the right to a jury trial for jurisdictional issues

Citation: 6 Cardozo L. Rev. 149 1984-1985

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THE RIGHT TO A JURY TRIAL FORJURISDICTIONAL ISSUES

INTRODUCTION

Commentators have long debated the scope of the constitutionalright to a trial by jury in civil actions.' However, they have rarelyconsidered whether a jurisdictional issue in a case that is jury triableon the merits should also be triable by a jury.2 This question wasaddressed recently by the Appellate Division of the New York StateSupreme Court in Cerrato v. Thurcon Construction Corp. ,' which heldthat a jury trial was appropriate where an adverse judgment on thejurisdictional motion would permanently bar a new action.

Part I of this Note examines the Cerrato decision in light of theapplicable New York Civil Practice Law and Rules ("CPLR"). Itconcludes that the right to a jury trial for a jurisdictional motion de-pends on the nature of the issue in question, and not on whether anadverse judgment on the motion permanently bars a new action onthe merits. Part II explores the broader question of whether there isany constitutional guarantee of trial by jury for jurisdictional issues.It also draws relevant distinctions between federal and state courtsand the various types of jurisdiction. This Note argues that the con-stitutional right to trial by jury should be confined to the merits of thecase, and should not extend to preliminary jurisdictional issues. Fi-nally, Part III argues that the factors of judicial economy, juror com-petence, and juror prejudice militate against calling a jury to decidejurisdictional questions.

I See, e.g., Devitt, Should Jury Trial Be Required in Civil Cases? A Challenge to the

Seventh Amendment, 47 J. Air L. & Com. 495 (1982); Henderson, The Background of theSeventh Amendment, 80 Harv. L. Rev. 289 (1966); James, Right to Jury Trial in Civil Actions,72 Yale L.J. 655 (1963); Kane, Civil Jury Trial: The Case for Reasoned Iconoclasm, 28 Has-tings L.J. 1 (1976); Redish, Seventh Amendment Right to Jury Trial: A Study in the Irration-ality of Rational Decision Making, 70 Nw. U.L. Rev. 486 (1975); Wolfram, The ConstitutionalHistory of the Seventh Amendment, 57 Minn. L. Rev. 639 (1973).

2 For commentaries that have considered the issue, see, e.g., 5 J. Moore, J. Lucas, & J.

Wicker, Moore's Federal Practice 38.36, at 38-309 to 323 (1984) [hereinafter cited asMoore's]; Note, Trial by Jury of Preliminary Jurisdictional Facts in Federal Courts, 48 IowaL. Rev. 471 (1963); Annot., 170 A.L.R. 383 (1947).

3 92 A.D.2d 89, 459 N.Y.S.2d 765 (1983). For a brief discussion of the issue and theCerrato decision, see Fact Issue on Jurisdictional Motion: Triable By Jury?, N.Y. St. L. Dig.,No. 283, July 1983, at 1 [hereinafter cited as Fact Issue]; N.Y. Civ. Prac. R. 3211, commentary3211:48 (McKinney Supp. 1970-1984).

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I. CERRATO V. THURCON CONSTRUCTION CORP.

In Cerrato v. Thurcon Construction Corp. ,4 the court held, by a 3-to-2 margin, that a plaintiff has a right to a jury trial on an issue ofpersonal jurisdiction raised on a motion to dismiss, where a new ac-tion on the merits would be barred by the statute of limitations. NewYork Civil Practice Rule 3211 not only enables a party to raise a mo-tion to dismiss,' but it also authorizes immediate trial of a factualissue raised by the motion.' However, since rule 3211 is silent as tothe mode that the trial should take,7 the Cerrato court looked to thepractice commentary to CPLR 3211 for guidance, which states:

In allowing immediate trial of a fact issue arising on a 3211 mo-tion, CPLR 3211 (c) does not say whether the trial must be by jury.Here CPLR 2218 may be turned to for guidance, but it only directsjury trial if the issue is "triable of right" by jury, thus begging thequestion.

This question turns on three things:1. Whether the merits of the case itself would be triable of

right by jury;2. Whether jury has been demanded; and3. The nature of the motion whose fact issue is to be tried.

If no part of the action itself, such as where it is onein equity, would be triable by jury, no fact issue beingtried on any 3211 motion in the case need be tried by jury.

If the case is triable by jury, such as a law actionseeking money, and jury trial has been duly demanded orthe time in which to demand it is still open (see CPLR4102), item #2 on the above list is satisfied and #3 mustbe negotiated.

If the ground of the motion is such that resolution ofthe fact issue in favor of the movant will dismiss the case

4 92 A.D.2d 89, 459 N.Y.S.2d 765 (1983). In Cerrato, the plaintiff sued the defendant ona tort claim. The defendant's answer included the affirmative defense of lack of jurisdictionbased on improper service. There was a factual dispute as to whether the person served wasauthorized to accept service of process. At the time of defendant's answer, the statute of limi-tations on the tort claim expired. Subsequently, plaintiff demanded a jury trial on the validityof service question on the ground that a new action was time barred. Hence, plaintiff claimedthat the issue, while one of jurisdiction only, was as dispositive as an adverse judgment on themerits: If the claim on the merits deserved a jury trial, then this jurisdictional issue, which, ineffect, could decide the case, deserved a jury trial as well. The majority accepted this analysisand ordered a jury trial for the jurisdictional issue.

5 See N.Y. Civ. Prac. R. 3211 (McKinney 1970 & Supp. 1970-1984).6 N.Y. Civ. Prac. R. 3211(c) (McKinney Supp. 1970-1984) ("[tlhe court may ... order

immediate trial of the issues raised on the motion").7 "[The Rules] suppose that the mode of trial-court, jury, or referee-will be whatever is

appropriate, but they do not prescribe what is appropriate." Fact Issue, supra note 3, at 1.

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JURY TRIAL RIGHT

and preclude suit from being brought upon the causeagain in New York, a jury trial will be required if eitherside insists upon it. See CPLR 2218. Grounds that fallunder this category would be release, res judicata, pay-ment, statute of limitations, etc. If the grant of the mo-tion dismissing the case would not prevent suit from beingbrought again, jury trial of the factual issue is not re-quired. Examples of these grounds would be lack of juris-diction (personal, rem or subject matter), temporarydisability of a party, other action pending (CPLR3211[a][4]), failure to join a party, etc.

Even on these latter grounds, however, a situationcan arise in which jury trial should be granted. If it ap-pears that a dismissal for lack of personal jurisdiction, forexample, will take place at such time as would preventplaintiff from suing anew because of the statute of limita-tions, see C3211:41, the impact of the dismissal would bepermanently to oust the plaintiff from the New Yorkcourts and the fact issue on the jurisdictional motionshould therefore be tried by jury.'

Application of the practice commentary to Cerrato supports theright to a jury trial on the jurisdictional motion because (1) the actionwas jury triable on the merits;9 (2) a jury trial was demanded;"° and(3) the nature of the motion was such that a resolution in favor ofdefendant would permanently oust the plaintiff from the New Yorkcourts.11 Relying strongly on this analysis, the Cerrato court granteda jury trial on the jurisdictional motion.1 2

The decision, however, raises some complex questions. The Cer-rato dissent points out that the right to a jury trial of an issue raisedon motion is controlled by CPLR 2218,13 which grants a jury trialonly where the issue is "triable of right by jury."1 4 Whether an issueis triable of right by jury should be determined according to the sameanalysis that would be used to decide any jury trial question. 5 There-

8 N.Y. Civ. Prac. R. 3211, commentary 3211:48 (McKinney 1970).

9 Cerrato, 92 A.D.2d at 91, 459 N.Y.S.2d at 766.10 Id. at 90, 459 N.Y.S.2d at 766.

11 Id. at 91, 459 N.Y.S.2d at 766.12 Id. at 91-94, 459 N.Y.S.2d at 766-68.13 Id. at 96, 459 N.Y.S.2d at 769.14 N.Y. Civ. Prac. Law § 2218 (McKinney 1974). Section 2218 states in part: "The court

may order that an issue of fact raised on a motion shall be separately tried by the court or areferee. If the issue is triable of right by jury, the court shall give the parties an opportunity todemand a jury trial of such issue." This section applies to any motion, whereas Rule 321 1(c)relates only to a motion to dismiss. Id. at commentary 2218:1.

15 The 1938 New York State Constitution provides that "[t]rial by jury in all cases inwhich it has heretofore been guaranteed by constitutional provision shall remain inviolate for-

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fore, the practice commentary is mistaken in its assertion that CPLR

ever .... " N.Y. Const. art. I, § 2. Therefore, the constitutional guarantee of a jury trialexists only to the degree that such trials were constitutionally authorized prior to the 1938constitution. This authorization derives from New York's first constitution of 1777, which"guaranteed trial by jury in all cases in which it had 'heretofore been used.' " D. Siegel, Hand-book on New York Practice 487 (1978). Similar terminology was used for the last time in theconstitution of 1894. Id. Thus, there is a constitutional guarantee of jury trial for all casesthat were jury triable, at common law or by statute, prior to the constitution of 1894.

New York's jury trial statute, N.Y. Civ. Prac. Law § 4101 (McKinney 1963), embodiesthis constitutional right to jury trial and "enlarges upon [it] by listing types of actions in whichthe parties have a right to a jury trial, whether or not such a right is included in the constitu-tional guarantee." N.Y. Civ. Prac. Law § 4101, commentary (McKinney 1963). Section 4101provides:

In the following actions, the issues of fact shall be tried by a jury unless a jurytrial is waived or a reference is directed under section 4317, except that equitabledefenses and equitable counterclaims shall be tried by the court:

1. an action in which a party demands and sets forth facts which wouldpermit a judgment for a sum of money only;

2. an action of ejectment; for dower; for waste; for abatement of and dam-ages for a nuisance; to recover a chattel; or for determination of a claim to realproperty under article fifteen of the real property actions and proceedings law; and

3. any other action in which a party is entitled by the constitution or byexpress provision of law to a trial by jury.

However, it has been held that this section does not apply to preliminary procedures:"Section 4101 of the CPLR in providing for a jury trial of issues of fact, unless waived, wouldappear to require the jury trial in an 'action' and not in the preliminary procedures leading upto the action." Williams v. Motor Vehicle Accident Indemnification Corp., 49 Misc. 2d 972,974, 268 N.Y.S.2d 837, 839 (1966).

The provision in N.Y. Civ Prac. Law § 2218 for a jury trial only "[i]f the issue is triableof right by jury" cannot be read as extending the right to jury trial beyond that which existsunder the State constitution or N.Y. Civ. Prac. Law § 4101. The language in Fed. R. Civ. P.38(b), providing a jury trial for "any issue triable of right by jury," is similar to § 2218. Yet,rule 38 only preserves, and does not extend, the right of trial by jury as it exists under theConstitution or by statute. 9 C. Wright & A. Miller, Federal Practice & Procedure § 2301, at11 (1971).

The legislative history of N.Y. Civ. Prac. Law § 2218 is unhelpful, saying only that "is-sues of fact decided under this rule will be narrow." Second Preliminary Report of the Advi-sory Committee on Practice and Procedure, Leg. Doc. No. 13, at 190 (1958). Section 2218was apparently not meant to supersede other provisions, such as rule 108 of the Rules of CivilPractice of 1920 (repealed 1962), reprinted in Cahill-Parsons, New York Civil Practice 0-43(1946), which also concerned a trial on motions. See Second Preliminary Report, supra, at190. Rule 108, directing that questions of fact arising on a motion to dismiss be tried by a juryor referee, was not to "be construed so as to deprive a party of his right to trial by jury of anyissue as to which such right is guaranteed by the Constitution." Finkel v. Finkel, 8 A.D.2d950, 950, 190 N.Y.S.2d 494, 495 (1959). Thus, § 2218 preserved only the jury trial practicewith respect to motions that existed at the time of its adoption. This right has not been ex-tended to jurisdictional issues. See Shippey v. Berkey, 6 A.D.2d 473, 475, 179 N.Y.S.2d 366,368 (1958); N.Y. Civ. Prac. R. 3211, commentary 3211:48 (McKinney 1970). Unfortunately,there is scant case law on exactly how to determine when a jury trial right exists for proceduralissues. But see People v. Siciliano, 203 Misc. 441, 442-47, 119 N.Y.S.2d 758, 760-64 (1952)(using constitutional analysis to deny jury trial for the common law writ of coram nobis); 5Moore's, supra note 2, 38.36, at 38-309 (applying seventh amendment analysis to jurisdic-tional issues).

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2218 "beg[s] the question." 16 Instead, section 2218 grants a jury trialonly where such a right is constitutionally guaranteed.' 7

In determining whether one has a constitutional right to a jurytrial, the relevant factor is the nature of the issue to be tried S-inCerrato, the jurisdictional issue.1 9 But the Cerrato court would deter-mine the jury trial right not on the nature of that issue but on whetherthe timing of the motion is such that a new action would be barred. 0

By following the logic of the practice commentary, the Cerrato courterroneously "condition[ed] a jury trial not on the constitutional right

16 N.Y. Civ. Prac. R. 3211, commentary 3211:48 (McKinney 1970).17 See supra note 15.18 Cerrato, 92 A.D.2d at 96, 459 N.Y.S.2d at 769 (Bloom, J., dissenting). Support for this

position can be found by analogy to the federal jury trial practice for civil actions. "The basicunit in determining the existence of a right to jury trial is not the case. It is the particular issuewithin a case on which jury trial is demanded." 9 C. Wright & A. Miller, supra note 15,§ 2302, at 12; see also Ross v. Bernhard, 396 U.S. 531, 538 (1970) ("[tlhe Seventh Amendmentquestion depends on the nature of the issue to be tried rather than the character of the overallaction"). Ross was a stockholder's derivative suit. A derivative action is based upon a primaryright of the corporation, but is asserted on its behalf by the stockholder because of the corpora-tion's failure to act upon the primary right. Black's Law Dictionary 399 (5th ed. 1979). His-torically, a derivative suit was considered to be an equitable action and, therefore, not triableby jury. The underlying corporate claim, however, was legal in nature. In Ross, the courtdivided the derivative action into two subactions: the first concerned the stockholder's right tosue on behalf of the corporation; the second concerned the underlying corporate claim.

The heart of the action is the corporate claim. If it presents a legal issue, oneentitling the corporation to a jury trial under the Seventh Amendment, the right toa jury is not forfeited merely because the stockholder's right to sue must first beadjudicated as an equitable issue triable to the court.

Ross, 396 U.S. at 539; see also Fedoryszyn v. Weiss, 62 Misc. 2d 889, 310 N.Y.S.2d 55 (Sup.Ct. 1970) (applying the Ross standard to New York state courts). Applying this analogy toCerrato, the jurisdictional motion would be treated independently from the underlying tortclaim. Therefore, the right to a jury trial on a jurisdictional motion would depend not onwhether a new action was barred, see supra text accompanying notes 8-11, but on whetherthere was an historical jury trial right for the jurisdictional issue. See supra note 15.

19 "[W]here... the issue to be determined deals with the issue of a right to a trial, we cansee no basis for requiring that the question be tried by a jury." Cerrato, 92 A.D.2d at 96, 459N.Y.S.2d at 769 (Bloom, J., dissenting); see Shippey v. Berkey, 6 A.D.2d 473, 475, 179N.Y.S.2d 366, 368 (1958) ("[o]n this preliminary and narrow jurisdictional issue... the par-ties are not entitled as a matter of constitutional right to a jury trial").

20 The practice commentary to N.Y. Civ. Prac. R. 3211 states that motions involving stat-ute of limitations are jury triable on the basis that new actions would be barred were thedefendants to prevail. N.Y. Civ. Prac. R. 3211, commentary 3211:48 (McKinney 1970). Itmay seem inconsistent then to deny a jury trial for a jurisdictional motion where a new actionwould also be barred, "[s]ince a statute of limitations disposition has in common with a juris-dictional disposition that both decide whether there is to be a merits hearing at all." N.Y. Civ.Prac. R. 3211, commentary 3211:48 (McKinney Supp. 1970-1984).

One rebuttal to this argument is the position taken by the Cerrato dissent that jury trialshould be assigned not on the basis of the litigation stage, but on the nature of the issue itself.See supra text accompanying notes 13-19. There is greater precedent for granting a jury trialfor statute of limitations questions, see Barker v. Conley, 267 N.Y. 43, 195 N.E. 677 (1935);Giannavola v. General Ry. Signal Co., 244 A.D. 65, 278 N.Y.S. 480 (1935); 54 C.J.S. Limita-

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thereto but upon the stage of the proceedings in which the right [was]asserted.""1 In other words, had a jury trial been demanded a daybefore the statute of limitations expired, it would have been denied;yet had it been demanded a day later, it would have been grantedbecause a new action would have been barred. 2

tions of Actions § 399, at 548-49 (1948), than for jurisdictional ones, see supra note 19 andaccompanying text.

Lending credence to its position, the practice commentary draws an analogy to the federalcourts:

There is some case law from the federal courts suggesting that a threshold issuethat has the capacity-depending on its resolution-to put an end to the caseshould be triable by jury if the case on its merits would be so triable. A factualdispute on a statute of limitations issue, for example, was held jury triable in JohnsHopkins Univ. v. Hutton, 422 F.2d 1124 (4th Cir. 1970).

N.Y. Civ. Prac. R. 3211, commentary 3211:48 (McKinney Supp. 1970-1984). The right tojury trial for factual disputes arising out of a statute of limitations motion, however, is not aswell established as the practice commentary implies. There are "discovery" cases holding thatthe statute of limitations does not begin to run until the cause of action has been discovered.See, e.g., Owens v. White, 342 F.2d 817 (9th Cir. 1965); Lopez v. Swyer, 62 N.J. 267, 300 A.2d563 (1973). For example, in a medical malpractice action, the statute of limitations begins torun when the plaintiff discovers the alleged negligent act, and not at the point in time when thenegligent act actually occurred. E.g., id. Factual disputes arising as to the time of discoveryare tried by the court. See Owens, 342 F.2d at 819 ("the issue presents a preliminary matterfor the court, rather than the jury, since it does not reach the merits of the claim but insteadinvolves the very existence of the claim itself"); Lopez, 62 N.J. at 275, 300 A.2d at 567 ("[t]hedetermination by the judge should ordinarily be made at a preliminary hearing and out of thepresence of the jury"). But see Goodman v. Mead Johnson & Co., 534 F.2d 566 (3d Cir. 1976)(favoring the federal policy of jury decisions for disputed questions of fact), cert. denied, 429U.S. 1038 (1977)).

These cases hold that there is no jury trial right despite the existence of disputed issues offact that, if decided in favor of defendant, would permanently bar a new action. Unless there isa constitutional right to a jury trial for the issue, no such right should be guaranteed. The factthat a new action would be permanently barred should not alter this analysis.

21 Cerrato, 92 A.D.2d at 96, 459 N.Y.S.2d at 769 (Bloom, J., dissenting).22 There should be incentives for the plaintiff and his counsel to bring suit "early enough to

assure that jurisdictional objections, even should they succeed, will yet leave time to sue over!"Fact Issue, supra note 3, at 2. Indeed, the practice commentary calls for the prompt determi-nation of jurisdictional objections to ensure that the statute of limitations does not expire.

The remedy of the plaintiff. . . is to move promptly to dismiss the jurisdictionaldefense under CPLR 3211 (b), which will bring it to early adjudication. The plain-tiff must also recognize that the court on such a motion has the power to deny it... . The plaintiff should spare no effort in pointing out to the court the limita-tions' consequences that may attend such a postponement . ...

N.Y. Civ. Prac. R. 3211, commentary 3211:41 (McKinney 1970). The plaintiff should alsospare no effort in bringing suit early enough to avoid the Cerrato problem. The New YorkState Law Digest, considering this very point, concludes that "[ilt would not be a surprise wereanother court, faced with a similar situation, to hold that the plaintiff waived jury trial of thejurisdictional issue by not doing things with enough dispatch to assure that should the issuearise, there would be ample time to sue again should it succeed." Fact Issue, supra note 3, at2; cf. Barrella v. Richmond Memorial Hosp., 88 A.D.2d 379, 381, 453 N.Y.S.2d 444, 446(1982) (jury trial of motion was waived by parties' failure to demand a jury prior to comence-ment of trial).


A view contrary to the holding in Cerrato and the practice com-mentary was expressed in Marable v. Robinson.23 In Marable, thecourt reasoned that the purpose of providing a jury trial on a motionto dismiss was simply to protect the right to a jury trial guaranteed bythe constitution.24

The practice commentary to CPLR 221825 states that "if the is-sue to be tried. . . is one which can put a permanent end to the case,and the case is one otherwise triable by jury, trial by jury should bethe mode if any party insists."26 The Marable court, however, re-jected the interpretation of the practice commentary in favor of theexpress language of section 2218, and construed that section to meanthat the issue raised on the motion must carry a jury trial right, notthat the main action or case must be triable by jury. 7

The Cerrato majority supported its position by relying on priorcases that recognized a jury trial right. However, these cases are inap-posite. Barker v. Conley2 I held that an immediate trial of a factualissue arising in a preliminary motion should be ordered only where anadverse judgment on that motion would put an end to the case. 29 Thecourt also noted that such a disputed factual issue could properly besent to the jury.3" Barker is questionable authority for two reasons:First, the mode of trial-by court or jury-was not in question; 31

23 102 Misc. 2d 96, 422 N.Y.S.2d 630 (Civ. Ct. 1979), affd, 114 Misc. 2d 437, 454

N.Y.S.2d 170 (App. Term 1981). In Marable, the plaintiff sued the defendant on a tort claim.The defendant moved to dismiss, raising the statute of limitations as an affirmative defense,and the plaintiff interposed equitable estoppel as a bar to that defense. There was a factualdispute as to the circumstances surrounding the estoppel claim. The plaintiff requested thatthe factual questions be determined by a jury. The court held that since the factual issues wereequitable in nature, a jury trial was improper. At first glance, the equitable nature of Marableseems to distinguish it from Cerrato, but the case is quite analogous. Both cases demanded ajury trial for an issue that is normally tried by the court on the ground that the statute oflimitations would permanently bar a new action on the merits. In demanding a jury trial, theplaintiffs in both cases relied on the practice commentary to N.Y. Civ. Prac R. 3211. See supratext accompanying note 8. In Marable, however, the court rejected the interpretation of thepractice commentary and denied a jury trial because the issue was equitable in nature.

24 Marable, 102 Misc. 2d at 100, 422 N.Y.S.2d at 633; see supra note 15 and accompany-ing text.

25 N.Y. Civ. Prac. Law § 2218, commentary 2218:3 (McKinney 1974).26 Id. (emphasis added).27 Marable, 102 Misc. 2d at 98-100, 422 N.Y.S.2d at 632-33.28 267 N.Y. 43, 195 N.E. 677 (1935).29 In Barker, the defendant moved to dismiss a money claim on the ground of general

release. There was a disputed factual question as to the validity of the release. The court heldthat this question of fact could be submitted to a jury if it could bring about an end to thelitigation. The court specifically mentioned a general release, the statute of limitations, and thestatute of frauds as examples of defenses that would terminate all further proceedings. Id. at46, 195 N.E. at 678.

30 Id.31 The court did not consider whether the jury trial right on these issues was of constitu-

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rather, the court was deciding when it is appropriate to send issues offact to the jury.32 Second, even assuming that Barker decides that aright to jury trial exists for any preliminary fact issue where an ad-verse judgment would put an end to the case, Barker does not supportthe holding in Cerrato. The issue in Cerrato is a jurisdictional issue-one that does not terminate the litigation per se. It is only the in-dependent running of the statute of limitations that bars any futureaction.

In Marshall, Bratter, Greene, Allison, & Tucker v. Mechner,33 thecourt noted that the provision for immediate trial of factual issuesraised on a summary judgment motion34 "does not vest discretion inthe court to require the trial of such issues of fact before any type offact finder other than would be required were there no motion forsummary judgment."35 The court then stated that since this was "anaction at law in which a jury trial has been demanded, material issuesof fact cannot be referred to a referee for trial."36 Marshall, Bratter isdistinguishable from Cerrato because it involved a summary judgmentmotion. A party can prevail on a motion for summary judgment if hecan convince the court that there are "no material issue[s] of fact out-standing."3 A material issue of fact is defined as one which substan-tially involves the merits.38 A jurisdictional motion, on the otherhand, is not material; it is a preliminary motion that must be resolvedbefore the action can be reached on the merits.

Finkel v. Finke139 stated that the rule permitting pretrial determi-

tional dimensions. The Barker court "seem[ed] more to assume than to hold that a jury isrequired in these cases. It was more concerned with when a court should direct the immediatetrial of a fact issue arising on a motion than it was with the form the trial is to take." FactIssue, supra note 3, at 1; see infra note 32. Thus, it is unclear whether Barker even compels ajury trial for an issue that actually terminates the litigation.

32 The Barker court was concerned about when it is proper to order an immediate trial of

the factual issues in order to rapidly dispose of the litigation. "To terminate lawsuits by thespeedy disposition of questions in bar of recovery was the end in view." Barker, 267 N.Y. at46, 195 N.E. at 678. Ironically, this is also a reason behind having a judge decide the issue inCerrato. For a discussion of judicial economy, see infra text accompanying notes 131-32.

33 53 A.D.2d 537, 384 N.Y.S.2d 787 (1976).34 N.Y. Civ. Prac. R. 3212(c) (McKinney Supp. 1970-1984).35 Marshall, 53 A.D.2d at 537, 384 N.Y.S.2d at 788.36 Id. at 538, 384 N.Y.S.2d at 788.37 N.Y. Civ. Prac. R. 3212, commentary 3212:1 (McKinney 1970).38 See Wanger v. Zeh, 45 Misc. 2d 93, 96, 256 N.Y.S.2d 227, 231 (Sup. Ct. 1965).39 8 A.D.2d 950, 190 N.Y.S.2d 494 (1959). In Finkel, a father sued his son for negligently

driving an automobile in which the father was a passenger. The son defended by alleging thathe was an unemancipated minor at the time of the accident. Rule 108 of the Rules of CivilPractice of 1920 (repealed 1962), reprinted in Cahill-Parsons, New York Civil Practice 0-43(1946), authorized the court to try to a jury or referee questions of fact arising on a motion.The court held that the question of the son's status was jury triable along with the other issuesinvolved in the case. Finkel, 8 A.D.2d at 950, 190 N.Y.S.2d at 495-96.

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nation of issues raised on a motion to dismiss "may not be construedso as to deprive a party of his right to a trial by jury of any issues as towhich such right is guaranteed by the Constitution. . . .. " Thus, indeciding whether a party may have a jurisdictional issue tried before ajury, the Finkel court would look to see whether such a right is pro-vided for by the constitution.4 1

The next part of this Note will address whether there is a guaran-teed right to jury trial for factual issues raised by a motion to dismissfor lack of jurisdiction. The Cerrato dissent argued that the nature ofthe issue-there, the preliminary jurisdictional issue-determines theright to jury trial.42 The dissent maintained that a jurisdictional mo-tion does not carry a jury trial right.4 3 The scant New York case lawon the subject is in accord with the dissent's view,' as is the practicecommentary to CPLR 3211, which lists lack of jurisdiction as an ex-ample of an issue that does not warrant a jury trial.45 Since there isno statutory right to jury trial on this issue, none should be grantedunless it is constitutionally required.46 Therefore, the question be-comes whether there is any constitutional guarantee for such a right.

II. THE CONSTITUTIONAL RIGHT TO A JURY TRIAL FOR

JURISDICTIONAL ISSUES

A. Federal Courts

1. Premerger Cases

The seventh amendment preserves the right of trial by jury "insuits at common law."' 47 Applying a historical analysis,48 if the issue

40 Finkel, 8 A.D.2d at 950, 190 N.Y.S.2d at 495.41 See supra note 15 and accompanying text.42 Cerrato, 92 A.D.2d at 96, 459 N.Y.S.2d at 769 (Bloom, J., dissenting); see supra note 18

and accompanying text.43 Cerrato, 92 A.D.2d at 96, 459 N.Y.S.2d at 769 (Bloom, J., dissenting).44 See supra note 19 and accompanying text.45 N.Y. Civ. Prac. R. 3211, commentary 3211:48 (McKinney 1970); see supra text accom-

panying note 8.46 See supra note 15.47 The seventh amendment states: "In suits at common law, where the value in controversy

shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by ajury, shall be otherwise re-examined in any Court of the United States, than according to therules of the Common Law." U.S. Const. amend. VII.

48 The use of the term "preserved" in the seventh amendment compels a historical analysis

of the right to a jury trial as it existed under English common law. See, e.g., Baltimore &Carolina Line, Inc. v. Redman, 295 U.S. 654, 657 (1935) ("[tjhe right of trial by jury thuspreserved is the right which existed under the English common law when the Amendment wasadopted"). The historical approach is not to be rigidly applied, however. Allowance must bemade for causes of action that did not exist under English common law. "In other words,modem-day courts, reasoning by analogy to the English common law of 1791, would ask: had


did not carry a jury trial right in 1791, when the seventh amendmentwas adopted, or in 1938, when the Federal Rules of Civil Procedurewere adopted,4 9 there is no constitutional right to a jury trial. To bejury triable, the right asserted and the remedy demanded must belegal, not equitable, in nature.5" A jurisdictional issue is neither legalnor equitable within the meaning of the common law.5" Instead, it isa preliminary issue that must be determined before the action can beheard on the merits. If a jurisdictional issue arises in an action of anequitable nature, there is no basis for seeking a jury trial since theseventh amendment preserved only the common law right to a jurytrial and an equitable action carried no such right.52 If the same issuearises in an action at law, the question becomes whether the seventhamendment guarantee of trial by jury extends to preliminary jurisdic-tional issues-in other words, whether a jury should be called solelyto determine whether or not a court has the power to hear a case.

There are no English common law precedents supporting theview that a jury trial can be afforded for jurisdictional issues. This

such a cause of action existed at that time, would the common law have provided a right tojury trial?" Redish, supra note 1, at 491.

49 9 C. Wright & A. Miller, supra note 15, § 2302, at 14-15. The adoption of the Federal

Rules of Civil Procedure in 1938 merged law and equity. Therefore, "if the issue would havebeen tried to the jury in the law courts just prior to the adoption of the codes, either party maynow claim such trial as of right." C. Clark, Code Pleading § 16, at 92 (2d ed. 1947); see alsoRoss v. Bernhard, 396 U.S. 531, 538 n.10 (1970) (directing courts to examine "the pre-mergercustom with reference to such questions").

Determining jury trial right on the basis of premerger custom, instead of English commonlaw at 1791, has been criticized as bypassing the common law jury trial practice to which theseventh amendment refers.

For example, post-1791 actions at law are relevant only to the extent thatsuch actions represent evolution from writs that existed in 1791. . . . the test isobjectionable because it misleadingly implies that "pre-merger custom" ... may

be considered independently of history and thereby ignores the need to justify suchconsiderations by reference to the jury trial practice of the common law, a stepthat the seventh amendment commands.

Note, The Right to Jury Trial in Enforcement Actions Under Section 502(a)(1)(B) of Erisa, 96Harv. L. Rev. 737, 747 n.73 (1983); see also Wolfram, supra note i, at 641-42 & n.8 (criticism

of the premerger test espoused by Wright & Miller and Ross v. Bernhard). From a practicalstandpoint, an examination of premerger custom would be difficult to apply. It would involve"casting about at large amongst the widely varying state and federal practices in the almosttwo centuries that have intervened." Id. at 643. However, where, as here, the right did notexist in the common law because of a structual difference in the courts, see infra note 53 and

accompanying text, greater consideration should perhaps be given to premerger custom.50 Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 447 (1830). The common law recognized

"suits in which legal rights were to be ascertained and determined, in contradistinction to

those where equitable rights alone were recognized, and equitable remedies wereadministered."

51 See 5 Moore's, supra note 2, 38.11[5], 38-78 to 86 (listing the various legal and equita-ble issues in England at the adoption of the seventh amendment).

52 See supra notes 47-51 and accompanying text.

1984] JURY TRIAL RIGHT

may be explained by the fact that "the pre-revolutionary English com-mon law courts were courts of general jurisdiction so the question ofjurisdiction predicated upon contested facts seldom if ever arose."53

The weight of authority of the cases that arose prior to themerger between law and equity is against submitting a jurisdictionalissue to the jury.54 The cases either deny the right to jury trial for ajurisdictional issue55 or place discretion in the trial judge to decidewhat mode of trial is appropriate. 6

a. Personal Jurisdiction - Wall v. Chesapeake & 0. Ry. 57 dis-cussed the constitutional dimensions of the claim of a right to a jurytrial for issues pertaining to personal jurisdiction.5" In Wall, theplaintiff sued on a tort claim. The defendant moved to quash thesummons on the ground that the person served was not authorized bylaw to accept process. The court held that the issue of whether there

53 5 Moore's, supra note 15, 38.35[1], at 38-310 (1984). The three major common lawcourts were the Exchequer, Common Pleas, and King's Bench. The method for initiating asuit in the common law court was the writ system. A separate writ existed for each civilaction, and presenting the wrong writ meant losing the suit. However, "[b]y the 1790's aplaintiff could sometimes forego obtaining an original writ and could instead proceed directlyto serving process upon a defendant by capias in Common Pleas or by bill of Middlesex orlatitat in King's Bench." Comment, Complex Civil Litigation and the Seventh AmendmentRight to a Jury Trial, 51 U. Chi. L. Rev. 581, 587 n.28 (1984).

English courts obtained jurisdiction over the defendant by a capias which broughtthe defendant physically into court, so modern issues as to whether a defendant,particularly a corporation, is subject to service of process were unknown. Andissues as to venue in the English courts, each of which had territorial jurisdictionthroughout England, would generally be unimportant, whereas in the multiple fed-eral district courts, subject to multiple venue statutes, the problem of venue isoften complex.

5 Moore's, supra note 2, 36.3611], at 38-313 n.12.54 See infra notes 57-78 and accompanying text. The exception is where a jurisdictional

fact also involves the merits of the controversy. In this situation, the right to jury trial on themerits would be infringed upon by having the court decide the jurisdictional issue. See infranote 93.

55 See, e.g., Wall v. Chesapeake & 0. Ry., 95 F. 398 (7th Cir. 1899).56 See, e.g., Wetmore v. Rymer, 169 U.S. 115, 120-23 (1898).57 95 F. 398 (7th Cir. 1899).58 Arguably, a stronger constitutional claim to jury trial can be made for issues of personal

jurisdiction than for issues of subject matter jurisdiction. Because personal jurisdiction is not aconstitutionally defined power like subject matter jurisdiction, see infra notes 65-75 and ac-companying text, a court is under no affirmative duty to dismiss for lack of personal jurisdic-tion. In fact, personal jurisdiction can easily be waived. See Fed. R. Civ. P. 12(h)(1). Acounter argument is that personal jurisdiction is easily separated from the merits and thereforecan be determined by a judge without jeopardizing the jury trial right on the main action. Seeinfra note 93 and accompanying text. For other premerger cases denying a jury trial right forissues pertaining to personal jurisdiction, see Murray v. Campbell Soup Co., 40 F.2d 671 (D.Mass. 1930); Southern Photo Material Co. v. Eastman Kodak Co., 224 F. 523 (N.D. Ga.1915); Peper Auto. Co. v. American Motor Car Sales Co., 180 F. 245 (C.C.E.D. Mo. 1910);Benton v. McIntosh, 96 F. 132 (C.C.N.D. I11. 1899).

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was proper service of process could be determined by the court with-out a jury:

The constitutional right to a jury trial obtains whenever thereis any question at issue involving the life, liberty, or property of thecitizen. But a motion to quash a service of summons, or any otherprocess or order, for insufficiency in the service, involves no suchsubstantial right.59

Peper Automobile Co. v. American Motor Car Sales Co. 6° was anaction to recover damages for breach of contract. The defendantmoved to quash the return of the summons on the ground that thedefendant was not engaged in business in the state and the personserved was not its agent or representative. The court held that juris-dictional issues were not within the scope of either the seventhamendment or a federal statute expressly providing that issues of factin actions at law be tried by a jury. 6' The court stated:

[T]here is . . .no valid reason appearing why the court, withoutthe intervention of a jury, may not and should not proceed to aninvestigation and decision of such question touching its jurisdictionso acquired over the person of defendant. The question presentedis not such an issue of fact as entitles the plaintiff to a jury trialthereof as a matter of right under the constitution and thestatute.62

Wall and Peper, thus, argue that the constitutional right of jurytrial is confined to the cause of action on the merits and does notextend to preliminary issues of personal jurisdiction. Since preserva-tion of the right to a jury trial on the merits is "surely the great objec-tive of the Seventh Amendment, ' 63 extending jury trial to preliminaryjurisdictional issues not only exceeds the constitutional objective, butmay actually impair it by delaying a determination on the merits.'

b. Federal Subject Matter Jurisdiction - Where the factual dis-pute involves federal subject matter jurisdiction,65 the premerger cases

59 Wall, 95 F. at 403.60 180 F. 245 (C.C.E.D. Mo. 1910).61 The Peper court was referring to Revised Statute of 1878, tit. XIII, § 648, 18 Stat. 118

(repealed 1948), which stated in part: "The trial of issues of fact in the Circuit Courts shall beby jury, except in cases of equity and of admiralty and maritime jurisdiction .

62 Peper, 180 F. at 248.63 Moore's, supra note 15, 38.36[t], at 38-313.64 Id. See also Katz v. Goodyear Tire & Rubber Co., 737 F.2d 238, 246 (2d Cir. 1984)

(Kaufman, J., concurring) (full-blown trials on procedural disputes "could preclude considera-tion of the underlying claim").

65 Federal subject matter jurisdiction is derived from the Constitution:The judicial Power shall extend to all cases, in Law and Equity, arising under thisConstitution, the Laws of the United States, and Treaties made, or which shall be

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hold that there is no right to a jury trial. 66 The leading case on thesubject is Wetmore v. Rymer,67 where the Supreme Court held thatthe trial court may properly determine the question of the jurisdic-tional amount needed for subject matter jurisdiction without submit-ting it to the jury:

[T]he court might doubtless order the [jurisdictional] issue to betried by the jury ...

But the questions might arise in such a shape that the courtmight consider and determine them without the intervention of ajury. And it would appear to have been the intention of Congressto leave the mode of raising and trying such issues to the discretionof the trial judge.68

The Supreme Court applied this rationale to diversity jurisdic-tion in Gilbert v. David.6 9 In Gilbert, the plaintiff brought suit in adistrict court to recover for breach of contract. The defendant filed amotion to dismiss for want of jurisdiction. After hearing testimony,the court found that both parties were citizens of the same state and,accordingly, dismissed the suit for lack of jurisdiction. The SupremeCourt, citing Wetmore, held that the mode of trial for jurisdictionalquestions is within the discretion of the trial judge who might, if hesaw fit, "dispose of tl~e issue upon the testimony which was fullyheard upon that subject."7

made, under their Authority;-to all Cases affecting Ambassadors, other publicMinisters and Consuls;-to all Cases of admiralty and maritime Jurisdiction;-toControversies to which the United States shall be a party;-to Controversies be-tween two or more States;- between a State and Citizens of another State;-be-tween Citizens of different States;-between Citizens of the same State claimingLands under Grants of different States, and between a State, or the Citizensthereof, and foreign States, Citizens, or Subjects.

U.S. Const. art. III, § 2.Thus, there are three basic types of controversies over which the federal courts have sub-

ject matter jurisdiction: (1) suits based on a federal question, codified in 28 U.S.C. § 1331(1982); (2) suits based on diversity of citizenship, codified in 28 U.S.C. § 1332 (1982); and (3)suits based on admiralty, codified in 28 U.S.C. § 1333 (1982). In addition, in cases based ondiversity of citizenship it is necessary to show that there is a minimum amount in controversybefore federal courts can take jurisdiction. 28 U.S.C. § 1332(a) (1982).

66 See Gilbert v. David, 235 U.S. 561 (1915); Wetmore v. Rymer, 169 U.S. 115 (1897);Guarantee Trust Co. v. Collings, 76 F.2d 870 (3d Cir. 1935), cert. denied, 295 U.S. 747 (1935);Nixon v. Town Taxi, Inc., 39 F.2d 618 (D. Mass. 1930); Wilderman v. Roth, 17 F.2d 486 (3dCir. 1927); Sclarenco v. Chicago Bonding Co., 236 F. 592 (W.D. Ky. 1916); Maxwell v. Atchi-son, T. & S.F.R.R., 34 F. 286 (E.D. Mich. 1888); Watters v. Ralston Coal Co., 25 F. Supp. 387(M.D. Pa. 1938).

67 169 U.S. 115 (1898).68 Id. at 120-21.69 235 U.S. 561 (1915).70 Id. at 568.


These decisions contend that questions that go to the very powerof the court to hear the case are best left to the discretion of the judgeto determine what mode of trial is appropriate.7 ' This argument isstrengthened by the fact that federal courts are courts of limited juris-diction. 2 They can only hear cases within the judicial power of theConstitution or that granted by Congress. 3 Since a federal court can-not hear a case when it lacks the requisite subject matter jurisdic-tion,14 then arguably a court must have the power to determine itsown jurisdiction without relying on an outside body, i.e., the jury.75

In any event, Wetmore and Gilbert have been uniformly followed, andit is settled that questions relating to jurisdictional amount76 and di-

71 The Wetmore and Gilbert decisions rested partly on the Act of March 3, 1875, ch. 137,

§ 5, 18 Stat. 470, 472, which permitted a court to inquire into jurisdictional facts on its ownmotion. The Act required a court to dismiss a case if it did "not really and substantiallyinvolve a dispute or controversy properly within the jurisdiction of said . . . court." Id. Thestatute has been carried forward in modified form as 28 U.S.C. § 1359 (1982), with the aboveprovision omitted as unnecessary because "[a]ny court will dismiss a case not within its juris-diction when its attention is drawn to the fact, or even on its own motion." 28 U.S.C. § 1359note (1982); see also Fed. R. Civ. P. 12(h)(3) ("[w]henever it appears by suggestion of theparties or otherwise that the court lacks jurisdiction of the subject matter, the court shalldismiss the action"). Thus, the court is given broad powers to determine whether it has properjurisdiction.

72 See C. Wright, Law of Federal Courts § 7, at 22 (4th ed. 1983).73 Id.74 Id.75 An analogous argument was presented in Crowell v. Benson, 285 U.S. 22 (1932). Crow-

ell was a proceeding for compensation under the Federal Longshoremen's and HarborWorker's Compensation Act, 33 U.S.C. §§ 901-950 (1982). Under the administrative proce-dure provided by the Act, there had been a hearing and determination by a commissioner, whohad awarded compensation for an injury that occurred in the course of employment. Thepetitioner brought a bill for injunction in the federal district court on the ground that theinjured party was not within the petitioner's employ at the time of the injury and, therefore,not within the jurisdiction of the commissioner. The district court held that the question ofemployment must be determined on wholly new evidence and provided for a trial de novo.Benson v. Crowell, 33 F.2d 137 (S.D. Ala. 1929). The Supreme Court affirmed in an opinionwritten by Chief Justice Hughes. The Court held that the commissioner could properly deter-mine issues going to the substance of the Act, in much the same way that a jury is deemedappropriate to decide issues arising under the common law. Crowell, 285 U.S. at 51. "Adifferent question," however, "is presented where the determinations of fact are fundamentalor 'jurisdictional,' in the sense that their existence is a condition precedent to the operation ofthe statutory scheme." Id. at 54 (footnote omitted). These facts must be determined indepen-dently in court and not by the administrative body. Otherwise, it "would ... sap the judicialpower as it exists under the Federal Constitution." Id. at 57.

Justice Brandeis, in a dissenting opinion, argued that the fact of employment was notjurisdictional, but "quasi-jurisdictional," and went to the applicability of the substance of theAct, and not to the jurisdiction of the tribunal. Id. at 85 (Brandeis, J., dissenting). AlthoughCrowell has never been expressly overruled, administrative agencies often make jurisdictionaldeterminations and it is debatable whether Crowell is still good law. See Schwartz, Does theGhost of Crowell v. Benson Still Walk?, 98 U. Penn. L. Rev. 163 (1949).

76 See, e.g., Gibbs v. Buck, 307 U.S. 66, 71-72 (1939); Zunamon v. Brown, 418 F.2d 883,887 (8th Cir. 1969). Note that a disputed factual issue pertaining to jurisdictional amount may


versity of citizenship77 can properly be determined by the courtalone.7"

2. Postmerger Cases

The weight of authority of the premerger cases suggests that theconstitutional guarantee of a jury trial does not extend to preliminaryjurisdictional issues.7 9 The Supreme Court, however, has rejected thestrictly historical approach8" in a trilogy of cases that expands theright to jury trial.8 ' The question arises as to what effect, if any, thisexpansion has on the right to a jury trial for jurisdictional issues.8 2

be largely irrelevant, since there is often nothing preventing the plaintiff from increasing hisdemand for damages to meet the requisite amount. See C. Wright, supra note 72, § 32, at 176.

77 See, e.g., Hardin v. McAvoy, 216 F.2d 399, 403 (5th Cir. 1954); Eldridge v. Richfield OilCorp., 247 F. Supp. 407, 410 (S.D. Cal. 1965).

78 An intersting application of the right to a jury for an issue of domicile was recentlydecided by the Second Circuit in Katz v. Goodyear Tire & Rubber Co., 737 F.2d 238 (2d Cir.1984). Katz was an action for personal injury and loss of consortium arising out of an accidentthat occurred in Virginia. The defendant contended that the plaintiffs' action was barred byVirginia's two-year statute of limitations. He further argued that plaintiffs could not takeadvantage of New York's borrowing statute, N.Y. Civ. Prac. Law § 202 (McKinney 1972), inorder to apply New York's three-year limitation period since plaintiffs were not New Yorkdomiciliaries at the time the cause of action accrued. The plaintiffs disputed this and de-manded a jury trial on the question of their domicile. The court, carefully distinguishing be-tween jurisdictional and nonjurisdictional issues, Katz, 737 F.2d at 242 n.2, held that anonjurisdictional factual dispute about plaintiffs' domicile should be determined by the trier offacts, in this case a jury. Judge Irving Kaufman, however, in a concurring opinion, questionedthe need for a full trial to determine the issue of domocile:

[A]lthough I agree there exists a genuine dispute as to a material issue of fact inthis case, I am troubled by the implication that it is not possible to dispose of suchdiscrete issues as this one without resort to a full trial on the merits. . . . Withoutcommenting upon the precise procedure to be utilized on remand in this case, itwould seem paradoxical to require a full trial on the merits to determine whether atrial is appropriate.

Id. at 246 (Kaufman, J., concurring).79 See supra notes 54-78 and accompanying text.80 See Note, Congressional Provision for Nonjury Trial Under the Seventh Amendment,

83 Yale L.J. 401 (1973).The Supreme Court has expounded its modern view of the Seventh Amend-

ment in the trilogy of Beacon Theatres, Inc. v. Westover [359 U.S. 500 (1959)],Dairy Queen, Inc. v. Wood [369 U.S. 469 (1962)], and Ross Y. Bernhard [396 U.S.531 (1970)]. In these cases the court rejected the notion that the application of theSeventh Amendment compels categorization of rights and remedies as legal or eq-uitable on a basis rigidly historical.

Id. at 408. For a criticism of a departure from the strict historical test, see Redish, supra note1, at 489. Professor Redish argues that because of the inherent inefficiency of jury trials, thestrict historical approach should be followed since a departure from the historical test wouldexpand the right of trial by jury that existed at common law.

81 Beacon Theatres and its progeny have expanded the right to a jury trial into areas thatwere historically equitable. See 9 C. Wright & A. Miller, supra note 15, § 2302, at 21; infranotes 82-90 and accompanying text.

82 Moore's, supra note 2, 38.36[l], at 38-314; See also 9 C. Wright & A. Miller, supra

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The first case in this series was Beacon Theatres, Inc. v. West-over."3 In Beacon, the plaintiff sought both an injunction preventingthe defendant from instituting antitrust suits and a declaratory judg-ment that plaintiff had not violated the antitrust laws. The defendantcounterclaimed, alleging that plaintiff had indeed violated the anti-trust laws, and sought damages. The court of appeals held that eventhough there were issues common to the claims of both plaintiff anddefendant, it would hear the plaintiff's equitable claim first.84 Thus, ajudgment in favor of plaintiff would estop the defendant from havinghis counterclaim heard by a jury. The Supreme Court reversed andheld that where there are both legal and equitable claims, the courtmust ordinarily try the legal claim first in order to preserve the jurytrial right for that claim.85

The next case in the trilogy was Dairy Queen v. Wood. 86 In DairyQueen, the plaintiff owned a copyrighted trade name and had licensedthe defendant to use it. When the defendant defaulted in its pay-ments, the plaintiff sought an injunction against further use of thetrademark, as well as an accounting to determine the exact amountowed by the defendant and a judgment for that amount. It was un-clear whether the claim for money judgment was based on damagesfor trademark infringement or for the amount owed under the con-tract. The Court held that no matter what the theory, it was a legalclaim triable by jury. The use of the word "accounting" did not makethe claim equitable, for "the constitutional right to trial by jury can-not be made to depend upon the choice of words used in thepleadings."87

The departure from the historical test culminated in Ross v.Bernhard.88 Ross was a stockholders' derivative action in which thestockholders alleged, among other things, that third parties hadbreached their contract with the corporation and were guilty of grossnegligence. A stockholders' derivative suit was historically equitablesince a stockholder had no standing to sue on behalf of a corporation.The underlying contract and negligence claims would have been tria-

note 15, § 2302, at 17 (Recent Supreme Court "decisions recognize that there is a strong fed-eral policy favoring trial by jury of issues of fact. This policy in itself may provide the answerin cases in which the historical test gives no clear guidance.").

83 359 U.S. 500 (1959).84 Beacon Theatres, 252 F.2d 864 (9th Cir. 1958), rev'd, 359 U.S. 500 (1959).85 Beacon Theatres, 359 U.S. at 504-11.86 369 U.S. 469 (1962).87 Id. at 477-78.88 396 U.S. 531 (1970). For an application of Ross to the proposition that it is the nature of

the jurisdictional issue that determines jury trial right, see supra note 18 and accompanyingtext.

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ble by jury if they had arisen in a suit brought by the corporation inits own behalf rather than in a derivative action.

The Court separated the equitable and legal claims and held thatthe latter were triable by jury once the court, without a jury, deter-mined that the stockholder had standing to sue. 89 The Court rea-soned that before merger, suits in equity arose where there was noadequate remedy at law. A derivative suit was historically equitablebecause common law courts refused to hear a case where a stock-holder was attempting to assert a claim not his own. The merger oflaw and equity made such a distinction obsolete, since a single courtcould now pass judgment on both the equitable and legal issues.90

The Beacon Theatres trilogy should not be read as extending ajury trial right to preliminary jurisdictional issues.9' Jurisdictionmust be proven in cases arising under both law and equity.92 There-fore, the merger of law and equity is irrelevant in determiningjurisdiction.

Further, the preliminary nature of jurisdictional issues enablesthem to be easily separated from the merits without jeopardizing themain action. Therefore, trying the jurisdictional issue to the courtgenerally will not undermine the jury trial right on the merits.93

89 Ross, 396 U.S. at 532-33.

90 Id. at 539.91 Seideman v. Hamilton, 173 F. Supp. 641, 642 (E.D. Pa. 1959) ("It has been suggested

that the recent case of Beacon Theatres, Inc. v. Westover, 359 U.S. 500 (1959), . . . mightindicate a different result. An examination of that case, however, shows that the questioninvolved was one of right of trial by jury and not jurisdiction."), af'd, 275 F.2d 224 (3d Cir.1960), cert. denied, 363 U.S. 820 (1960).

92 See U.S. Const. art. III, § 2, cl. 1 ("The judicial Power shall extend to all Cases, in Lawand Equity"); C. Wright, supra note 72, § 7, at 22 (Federal courts "are empowered to hearonly such cases as are within the judicial power of the United States, as defined in the Constitu-tion, and have been entrusted to them by a jurisdictional grant by Congress.").

93 "The only exception would be those cases where . . . the question of jurisdiction isdependent on a decision of the merits." Bailey's Bakery, Ltd. v. Continental Baking Co., 235F. Supp. 705, 714 (D. Hawaii 1964), af'd per curiam, 401 F.2d 182 (9th Cir. 1968), cert.denied, 393 U.S. 1086 (1969), overruled on other grounds, Kirihara v. Bendix Corp., 306 F.Supp. 72 (D. Hawaii 1969). The Supreme Court first warned of infringing on the right to ajury trial when a preliminary hearing goes to the merits of the case in Smithers v. Smith, 204U.S. 632 (1907). This doctrine was reiterated in Land v. Dollar, 330 U.S. 731 (1947). InLand, stockholders of a financially troubled corporation entered into a contract whereby theyturned their stock over to the United States Maritime Commission in return for a subsidy,loans, and release of certain obligations. After discharging their obligations, they brought anaction against the Commission for return of the stock on the grounds that it had not beentransferred, but had been pledged as security for the loans. The Commission alleged lack ofjurisdiction on the ground that the United States had not consented to be sued. The court heldthat determining whether the United States could be sued depended on whether the Commis-sion had wrongfully withheld the stock. This was also the cause of action on the merits.Therefore, determining whether the court had jurisdiction over the United States depended ona resolution of the merits. Hence, the court should have determined its jurisdiction by pro-

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The postmerger cases have not, in fact, significantly expandedthe right to jury trial for jurisdictional issues.94 However, it is some-times unclear whether certain facts, necessary to maintain a cause ofaction, are jurisdictional facts or facts involving the merits of the ac-tion.95 Where they involve the merits, the seventh amendment com-mands a jury trial.

The primary area of confusion concerns federal question jurisdic-tion. For example, in Rosemound Sand & Gravel Co. v. Lambert

ceeding to a decision on the merits. See also Wade v. Rogala, 270 F.2d 280 (3d Cir. 1959)(jury trial proper where determining jurisdictional amount involved the merits); Friedman v.Wilson Freight Forwarding Co., 181 F. Supp. 327 (W.D. Pa. 1960) (jury trial proper wheredetermining personal jurisdiction involved the merits), aff'd, 320 F.2d 244 (3d Cir. 1963);Kever v. Philadelphia & Reading Coal & Iron Co., 234 F. 814 (E.D.N.Y. 1916) (jury trialproper where determining diversity of citizenship involved the merits), rev'd on other grounds,260 F. 534 (2d Cir.), cert. denied, 250 U.S. 665 (1919).

94 But see Shaffer v. Coty, Inc., 183 F. Supp. 662, 666 (S.D. Cal. 1960) ("recent decisionsindicate that the allowable discretion of the District Court as to how issues of jurisdictionalfact are to be adjudicated, and by whom, may be less broad than the earlier cases state").

95 Courts have also had difficulty distinguishing between questions of law and questions offact in jurisdictional issues. Only questions of fact can be determined by a jury. A fact may bedefined "as that out of which the point of law arises, that which is asserted to be or not to be,and is to be presumed or proved to be or not to be for the purpose of applying or refusing toapply a rule of law." Black's Law Dictionary 532 (5th ed. 1979) (quoting Hinckley v. Town ofBarnstable, 311 Mass. 600, 603, 42 N.E.2d 581, 584 (1942)). Thus, a jurisdictional fact is onethat must be proven before a court can properly take jurisdiction as a matter of law. Noble v.Union River Logging R.R., 147 U.S. 165, 173 (1893).

An example of this difficulty can be found in the principal case of Cerrato v. ThurconConstr. Corp., 92 A.D.2d 89, 459 N.Y.S.2d 765 (1983). Cerrato involved a dispute as towhether the employee served was authorized to accept such service. N.Y. Civ. Prac. Law§ 311 (McKinney 1972) provides in pertinent part:

Personal service upon a corporation or governmental subdivision shall bemade by delivering the summons as follows:

1. upon any domestic or foreign corporation, to an officer, director, managing orgeneral agent, or cashier or assistant cashier or to any other agent authorized byappointment or by law to receive service.

Determining the employee's status in the corporation is a factual issue. Whether such personcan then be served is a matter of law to be determined by application of the statute. TheCerrato majority held that the employee's "authority, or lack of it, is a factual matter whichcan be resolved by a jury and which may combine questions of law." Cerrato, 92 A.D.2d at 94,459 N.Y.S.2d at 768. The dissent stated: "The only question is whether the person so servedhad actual or apparent authority to accept such service. While determination of the issue mayinvolve the ascertainment of facts, in last analysis the conclusion required to be reached is oneof law." Id. at 96-97, 459 N.Y.S.2d at 770 (Bloom, J., dissenting).

The mixed nature of jurisdictional issues has led some courts to deny parties a jury trial.See Williams v. J.F. Ball Bros. Lumber Co., 105 Kan. 284, 287, 182 P. 552, 553 (1919) (sincejurisdiction involves mixed questions of law and fact, "[i]t would manifestly lead to absurdresults if a court must call a jury to determine whether the court has jurisdiction of the partiesto a cause"); cf. Owens v. White, 342 F.2d 817, 819 (9th Cir. 1965) ("it is unrealistic to expectthe jury to perform the 'intellectual gymnastic' of adjudicating both the limitations questionand the merits").


Sand & Gravel Co.,9 6 the plaintiff alleged violations of antitrust stat-utes.97 To invoke the statutes, and thereby maintain a cause of actionbased on federal question jurisdiction, the plaintiffs had to prove aneffect on interstate commerce. The court of appeals considered such aquestion to be jurisdictional in nature and, echoing Gilbert v. David,98

denied plaintiff a jury trial on the issue.99

The contrary position is typified by cases arising under the JonesAct."° To be covered by the Act, the plaintiff must prove that he is aseaman. 10' Where facts as to whether the plaintiff is a seaman withinthe meaning of the Act are disputed, the cases uniformly hold thatthere is a right to a jury trial."0 2 There is some indication, however,that such facts are not being treated as jurisdictional by the courts inthese cases.13 Instead, the courts are construing the issue as involv-ing the underlying cause of action and, therefore, as being triable by

96 469 F.2d 416 (5th Cir. 1972).97 Sherman Anti-Trust Act, 15 U.S.C. §§ 1-7 (1982); Clayton Act, 15 U.S.C. §§ 12-27

(1982); Robinson-Patman Act, 15 U.S.C. §§ 13-13b, 21a (1982).98 235 U.S. 561 (1915).99 Rosemound, 469 F.2d at 418; see also Menchaca v. Chrysler Credit Corp., 613 F.2d 507,

511 (5th Cir. 1980) (jurisdictional questions necessary under civil rights statute were triable bythe court); Bailey's Bakery, Ltd. v. Continental Baking Co., 235 F. Supp. 705, 714 (D. Hawaii1964) (disputed fact necessary to prove an effect on interstate commerce should be tried by thecourt), atrd per curiam, 401 F.2d 182 (9th Cir. 1968), cert. denied, 393 U.S. 1086 (1969),overruled on other grounds, Kirihara v. Bendix Corp., 306 F. Supp. 72 (D. Hawaii 1969). Butsee Marks Food Corp. v. Barbara Ann Baking Co., 274 F.2d 934 (9th Cir. 1959). In Marks,the court stated that "[t]he theory that the existence of an effect on interstate commerce is ajurisdictional fact, enabling the judge to determine the issue for himself . . . will in practicedeprive plaintiffs of their right to a jury trial." Id. at 935 n. 1. The Marks court also based itsdecision on the practice of determining jurisdictional issues by a jury where the factual meritsof the case must be considered before deciding the jurisdictional issue. See supra note 93. Thecourt held that the jurisdictional issue could properly be determined by a judge only where it is"so frivolous that but the one view is entertainable by reasonable minded persons." Marks,274 F.2d at 936. This, however, is an unduly broad view of that practice, and Marks hasgenerally not been followed. See Bailey's Bakery, 235 F. Supp. at 714 ("the thrust of theMarks Food case has been blunted").100 46 U.S.C. § 688 (1982).101 Id.

102 See Butler v. Whiteman, 356 U.S. 271 (1958) (per curiam); Grimes v. Raymond Con-

crete Pile Co., 356 U.S. 252 (1958) (per curiam); Senko v. LaCrosse Dredging Corp., 352 U.S.370 (1957); Gianfala v. Texas Co., 350 U.S. 879 (1955) (per curiam); Harney v. William M.Moore Bldg. Corp., 359 F.2d 649 (2d Cir. 1966).

103 See Romero v. International Terminal Operating Co., 358 U.S. 354 (1959); see also Lau-

ritzen v. Larsen, 345 U.S. 571 (1953):As frequently happens, a contention that there is some barrier to granting

plaintiff's claim is cast in terms of an exception to jurisdiction of subject matter. Acause of action under our law was asserted here, and the court had power to deter-mine whether it was or was not well founded in law and in fact.

Id. at 575; Crowell v. Benson, 285 U.S. 22, 85 (1932) (Brandeis, J., dissenting) ("[tihe existenceof a relation of employment is a question going to the applicability of the substantive law, notto the jurisdiction of the tribunal").


jury." The Jones Act cases appear factually indistinguishable fromRosemound, although one commentator has suggested that the spe-cific jury trial right contained in the Act may make the difference. °5

B. State Courts

Research has revealed few state court decisions concerning theright to a jury trial for jurisdictional issues. Although state courtshave more frequently granted a jury trial for jurisdictional issues thantheir federal counterparts, 1

06 a survey of the cases shows a clear judi-

104 If the issue involves the merits, the proper procedural objection would be failure to state

a claim rather than want of subject matter jurisdiction. See Moore's, supra note 2, 38.36 [2],at 38-316 & n.3; see also Bell v. Hood, 327 U.S. 678 (1946) (federal question jurisdiction is notdefeated by possibility that recovery is not legally available under federal law).

The basic difference among the various 12(b) motions is, of course, that12(b)(6) alone necessitates a ruling on the merits of the claim, the others deal withprocedural defects. Because 12(b)(6) results in a determination on the merits at anearly stage of plaintiff's case, the plaintiff is afforded the safeguard of having all itsallegations taken as true and all inferences favorable to plaintiff will bedrawn. . . . If the court considers matters outside the pleadings before it in a12(b)(6) motion, the above procedure will automatically be converted into a Rule56 summary judgment procedure. Here there are further safeguards for the plain-tiff: in addition to having all of plaintiff's allegations taken as true, with all theirfavorable inferences, the trial court cannot grant a summary judgment unless thereis no genuine issue of material fact.

The procedure under a motion to dismiss for lack of subject matter jurisdic-tion is quite different. . . . [It] differs greatly for here the trial court may proceedas it never could under 12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual12(b)(1) motion is the trial court's jurisdiction;-its very power to hear the case;-there is substantial authority that the trial court is free to weigh the evidence andsatisfy itself as to the existence of its power to hear the case. In short, no presump-tive truthfulness attaches to plaintiff's allegations, and the existence of disputedmaterial facts will not preclude the trial court from evaluating for itself the meritsof jurisdictional claims. Moreover, the plaintiff will have the burden of proof thatjurisdiction does in fact exist.

Mortensen v. First Fed. Say. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977) (footnoteomitted).

105 Moore's, supra note 2, 38.36[2], at 38-319.106 A possible explanation for this difference is that federal courts are courts of limited

jurisdiction. See supra notes 72-75 and accompanying text. "Most state courts are courts ofgeneral jurisdiction, and the presumption is that they have jurisdiction over a particular con-troversy unless a showing is made to the contrary." C. Wright, supra note 72, § 7, at 22. Thissuggests that state courts are not under the same affirmative duty to dismiss for lack of juris-diction because their failure to do so would not be unconstitutional per se. Id. at 15.

However, most state constitutions delineate a jury trial right in a manner similar to theseventh amendment. The various constitutions "preserve the right of jury trial as it existed inEnglish History at some past time, either in 1791 when the seventh amendment was adoptedor, in the case of the states, at the date of the first state constitution." James, supra note 1, at655 (footnote omitted). Thus, the argument that enactments providing for a right to jury trialwere intended to protect only the jury trial right on the merits, and not a preliminary jurisdic-tional issue, is as compelling in state courts as it is in federal courts. The federal cases denyingjury trial for issues of personal jurisdiction are analogous, see supra text accompanying notes

JURY TRIAL RIGHT

cial conflict." 7 One early case supporting the right to jury trial wasJ.D. Hudgins & Brother v. Low, 10 8 where the court held that, for thepurpose of determining personal jurisdiction, the defendant was enti-tled to a trial by jury on the question of whether the defendant was aresident of the county in which the action was brought. In the court'swords:

The very existence of a plaintiff's cause of action may dependon the truth or falsity of a plea of privilege, and if he has the right,guarantied by the Constitution, of a trial by jury on the merits ofthe case, there can be no reason why the right of trial by jury onthe questions of fact on such a plea is not fully as sacred.'0 9

Similarly, Drea v. Carrington,"° an action for wrongful death inwhich the defendant filed a motion to dismiss based on improper ser-vice, held that the plaintiff was entitled to a jury trial on the jurisdic-tional issue. In Drea, there was a statute requiring that "issues of factfor the recovery of money . . . shall be tried by a jury, unless a jurytrial be waived."'" In contradistinction with the federal practice ofnot including jurisdictional facts within the purview of the federaljury trial statute," 2 the statute in Drea was held to control. The courtdetermined that the question of whether process had been properlyserved was an issue of fact to be decided by a jury."13

In direct conflict with Drea was Williams v. J.F. Ball Bros. Lum-ber Co.,114 which considered an almost identical jury trial statute.The court held that "[t]he provision [of the Code] for the trial of 'is-sues of fact arising in actions for the recovery of money,' etc., refers

57-64, since personal jurisdiction is not a constitutional limitation. Furthermore, the policy

arguments against extending the right of jury trial to jurisdictional issues are applicable to bothstate and federal courts. See infra text at accompanying notes 124-139.

107 For cases supporting the right to jury trial for jurisdictional issues, see Ex Parte Western

Ry., 283 Ala. 6, 214 So. 2d 284 (1968); Preston v. Denkins, 94 Ariz. 214, 382 P.2d 686 (1963)Ball v. Beaty, 223 S.W. 552 (Tex. Civ. App. 1920); O'Donnell v. Beechnut Packing Co., 45

App. D.C. 425 (1916); Fischer v. Munsey Trust Co., 44 App. D.C. 212 (1915); Kamp v. Bart-

lett, 164 Il1. App. 338 (1911); J.D. Hudgins & Bro. v. Low, 42 Tex. Civ. App. 556, 94 S.W. 411(1906); Drea v. Carrington, 32 Ohio St. 595 (1877).

For cases denying a jury trial for jurisdictional issues, see Wetmore v. Wrynn, 32 Conn.

Supp. 249, 349 A.2d 857 (Super. Ct. 1974); Williamson v. Williamson, 155 Ga. App. 271, 270S.E.2d 692 (1980), aft'd, 247 Ga. 260, 275 S.E.2d 42, cert. denied, 454 U.S. 1097 (1981); Watts

v. Kegler, 133 Ga. App. 229, 211 S.E.2d 177 (1974); Williams v. J.F. Ball Bros. Lumber Co.,

105 Kan. 284, 182 P. 552 (1919); McGehee v. Brown, 3 La. Ann. 272 (1848).108 42 Tex. Civ. App. 556, 94 S.W. 411 (1906).109 Id. at 557, 94 S.W. at 412.110 32 Ohio St. 595 (1877).

"'I Id. at 602 (quoting Ohio Code of Civ. P. § 263).112 See supra text accompanying notes 57-64.113 Drea, 32 Ohio St. at 602.114 105 Kan. 284, 182 P. 552 (1919).

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solely to issues of fact involving the merits of the action, and not toissues of fact upon which the jurisdiction of the court depends."' 15

Such jurisdictional facts were found to be properly tried by the court.Accordingly, the court denied the motion for jury trial.

A recent Connecticut case, Wetmore v. Wrynn, 1 6 supports thisview. In Wrynn, the Connecticut Superior Court held that "it is theultimate issue or issues of facts decisive of the merits of the case thatare triable by a jury and not a preliminary jurisdictional questionraised by a plea in abatement."' 17 In Connecticut, there is a statutoryright to a jury trial for civil actions that were not "cognizable in eq-uity" prior to 1880.11" Since an issue of fact raised by a motion todismiss was not cognizable in equity prior to 1880,' the statutewould seem to require a jury trial for the jurisdictional issue. TheWrynn court, however, determined that this right did not extend topreliminary questions. It held that a plea in abatement is not a viableaction at all, but a procedural part of the entire action. The term''case," as used in the statute listing classes of cases triable by jury,was interpreted to mean the action as a whole and not a partthereof. 120

The rationale underlying the state cases favoring a jury trial isthat an issue essential to the maintenance of the action is as importantas an issue going to the merits of the action, and therefore a factualdispute in a jury triable case should be determined by a jury.

The contrary position is that the right to a jury trial is confinedto the cause of action on the merits. This appears to be the betterview, and the view adopted by the federal courts. 12 1 Under this ap-proach, the right to a trial by jury on the merits is not being abridgedsince only the jurisdictional issue is being determined by the court.Once jurisdiction is proven, the constitutional guarantee of a trial byjury remains intact. Furthermore, the mere existence of a question offact does not make an issue jury triable even in a jury triable case.There are numerous examples where judges decide issues of fact with-

'15 Id. at 288, 182 P. at 554.116 32 Conn. Supp. 249, 349 A.2d 857 (Super. Ct. 1974).'17 Id. at 254, 349 A.2d at 859-60. A plea in abatement is a common law plea that, "with-

out disputing justice of plaintiff's claim, objects to place, mode or time of asserting it." Black'sLaw Dictionary 1037 (5th ed. 1979). In the federal courts, pleas in abatement have been abol-ished by Fed. R. Civ. P. 7(c).

118 Conn. Gen. Stat. Ann. § 52-215 (West 1984).119 Wrynn, 32 Conn. Supp. at 255, 349 A.2d at 860.120 Cf. Justak v. Bochnowski, 181 Ind. App. 439, 445, 391 N.E.2d 872, 876 (1979) (for

purposes of right to jury trial, term "trial" contemplates a final adjudication of the case on themerits), cert. denied, 449 U.S. 828 (1980).

121 See supra notes 57-64 and accompanying text.

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out a jury.12 Similarly, there are procedural devices, such as non-mutual collateral estoppel, directed verdicts, summary judgments, thepower to set aside verdicts in part, and remittitur that allow judicialdiscretion over the jury.2 3 In summary, the mere existence of a dis-puted factual issue, in a case that is jury triable on the merits, is not acompelling reason for providing a jury trial where no such right isconstitutionally guaranteed.

III. POLICY CONSIDERATIONS

The constitutional right to a jury trial for civil actions is one ofour fundamental rights. Justice Story, addressing the seventh amend-ment, wrote:

[I]t is a most important and valuable amendment; and places upon

122 Examples of issues of fact that are generally not triable by jury in the federal courtsinclude the following:

[T]hose relative to jurisdiction, venue and forum non conveniens; the existence andeffect of foreign law where not judicially noticeable; the competency of a witness;issues of fact, including damage, in a default case; whether or not there has beensuch wilful and malicious negligence in a tort case as to justify issuance of a certifi-cate of close jail execution; and issues relative to civil contempt.

5 Moore's, supra note 2, 38.38[4], at 38-339 to 40. Furthermore, there are numerous exam-ples of cases where no jury trial right exists. Factual disputes in those actions are settled by thecourt.

[I]n this country no jury right exists in equity, admiralty or maritime matters,immigration cases, habeas corpus petitions. Federal Tort Claims Act cases, FairLabor Standards Act injunctions, NLRA cases, or Longshoremen and HarborWorkers cases. Administrative agencies and the Tax Court decide issues withoutassistance of juries. . . . If a federal judge, sitting alone, is qualified to decide theissues of fact and law relating to contract when specific performance is sought,why is the same judge not qualified to decide the same issues without a jury whenonly damages are demanded?

Devitt, supra note 1, at 508-09. The short answer is that the judge is qualified. This fact isirrelevant, however, because there is clearly a seventh amendment right in a damages action.Where the issue is arguably not within the scope of the seventh amendment, however, the mereexistence of a factual dispute does not compel a jury trial. Although the seventh amendmentapplies only to courts of the United States, see 5 Moore's, supra note 2, 38.08[5], at 38-46,the right to trial by jury is applied in state courts in essentially the same manner. See supranote 106.

123 Comment, supra note 53, at 607-08; cf. Wall v. Chesapeake & 0. Ry., 95 F. 398 (7thCir. 1899). In Wall, the court compared a jurisdictional motion that does not bar a new actionwith a procedural motion that does.

There are many matters pending in the progress of a case which are dailydetermined upon motion that are much more important in affecting substantialrights than a motion to set aside an irregular service of process. Take, for instance,the motion for a new trial upon newly-discovered evidence after the plaintiff hasrecovered a substantial verdict. The court, in its discretion, may set aside the ver-dict upon a motion. Whether the plaintiff will ever be able to obtain another isuncertain, and yet no one would think of objecting to trying such a question beforethe court upon motion supported and opposed by affidavits.

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the high ground of constitutional right the inestimable privilege ofa trial by jury in civil cases, a privilege scarcely inferior to that incriminal cases, which is conceded by all to be essential to politicaland civil liberty.124

In recent years, however, this right has come under increasingcriticism.'25 The three major arguments against the civil jury havebeen (1) juror incompetence; (2) juror prejudice; and (3) judicial econ-omy. 126 Juror incompetence is especially relevant in cases that arefactually complex.12 7 Some commentators have gone even furtherand have questioned the very ability of the jury to perform as factfinder in any context.'28 Jerome Frank, for example, has asked:

Is it likely that twelve men, summoned from all sorts of occupa-tions, unaccustomed to the machinery of the law, unacquaintedwith their own mental workings and not known to one another,can, in the scant time allowed them for deliberation, do as good ajob in weighing conflicting testimony as an experienced judge? 2 9

If accurate, this analysis would be as applicable to jurisdictionalquestions as to the merits of the action. In the jurisdictional context,however, the consequences may be of greater significance since thevery power of the court to hear a case would be determined by a bodyless competent than the court itself.

The second major charge is that of juror prejudice. "It has beencontended that jurors, either consciously or subconsciously, often donot perform the task of fact finder in an objective manner, but ratherare influenced by their personal likes, or dislikes, for the appearance,views, or social position of the litigants."' 130 Since a jurisdictional is-sue goes to the very right of the case to be heard, and since a juror'spredisposition toward a particular party would tend to influence hisdecision on the preliminary motion in favor of that party, then jurorprejudice argues against allowing such a threshold issue to be deter-mined by a jury.

The third factor is that of judicial economy. Undeniably, a trial

124 2 J. Story, Commentaries on the Constitution of the United States 574 (1858).125 See Jerome Frank, Courts on Trial: Myth and Reality in American Justice 108 (1949);

Devitt, supra note 1, at 496; Redish, supra note 1, at 488. But see Kalven, The Dignity of theCivil Jury, 50 Va. L. Rev. 1055 (1964).

126 Redish, supra note 1, at 502.127 Id. at 505.128 Id. at 504-05; Jerome Frank, Law and the Modern Mind 179 (1930). But see Kalven,

supra note 125, at 1064-66 (arguing that statistical evidence does not support arguments ofjury incompetence).

129 Jerome Frank, supra note 128, at 179.130 Redish, supra note 1, at 502. But see Kalven, supra note 125, at 1062 (arguing that most

jurors "become highly serious and responsible toward their task").

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by judge is more expeditious than a trial by jury,'II saving both timeand money for the judicial system and the parties involved.I32 This isa particularly important consideration in view of today's crowdedjury dockets. A jury trial for jurisdictional issues could mean callinga jury solely for the preliminary motion: if the jurisdictional claimwere defeated, the court would be expending its valuable time andmoney in merely coming to the conclusion that it does not have thepower to hear the suit.

These criticisms of civil juries are criticisms of a right guaranteedby the Constitution. Where, as in jurisdictional issues, there is noseventh amendment guarantee, the arguments against jury trial be-come even more persuasive. At the very least, they should serve asfactors against extending the right to jury trial to preliminary jurisdic-tional issues.

An analogous argument against a jury trial right for jurisdic-tional issues is found in the Federal Rules of Civil Procedure 133 andsimilar state provisions' allowing for an early determination of fac-tual issues arising on a motion to dismiss. Rule 12(d) states that thedefenses enumerated in 12(b)-for our purposes, lack of jurisdictionover the subject matter, lack of jurisdiction over the person, and insuf-ficient service of process-"shall be heard and determined before trialon application of any party, unless the court orders that the hearingand determination thereof be deferred until the trial." 1 35 The purposeof rule 12 is to "expedite and simplify the pre-trial phase of federallitigation while at the same time promoting the just disposition ofcases. It does so in part by providing a streamlined system for thepresentation of defenses and objections."' 36 Requiring an extra trial,only to determine whether the court has jurisdiction, would clearly

131 Professor Kalven has estimated that the average bench trial would be 40% less time

consuming than a jury trial of the same case. H. Zeisel, H. Kalven, & B. Buchholz, Delay inthe Court 75-78 (1959).

Jury trials take longer than court trials. In a bench trial it is not necessary forcounsel to present the same amount of evidence to familiarize the court with theconcepts as is often necessary in jury trials. Arguments are usually much shorterand the judge can read depositions on his own time, rather than listening to coun-sel consume everyone's time reading them into the record. Issues can more easilybe bifurcated. There is no need for instructions, and naturally no jury deliberation.A bench trial is overwhelmingly more efficient than a jury trial.

Devitt, supra note 1, at 509 (footnote omitted).132 See Landis, Jury Trials and the Delay of Justice, 56 A.B.A. J. 950, 951 (1970) ("[t]he

result of this consumption of time is that jury trials necessarily cost more").133 Fed. R. Civ. P. 12.134 See, e.g., N.Y. Civ. Prac. R. 3211(c) (McKinney 1970 & Supp. 1970-1984).135 Fed. R. Civ. P. 12(d).136 5 C. Wright & A. Miller, supra note 15, § 1342, at 516.

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frustrate the purpose of the rule. 3 7 This is more than just a matter ofjudicial economy; it is the right of the party to have his defenses orobjections promptly decided, thereby possibly avoiding costlylitigation. 38

The determination of the defenses enumerated in rule 12(b) hasbeen deferred until trial where the court holds that determination tobe inextricably tied to the case on the merits.'39 Thus, it is within thediscretion of the court to decide a jurisdictional motion to dismissbefore or during a trial. That discretion is generally exercised onlywhen it is impossible to determine the jurisdictional issue without alsodetermining the merits. When it is to be decided before the merits, itis a frustration of the purpose of the Federal Rules of Civil Procedureto require a trial by jury for the preliminary motion.

CONCLUSION

Both Cerrato v. Thurcon Construction Corp. and the practicecommentary to New York CPLR 3211 grant a jury trial for a jurisdic-tional motion on the basis of whether an adverse judgment on themotion will permanently bar a new action. This Note contends that itis the nature of the issue to be tried that determines jury trial rightand not the nature of the underlying action. Only if the jurisdictionalissue is constitutionally guaranteed a jury trial does such a right exist.

The weight of authority is against allowing a jury trial for juris-dictional issues. The cases hold that the constitutional guarantee of ajury trial was not meant to extend to preliminary questions, but isreserved for the cause of action on the merits. Furthermore, sincejurisdictional questions concern the very power of the court to hearthe case, such questions are properly determined by the judge.

Factors such as juror incompetence, juror prejudice, and judicial

137 See Bailey's Bakery, Ltd. v. Continental Baking Co., 235 F. Supp. 705, 714 (D. Hawaii1964). ("since want of Federal jurisdiction renders nugatory proceedings on the merits, tocompel the submission of jurisdictional-facts issues for jury determination is contrary to boththe spirit and letter of the Rules"), affd per curiam, 401 F.2d 182 (9th Cir. 1968), cert. denied,393 U.S. 1086 (1969), overruled on other grounds, Kirihara v. Bendix Corp. 306 F. Supp. 72(D. Hawaii 1969).

138 Id. This is particularly true where there will be complex and costly litigation on themerits. For example, in one antitrust case the Fifth Circuit stated:

[Plaintiffs'] claim that they are entitled to a trial on the merits to more fullydevelop their jurisdictional assertions . . . [c]ompet[es] against . . . the realitythat antitrust suits frequently entail enormous expense. Win, lose, or draw regard-ing the final outcome, the very fact of trial may result in crushing costs and hard-ships to the defendant.

McLain v. Real Estate Bd., 583 F.2d 1315, 1323 (5th Cir. 1978), vacated and remanded onother grounds, 444 U.S. 232 (1980).

139 See supra note 93.

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economy argue against extending jury trial right to preliminary juris-dictional issues. Finally, the purpose behind procedural motions todismiss and immediate trial of preliminary issues would be frustratedby requiring a jury trial on these questions.

Steven Kessler

the right to a jury trial for jurisdictional issues

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