Jury Demand within Complaint is Insufficient in Nevada

Jury Demand within Complaint is Insufficient in Nevada

Jake Lee v. Soon Yi Lee, 2019 WL 851994 (Nev. App. Feb. 19, 2019) (unpublished).

For most civil cases in Nevada, the parties have the option of having either a jury trial or bench trial. There are strategic reasons for why a plaintiff or defendant might choose a jury trial over a bench trial, and vice versa. For example, plaintiffs in personal injury cases will almost always demand a jury because jurors are more likely to award a larger sum in damages than a judge in a bench trial. Conversely, in some highly technical civil cases, a plaintiff may prefer a judge to render a decision rather than a jury, where the plaintiff’s focus or desired outcome is not necessarily on damages.

It has long been the practice of many plaintiff attorneys to demand a jury trial within a complaint. However, in a recent Nevada Court of Appeals opinion, the court held this is improper. In Jake Lee v. Soon Yi Lee, the plaintiffs Jake Lee and Sun Hoi Lee sued their former employee Soon Yi Lee[1] for defamation. Soon Yi Lee countersued for assault, battery, sexual harassment, and intentional infliction of emotional distress. In Sun Hoi and Jake Lee’s complaint, they demanded, “all issues in this case be tried by a jury.”

However, the court issued an order scheduling a bench trial. Plaintiffs protested and demanded the trial be reset as a jury trial. The district court refused, asserting plaintiffs failed to properly demand a jury trial according to Rule 38 of the Nevada Rules of Civil Procedure (NRCP).  Rule 38(b) states: “Demand. Any party may demand a trial by jury of any issue triable of right by a jury by serving as required by Rule 5(b) upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than the time of the entry of the order first setting the case for trial.”

Plaintiffs argued they had complied with Rule 38(b) because a complaint is a demand in writing that is served on the defendants long before a court enters an order setting trial. The district court rejected plaintiff’s position, finding their argument ignores the first part of Rule 38(b) which requires a party to make a jury demand “at any time after the commencement of the action…” Rule 3 defines when an action is commenced in Nevada: “A civil action is commenced by filing a complaint with the court.” Thus, the district court found plaintiffs demanded a jury while commencing the action, not after it was commenced; therefore, plaintiffs’ demand was improper.

On appeal, the Nevada Court of Appeals sided with the district court, finding the language of NRCP 38(b) unambiguous and explaining, “When a rule is clear on its face, we will not look beyond the rule’s plain language.” The appellate court then held:

Here, the district court denied Jake’s motion to enforce his demand, finding that the sentence in his complaint in which he demanded a jury trial failed to comply with NRCP 38(b). The court found that because Jake failed to serve a demand after commencement of the action and before the first order setting the case for trial, he waived his right to a jury trial under NRCP 38(d)[2]. We conclude that the district court did not err in its interpretation of the plain language of NRCP 38.

Prior to their appeal, the plaintiffs raised a second argument with the district court in hopes of still obtaining a jury trial. Plaintiffs argued the district court could still allow a jury trial based on NRCP 39(b): “[N]otwithstanding 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 a jury of any or all issues.” The plaintiffs requested the district court to use its discretion and order a jury trial; however, the district court denied the request for various reasons, including the fact that the plaintiffs “checked a box indicating that they had not filed a demand for a jury trial.” On appeal, plaintiffs argued the district court abused its discretion in denying their request for a jury under Rule 39(b). Yet, the appellate court was unsympathetic and affirmed the district court’s decision.


Although Jake Lee v. Soon Yi Lee is an unpublished opinion; it is valuable to Nevada litigants for a few reasons. It puts plaintiff attorneys on notice their jury demands within a complaint will not always be recognized by the district courts. Defense attorneys who do not want a jury trial may strategically decide not to point out a plaintiff’s error in demanding a jury within a complaint until after the court has scheduled a bench trial.

In addition, Jake Lee v. Soon Yi Lee is a good reminder appellate courts prefer to affirm a district court’s discretionary decisions, including a court’s decision to deny a request for a jury trial under NRCP 39(b). Thus, an appellant has a high bar to overcome in convincing an appellate court that a district court abused its discretion. Furthermore, many Nevada Rules of Civil Procedure have an element of discretion built in, which grants a district judge wide latitude for ruling on various issues. Accordingly, it is an important litigation tool for attorneys to remain in good standing with the particular district judge their case is assigned to, so the judge is more inclined to use the court’s discretion in your client’s favor rather than against when something unorthodox happens during litigation.


[1] The two parties appear to be unrelated but share the same last name.

[2] NRCP 38(d) states in part: “(d) Waiver; Deposit of Jurors’ Fees. 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 the party of trial by jury.”

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