A Tale of Two Waivers: Waiver of the Jury Waiver Defense Under the Federal Rules of Civil Procedure

The thesis of this Article is that the Federal Rules of Civil Procedure, most specifically Rule 8(c), should be interpreted to require the jury waiver defense to be pled early on in the pretrial stage of litigation. The failure to plead the defense risks waiver. Part II of this Article expands upon the legal issues previously raised regarding the enforceability of a pre-dispute contractual jury waiver. Part III summarizes the basic rules regarding demanding a jury trial and defending against that demand under the Federal Rules of Civil Procedure.

Part IV presents and explains the novel argument regarding the early deadline for raising the jury waiver defense under the Federal Rules, and establishes legal principles for determining whether the assertion of an untimely jury waiver defense waives the defense. Part V makes some final remarks.