?
The Court explored a situation along those lines in a memorandum order yesterday in Kevin B. Sapp v. Industrial Action Services, LLC, C.A. No. 19-912-RGA (D. Del.).
The plaintiffs in that contract case omitted a jury demand in their initial pleading. After years of motions, pleadings, an appeal, and amended pleadings, the plaintiffs filed another amended complaint. Shortly after the defendants responded to the latest amended pleading, the plaintiff filed—for the first time—a jury demand.
The defendant moved to strike, arguing that the plaintiff had waived its right to a jury trial by that point under FRCP 38. The Court agreed:
Generally, when the "same conduct... constitute[s] the basis for any claim" between complaints . . . , the new pleading does not present a new issue under Rule 38. Instead, the new pleading must "change the 'basic issue' or the 'general area of dispute' in the case. . . . Further, "the presentation of a new theory does not constitute the presentation of a new issue on which a jury trial should be granted as of right under Rule 38(b)." . . . An "issue" under Rule 38(b) "means something more than the evidence offered and the legal theories pursued." . . . Here, Plaintiff's First Amended Petition alleges breach of contract . . . . The Second Amended Complaint alleges tortious interference with contractual relations, that is, that Reladyne interfered with the same contract. . . . . The Second Amended Complaint presents a new legal theory, not a new issue. . . . Per Walton and Lanza, these additions [to the amended pleading] "merely clarified the same general issues raised in the original complaint." . . . I find that the Second Amended Complaint does not present a new issue under Rule 38(b).
Kevin B. Sapp v. Industrial Action Services, LLC, C.A. No. 19-912-RGA, at 3-4 (D. Del. May 20, 2025).
It's tricky to understand the full back-and-forth of the amended pleadings here, but I think one safe takeaway is the basic idea that, just because the defendant answers an amended pleading does not mean that the plaintiff can necessarily then make a new jury demand.
Interestingly, the Court can also grant leave for a trial by jury after that demand has been waived, under FRCP 39. According to the opinion, forgetfulness is not a valid excuse under that rule:
Courts generally deny relief under Rule 39(b) when "the only basis for such relief advanced by the requesting party is the inadvertence or oversight of counsel." . . .
Id. at 5 (citation omitted). Here, the plaintiff argued it wasn't an oversight, they chose to wait. But the Court found that to be insufficient as well:
Plaintiffs assert that the failure to make an earlier jury demand was not through inadvertence or oversight. . . . . Plaintiffs argue that they were "effectively bound by the issue of whether they were contractually obligated to mediate their claims under the [purchase agreement], which needed resolution before proceeding" . . . , and therefore waited until the resolution of that issue before demanding a jury trial. I accept Plaintiffs' counsel's explanation. I do not think the explanation helps Plaintiffs. First, it is a concession that the failure to make a demand was an intentional choice. Second, anticipating that Defendants would move to compel arbitration of the disputes, a motion that Plaintiffs thought had no merit, in no way prevented, or even counseled against, including a jury trial demand in any of the four petitions/complaints Plaintiffs filed.
Id. at 5.
The Court went through the other factors of the five-factor test for whether the Court should grant such a request (of course there is a five factor test!), and ultimately denied it.
The main takeaway here, in my view, is that you don't get a second shot if you mess up the jury demand in the initial complaint and don't fix it within the time limit. Local counsel can rest easy knowing that all of their efforts to constantly remind co-counsel not to forget the jury demand in their initial pleadings were not spent in vain.
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