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THE RIGHT TO A JURY TRIAL FOR

JURISDICTIONAL ISSUES
INTRODUCTION

Commentators have long debated the scope of the constitutional right to a trial by jury in civil actions.' However, they have rarely considered whether a jurisdictional issue in a case that is jury triable on the merits should also be triable by a jury. 2 This question was addressed recently by the Appellate Division of the New York State Supreme Court in Cerrato v. Thurcon Construction Corp. ,' which held that a jury trial was appropriate where an adverse judgment on the jurisdictional motion would permanently bar a new action. Part I of this Note examines the Cerrato decision in light of the applicable New York Civil Practice Law and Rules ("CPLR"). It concludes that the right to a jury trial for a jurisdictional motion depends on the nature of the issue in question, and not on whether an adverse judgment on the motion permanently bars a new action on the merits. Part II explores the broader question of whether there is any constitutional guarantee of trial by jury for jurisdictional issues. It also draws relevant distinctions between federal and state courts and the various types of jurisdiction. This Note argues that the constitutional right to trial by jury should be confined to the merits of the case, and should not extend to preliminary jurisdictional issues. Finally, Part III argues that the factors of judicial economy, juror competence, and juror prejudice militate against calling a jury to decide jurisdictional 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 the Seventh 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 Hastings L.J. 1 (1976); Redish, Seventh Amendment Right to Jury Trial: A Study in the Irrationality of Rational Decision Making, 70 Nw. U.L. Rev. 486 (1975); Wolfram, The Constitutional History 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 as Moore's]; Note, Trial by Jury of Preliminary Jurisdictional Facts in Federal Courts, 48 Iowa L. 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 the Cerrato 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, commentary 3211:48 (McKinney Supp. 1970-1984).

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CERRATO V. THURCON CONSTRUCTION CORP.

In Cerrato v. Thurcon Construction Corp.,4 the court held, by a 3to-2 margin, that a plaintiff has a right to a jury trial on an issue of personal jurisdiction raised on a motion to dismiss, where a new action on the merits would be barred by the statute of limitations. New York Civil Practice Rule 3211 not only enables a party to raise a motion to dismiss,' but it also authorizes immediate trial of a factual issue raised by the motion.' However, since rule 3211 is silent as to the mode that the trial should take,7 the Cerrato court looked to the practice commentary to CPLR 3211 for guidance, which states: In allowing immediate trial of a fact issue arising on a 3211 motion, 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 directs jury trial if the issue is "triable of right" by jury, thus begging the question. 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; and 3. The nature of the motion whose fact issue is to be tried. If no part of the action itself, such as where it is one in equity, would be triable by jury, no fact issue being tried on any 3211 motion in the case need be tried by jury. If the case is triable by jury, such as a law action seeking money, and jury trial has been duly demanded or the time in which to demand it is still open (see CPLR 4102), item #2 on the above list is satisfied and #3 must be negotiated. If the ground of the motion is such that resolution of the 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 on a tort claim. The defendant's answer included the affirmative defense of lack of jurisdiction based on improper service. There was a factual dispute as to whether the person served was authorized to accept service of process. At the time of defendant's answer, the statute of limitations on the tort claim expired. Subsequently, plaintiff demanded a jury trial on the validity of service question on the ground that a new action was time barred. Hence, plaintiff claimed

that the issue, while one of jurisdiction only, was as dispositive as an adverse judgment on the merits: If the claim on the merits deserved a jury trial, then this jurisdictional issue, which, in effect, could decide the case, deserved a jury trial as well. The majority accepted this analysis and 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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and preclude suit from being brought upon the cause again in New York, a jury trial will be required if either side insists upon it. See CPLR 2218. Grounds that fall under this category would be release, res judicata, payment, statute of limitations, etc. If the grant of the motion dismissing the case would not prevent suit from being brought again, jury trial of the factual issue is not required. Examples of these grounds would be lack of jurisdiction (personal, rem or subject matter), temporary disability of a party, other action pending (CPLR 3211[a][4]), failure to join a party, etc. Even on these latter grounds, however, a situation can arise in which jury trial should be granted. If it appears that a dismissal for lack of personal jurisdiction, for example, will take place at such time as would prevent plaintiff from suing anew because of the statute of limitations, see C3211:41, the impact of the dismissal would be permanently to oust the plaintiff from the New York courts and the fact issue on the jurisdictional motion should therefore be tried by jury.' Application of the practice commentary to Cerrato supports the right to a jury trial on the jurisdictional motion because (1) the action was 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 of defendant would permanently oust the plaintiff from the New York courts.11 Relying strongly on this analysis, the Cerrato court granted 12 a jury trial on the jurisdictional motion. The decision, however, raises some complex questions. The Cerrato dissent points out that the right to a jury trial of an issue raised on motion is controlled by CPLR 2218,13 which grants a jury trial 1 only where the issue is "triable of right by jury." 4 Whether an issue is triable of right by jury should be determined according to the same analysis that would be used to decide any jury trial question. 5 There8 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 a

referee. If the issue is triable of right by jury, the court shall give the parties an opportunity to
demand 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 in which 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 trial exists only to the degree that such trials were constitutionally authorized prior to the 1938 constitution. 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, Handbook on New York Practice 487 (1978). Similar terminology was used for the last time in the constitution of 1894. Id. Thus, there is a constitutional guarantee of jury trial for all cases that 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), embodies this constitutional right to jury trial and "enlarges upon [it] by listing types of actions in which the parties have a right to a jury trial, whether or not such a right is included in the constitutional guarantee." N.Y. Civ. Prac. Law 4101, commentary (McKinney 1963). Section 4101 provides: In the following actions, the issues of fact shall be tried by a jury unless a jury trial is waived or a reference is directed under section 4317, except that equitable defenses and equitable counterclaims shall be tried by the court: 1. an action in which a party demands and sets forth facts which would permit a judgment for a sum of money only; 2. an action of ejectment; for dower; for waste; for abatement of and damages for a nuisance; to recover a chattel; or for determination of a claim to real property 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 by express 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, would appear to require the jury trial in an 'action' and not in the preliminary procedures leading up to 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 triable of right by jury" cannot be read as extending the right to jury trial beyond that which exists under 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 the Constitution or by statute. 9 C. Wright & A. Miller, Federal Practice & Procedure 2301, at 11 (1971). The legislative history of N.Y. Civ. Prac. Law 2218 is unhelpful, saying only that "issues of fact decided under this rule will be narrow." Second Preliminary Report of the Advisory Committee on Practice and Procedure, Leg. Doc. No. 13, at 190 (1958). Section 2218 was apparently not meant to supersede other provisions, such as rule 108 of the Rules of Civil Practice 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, at 190. Rule 108, directing that questions of fact arising on a motion to dismiss be tried by a jury or referee, was not to "be construed so as to deprive a party of his right to trial by jury of any issue as to which such right is guaranteed by the Constitution." Finkel v. Finkel, 8 A.D.2d 950, 950, 190 N.Y.S.2d 494, 495 (1959). Thus, 2218 preserved only the jury trial practice with respect to motions that existed at the time of its adoption. This right has not been extended 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 procedural issues. 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); 5 Moore's, supra note 2, 38.36, at 38-309 (applying seventh amendment analysis to jurisdictional issues).

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

In determining whether one has a constitutional right to a jury trial, the relevant factor is the nature of the issue to be tried S-in
Cerrato, 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 whether the timing of the motion is such that a new action would be barred. 0
By following the logic of the practice commentary, the Cerrato court

erroneously "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 basic unit in determining the existence of a right to jury trial is not the case. It is the particular issue within 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 Amendment question depends on the nature of the issue to be tried rather than the character of the overall action"). Ross was a stockholder's derivative suit. A derivative action is based upon a primary right of the corporation, but is asserted on its behalf by the stockholder because of the corporation's failure to act upon the primary right. Black's Law Dictionary 399 (5th ed. 1979). Historically, a derivative suit was considered to be an equitable action and, therefore, not triable by jury. The underlying corporate claim, however, was legal in nature. In Ross, the court divided the derivative action into two subactions: the first concerned the stockholder's right to sue 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, one entitling the corporation to a jury trial under the Seventh Amendment, the right to a jury is not forfeited merely because the stockholder's right to sue must first be adjudicated 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 to Cerrato, the jurisdictional motion would be treated independently from the underlying tort claim. Therefore, the right to a jury trial on a jurisdictional motion would depend not on whether a new action was barred, see supra text accompanying notes 8-11, but on whether there 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 can see no basis for requiring that the question be tried by a jury." Cerrato, 92 A.D.2d at 96, 459 N.Y.S.2d at 769 (Bloom, J., dissenting); see Shippey v. Berkey, 6 A.D.2d 473, 475, 179 N.Y.S.2d 366, 368 (1958) ("[o]n this preliminary and narrow jurisdictional issue... the parties 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 statute of limitations are jury triable on the basis that new actions would be barred were the defendants to prevail. N.Y. Civ. Prac. R. 3211, commentary 3211:48 (McKinney 1970). It may seem inconsistent then to deny a jury trial for a jurisdictional motion where a new action would also be barred, "[s]ince a statute of limitations disposition has in common with a jurisdictional 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 trial should 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 trial for 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 day before the statute of limitations expired, it would have been denied; yet had it been demanded a day later, it would have been granted because a new action would have been barred. 2
tions of Actions 399, at 548-49 (1948), than for jurisdictional ones, see supra note 19 and accompanying text. Lending credence to its position, the practice commentary draws an analogy to the federal courts: There is some case law from the federal courts suggesting that a threshold issue that has the capacity-depending on its resolution-to put an end to the case should be triable by jury if the case on its merits would be so triable. A factual dispute on a statute of limitations issue, for example, was held jury triable in Johns Hopkins 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 to jury trial for factual disputes arising out of a statute of limitations motion, however, is not as well established as the practice commentary implies. There are "discovery" cases holding that the 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.2d 563 (1973). For example, in a medical malpractice action, the statute of limitations begins to run when the plaintiff discovers the alleged negligent act, and not at the point in time when the negligent act actually occurred. E.g., id. Factual disputes arising as to the time of discovery are tried by the court. See Owens, 342 F.2d at 819 ("the issue presents a preliminary matter for the court, rather than the jury, since it does not reach the merits of the claim but instead involves the very existence of the claim itself"); Lopez, 62 N.J. at 275, 300 A.2d at 567 ("[t]he determination by the judge should ordinarily be made at a preliminary hearing and out of the presence 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, 429 U.S. 1038 (1977)). These cases hold that there is no jury trial right despite the existence of disputed issues of fact that, if decided in favor of defendant, would permanently bar a new action. Unless there is a constitutional right to a jury trial for the issue, no such right should be guaranteed. The fact that 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 determination 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 jurisdictional defense under CPLR 3211 (b), which will bring it to early adjudication. The plaintiff 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 limitations' consequences that may attend such a postponement . ... N.Y. Civ. Prac. R. 3211, commentary 3211:41 (McKinney 1970). The plaintiff should also spare no effort in bringing suit early enough to avoid the Cerrato problem. The New York State Law Digest, considering this very point, concludes that "[ilt would not be a surprise were another court, faced with a similar situation, to hold that the plaintiff waived jury trial of the jurisdictional issue by not doing things with enough dispatch to assure that should the issue arise, there would be ample time to sue again should it succeed." Fact Issue, supra note 3, at 2; 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 comencement of trial).

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A view contrary to the holding in Cerrato and the practice commentary was expressed in Marable v. Robinson.23 In Marable, the court reasoned that the purpose of providing a jury trial on a motion to dismiss was simply to protect the right to a jury trial guaranteed by the constitution.24 The practice commentary to CPLR 221825 states that "if the issue 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 be the mode if any party insists."26 The Marable court, however, rejected the interpretation of the practice commentary in favor of the express language of section 2218, and construed that section to mean that the issue raised on the motion must carry a jury trial right, not that the main action or case must be triable by jury. 7 The Cerrato majority supported its position by relying on prior cases that recognized a jury trial right. However, these cases are inapposite. Barker v. Conley2 I held that an immediate trial of a factual issue arising in a preliminary motion should be ordered only where an adverse judgment on that motion would put an end to the case. 29 The court also noted that such a disputed factual issue could properly be sent to the jury.3" Barker is questionable authority for two reasons: 31 First, the mode of trial-by court or jury-was not in question;
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 factual dispute as to the circumstances surrounding the estoppel claim. The plaintiff requested that the factual questions be determined by a jury. The court held that since the factual issues were

equitable in nature, a jury trial was improper. At first glance, the equitable nature of Marable
seems to distinguish it from Cerrato, but the case is quite analogous. Both cases demanded a jury trial for an issue that is normally tried by the court on the ground that the statute of limitations would permanently bar a new action on the merits. In demanding a jury trial, the

plaintiffs in both cases relied on the practice commentary to N.Y. Civ. Prac R. 3211. See supra text accompanying note 8. In Marable, however, the court rejected the interpretation of the
practice 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 accompanying 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 held
that this question of fact could be submitted to a jury if it could bring about an end to the

litigation. The court specifically mentioned a general release, the statute of limitations, and the
statute of frauds as examples of defenses that would terminate all further proceedings. Id. at 46, 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 of fact to the jury.3 2 Second, even assuming that Barker decides that a right to jury trial exists for any preliminary fact issue where an adverse judgment would put an end to the case, Barker does not support the holding in Cerrato. The issue in Cerrato is a jurisdictional issueone that does not terminate the litigation per se. It is only the independent running of the statute of limitations that bars any future action. 33 In Marshall,Bratter,Greene, Allison, & Tucker v. Mechner, the court noted that the provision for immediate trial of factual issues raised on a summary judgment motion 34 "does not vest discretion in the court to require the trial of such issues of fact before any type of fact finder other than would be required were there no motion for summary judgment."3 5 The court then stated that since this was "an action at law in which a jury trial has been demanded, material issues of fact cannot be referred to a referee for trial." 3 6 Marshall,Bratter is distinguishable from Cerrato because it involved a summary judgment motion. A party can prevail on a motion for summary judgment if he can convince the court that there are "no material issue[s] of fact outstanding."3 A material issue of fact is defined as one which substantially involves the merits.38 A jurisdictional motion, on the other hand, is not material; it is a preliminary motion that must be resolved before the action can be reached on the merits. Finkel v. Finke139 stated that the rule permitting pretrial determitional dimensions. The Barker court "seem[ed] more to assume than to hold that a jury is required in these cases. It was more concerned with when a court should direct the immediate trial of a fact issue arising on a motion than it was with the form the trial is to take." Fact Issue, supra note 3, at 1; see infra note 32. Thus, it is unclear whether Barker even compels a jury 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 the speedy disposition of questions in bar of recovery was the end in view." Barker, 267 N.Y. at 46, 195 N.E. at 678. Ironically, this is also a reason behind having a judge decide the issue in Cerrato. 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 that he was an unemancipated minor at the time of the accident. Rule 108 of the Rules of Civil Practice 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 issues involved 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 construed so as to deprive a party of his right to a trial by jury of any issues as to which such right is guaranteed by the Constitution. . . .. Thus, in " deciding whether a party may have a jurisdictional issue tried before a jury, the Finkel court would look to see whether such a right is provided for by the constitution.4 1 The next part of this Note will address whether there is a guaranteed right to jury trial for factual issues raised by a motion to dismiss for lack of jurisdiction. The Cerrato dissent argued that the nature of the issue-there, the preliminary jurisdictional issue-determines the right to jury trial.42 The dissent maintained that a jurisdictional motion does not carry a jury trial right.4 3 The scant New York case law on the subject is in accord with the dissent's view,' as is the practice commentary to CPLR 3211, which lists lack of jurisdiction as an example of an issue that does not warrant a jury trial.45 Since there is no statutory right to jury trial on this issue, none should be granted unless it is constitutionally required.46 Therefore, the question becomes 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 "in suits 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 accompanying 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 a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules 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 thus preserved is the right which existed under the English common law when the Amendment was adopted"). The historical approach is not to be rigidly applied, however. Allowance must be made 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

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did not carry a jury trial right in 1791, when the seventh amendment

was adopted, or in 1938, when the Federal Rules of Civil Procedure

were adopted,4 9 there is no constitutional right to a jury trial. To be jury triable, the right asserted and the remedy demanded must be legal, not equitable, in nature.5" A jurisdictional issue is neither legal nor equitable within the meaning of the common law.5" Instead, it is a preliminary issue that must be determined before the action can be heard on the merits. If a jurisdictional issue arises in an action of an equitable nature, there is no basis for seeking a jury trial since the seventh amendment preserved only the common law right to a jury trial and an equitable action carried no such right.52 If the same issue arises in an action at law, the question becomes whether the seventh amendment guarantee of trial by jury extends to preliminary jurisdictional issues-in other words, whether a jury should be called solely to determine whether or not a court has the power to hear a case. There are no English common law precedents supporting the view 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 to jury 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 have been tried to the jury in the law courts just priorto the adoption of the codes, either party may now claim such trial as of right." C. Clark, Code Pleading 16, at 92 (2d ed. 1947); see also Ross v. Bernhard, 396 U.S. 531, 538 n.10 (1970) (directing courts to examine "the pre-merger custom with reference to such questions"). Determining jury trial right on the basis of premerger custom, instead of English common law at 1791, has been criticized as bypassing the common law jury trial practice to which the seventh amendment refers. For example, post-1791 actions at law are relevant only to the extent that such actions represent evolution from writs that existed in 1791. . . . the test is may objectionable because it misleadingly implies that "pre-merger custom" ... be considered independently of history and thereby ignores the need to justify such considerations by reference to the jury trial practice of the common law, a step that the seventh amendment commands. Note, The Right to Jury Trial in Enforcement Actions Under Section 502(a)(1)(B) of Erisa, 96 Harv. L. Rev. 737, 747 n.73 (1983); see also Wolfram, supra note i, at 641-42 & n.8 (criticism Bernhard). From a practical of the premerger test espoused by Wright & Miller and Ross v. standpoint, 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 almost two centuries that have intervened." Id. at 643. However, where, as here, the right did not exist 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 were administered." 51 See 5 Moore's, supra note 2, 38.11[5], 38-78 to 86 (listing the various legal and equitable issues in England at the adoption of the seventh amendment). 52 See supra notes 47-51 and accompanying text.

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may be explained by the fact that "the pre-revolutionary English common law courts were courts of general jurisdiction so the question of jurisdiction predicated upon contested facts seldom if ever arose." 53 The weight of authority of the cases that arose prior to the merger between law and equity is against submitting a jurisdictional issue to the jury.54 The cases either deny the right to jury trial for a jurisdictional issue55 or place discretion in the trial judge to decide what mode of trial is appropriate. 6
a. PersonalJurisdiction Wall v. Chesapeake & 0. Ry.57 dis-

cussed the constitutional dimensions of the claim of a right to a jury trial for issues pertaining to personal jurisdiction.5 In Wall, the " plaintiff sued on a tort claim. The defendant moved to quash the summons on the ground that the person served was not authorized by law 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 law courts were the Exchequer, Common Pleas, and King's Bench. The method for initiating a suit in the common law court was the writ system. A separate writ existed for each civil action, and presenting the wrong writ meant losing the suit. However, "[b]y the 1790's a plaintiff could sometimes forego obtaining an original writ and could instead proceed directly to serving process upon a defendant by capias in Common Pleas or by bill of Middlesex or latitat in King's Bench." Comment, Complex Civil Litigation and the Seventh Amendment Right 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 brought the defendant physically into court, so modern issues as to whether a defendant, particularly a corporation, is subject to service of process were unknown. And issues as to venue in the English courts, each of which had territorial jurisdiction throughout England, would generally be unimportant, whereas in the multiple federal district courts, subject to multiple venue statutes, the problem of venue is often 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 the merits would be infringed upon by having the court decide the jurisdictional issue. See infra note 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 a constitutionally defined power like subject matter jurisdiction, see infra notes 65-75 and accompanying text, a court is under no affirmative duty to dismiss for lack of personal jurisdiction. In fact, personal jurisdiction can easily be waived. See Fed. R. Civ. P. 12(h)(1). A counter argument is that personal jurisdiction is easily separated from the merits and therefore can be determined by a judge without jeopardizing the jury trial right on the main action. See infra note 93 and accompanying text. For other premerger cases denying a jury trial right for issues 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 without a jury: The constitutional right to a jury trial obtains whenever there is any question at issue involving the life, liberty, or property of the citizen. But a motion to quash a service of summons, or any other process or order, for insufficiency in the service, involves no such substantial right.59 PeperAutomobile Co. v. American Motor Car Sales Co. 6 was an action to recover damages for breach of contract. The defendant moved to quash the return of the summons on the ground that the defendant was not engaged in business in the state and the person served was not its agent or representative. The court held that jurisdictional issues were not within the scope of either the seventh amendment or a federal statute expressly providing that issues of fact in actions at law be tried by a jury. 6' The court stated:
[T]here is
. .

.no valid reason appearing why the court, without

the intervention of a jury, may not and should not proceed to an investigation and decision of such question touching its jurisdiction so acquired over the person of defendant. The question presented is not such an issue of fact as entitles the plaintiff to a jury trial thereof as a matter of right under the constitution and the
statute.62

Wall and Peper, thus, argue that the constitutional right of jury trial is confined to the cause of action on the merits and does not extend to preliminary issues of personal jurisdiction. Since preservation of the right to a jury trial on the merits is "surely the great objec3 tive of the Seventh Amendment, ' 6 extending jury trial to preliminary jurisdictional issues not only exceeds the constitutional objective, but may actually impair it by delaying a determination on the merits.' b. FederalSubject Matter Jurisdiction- Where the factual dispute involves federal subject matter jurisdiction,65 the premerger cases
Wall, 95 F. at 403. 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 be by jury, except in cases of equity and of admiralty and maritime jurisdiction . 62 Peper, 180 F. at 248. 38.36[t], at 38-313. 63 Moore's, supra note 15, 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 consideration 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 this Constitution, the Laws of the United States, and Treaties made, or which shall be
59 60

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hold that there is no right to a jury trial. 66 The leading case on the subject is Wetmore v. Rymer,67 where the Supreme Court held that the trial court may properly determine the question of the jurisdictional amount needed for subject matter jurisdiction without submitting it to the jury:
[T]he court might doubtless order the [jurisdictional] issue to be tried by the jury ... But the questions might arise in such a shape that the court might consider and determine them without the intervention of a jury. And it would appear to have been the intention of Congress to leave the mode of raising and trying such issues to the discretion of the trial judge.6 8

The Supreme Court applied this rationale to diversity jurisdic6 tion in Gilbert v. David. 9 In Gilbert, the plaintiff brought suit in a

district court to recover for breach of contract. The defendant filed a motion 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 Supreme Court, citing Wetmore, held that the mode of trial for jurisdictional questions is within the discretion of the trial judge who might, if he saw fit, "dispose of tl~e issue upon the testimony which was fully
heard upon that subject." 7
made, under their Authority;-to all Cases affecting Ambassadors, other public Ministers and Consuls;-to all Cases of admiralty and maritime Jurisdiction;-to Controversies to which the United States shall be a party;-to Controversies between two or more States;- between a State and Citizens of another State;-between Citizens of different States;-between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, 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 subject 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 on diversity of citizenship it is necessary to show that there is a minimum amount in controversy

before 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 (3d Cir. 1927); Sclarenco v. Chicago Bonding Co., 236 F. 592 (W.D. Ky. 1916); Maxwell v. Atchison, 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.

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These decisions contend that questions that go to the very power of the court to hear the case are best left to the discretion of the judge to determine what mode of trial is appropriate.7 ' This argument is strengthened by the fact that federal courts are courts of limited jurisdiction. 2 They can only hear cases within the judicial power of the Constitution or that granted by Congress. 3 Since a federal court cannot hear a case when it lacks the requisite subject matter jurisdiction,14 then arguably a court must have the power to determine its own jurisdiction without relying on an outside body, i.e., the jury.7 5 In any event, Wetmore and Gilbert have been uniformly followed, and it is settled that questions relating to jurisdictional amount76 and di71 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 own motion. The Act required a court to dismiss a case if it did "not really and substantially involve a dispute or controversy properly within the jurisdiction of said . . . court." Id. The statute has been carried forward in modified form as 28 U.S.C. 1359 (1982), with the above provision omitted as unnecessary because "[a]ny court will dismiss a case not within its jurisdiction when its attention is drawn to the fact, or even on its own motion." 28 U.S.C. 1359 note (1982); see also Fed. R. Civ. P. 12(h)(3) ("[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action"). Thus, the court is given broad powers to determine whether it has proper jurisdiction. 72 See C. Wright, Law of Federal Courts 7, at 22 (4th ed. 1983). 73 74

Id. Id.

75 An analogous argument was presented in Crowell v. Benson, 285 U.S. 22 (1932). Crowell was a proceeding for compensation under the Federal Longshoremen's and Harbor Worker's Compensation Act, 33 U.S.C. 901-950 (1982). Under the administrative procedure provided by the Act, there had been a hearing and determination by a commissioner, who had awarded compensation for an injury that occurred in the course of employment. The petitioner brought a bill for injunction in the federal district court on the ground that the injured 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 of employment 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 opinion written by Chief Justice Hughes. The Court held that the commissioner could properly determine issues going to the substance of the Act, in much the same way that a jury is deemed appropriate to decide issues arising under the common law. Crowell, 285 U.S. at 51. "A different question," however, "is presented where the determinations of fact are fundamental or 'jurisdictional,' in the sense that their existence is a condition precedent to the operation of the statutory scheme." Id. at 54 (footnote omitted). These facts must be determined independently in court and not by the administrative body. Otherwise, it "would ... sap the judicial power as it exists under the Federal Constitution." Id. at 57. Justice Brandeis, in a dissenting opinion, argued that the fact of employment was not jurisdictional, but "quasi-jurisdictional," and went to the applicability of the substance of the Act, and not to the jurisdiction of the tribunal. Id. at 85 (Brandeis, J., dissenting). Although Crowell has never been expressly overruled, administrative agencies often make jurisdictional determinations and it is debatable whether Crowell is still good law. See Schwartz, Does the Ghost 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

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versity of citizenship77 can properly be determined by the court alone.7" 2. Postmerger Cases The weight of authority of the premerger cases suggests that the constitutional guarantee of a jury trial does not extend to preliminary jurisdictional issues.7 9 The Supreme Court, however, has rejected the strictly historical approach8" in a trilogy of cases that expands the right to jury trial.8 ' The question arises as to what effect, if any, this 8 expansion has on the right to a jury trial for jurisdictional issues. 2
be largely irrelevant, since there is often nothing preventing the plaintiff from increasing his demand 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 Oil Corp., 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 recently decided 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 accident that occurred in Virginia. The defendant contended that the plaintiffs' action was barred by Virginia's two-year statute of limitations. He further argued that plaintiffs could not take advantage of New York's borrowing statute, N.Y. Civ. Prac. Law 202 (McKinney 1972), in order to apply New York's three-year limitation period since plaintiffs were not New York domiciliaries at the time the cause of action accrued. The plaintiffs disputed this and demanded a jury trial on the question of their domicile. The court, carefully distinguishing between jurisdictional and nonjurisdictional issues, Katz, 737 F.2d at 242 n.2, held that a nonjurisdictional factual dispute about plaintiffs' domicile should be determined by the trier of facts, in this case a jury. Judge Irving Kaufman, however, in a concurring opinion, questioned the 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 in this case, I am troubled by the implication that it is not possible to dispose of such discrete issues as this one without resort to a full trial on the merits. . . . Without commenting upon the precise procedure to be utilized on remand in this case, it would seem paradoxical to require a full trial on the merits to determine whether a trial 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 Amendment 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 the Seventh Amendment compels categorization of rights and remedies as legal or equitable on a basis rigidly historical. Id. at 408. For a criticism of a departure from the strict historical test, see Redish, supra note 1, at 489. Professor Redish argues that because of the inherent inefficiency of jury trials, the strict historical approach should be followed since a departure from the historical test would expand 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 that were historically equitable. See 9 C. Wright & A. Miller, supra note 15, 2302, at 21; infra notes 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. Westover."3 In Beacon, the plaintiff sought both an injunction preventing the defendant from instituting antitrust suits and a declaratory judgment that plaintiff had not violated the antitrust laws. The defendant counterclaimed, alleging that plaintiff had indeed violated the antitrust laws, and sought damages. The court of appeals held that even though there were issues common to the claims of both plaintiff and defendant, it would hear the plaintiff's equitable claim first.84 Thus, a judgment in favor of plaintiff would estop the defendant from having his counterclaim heard by a jury. The Supreme Court reversed and held that where there are both legal and equitable claims, the court must ordinarily try the legal claim first in order to preserve the jury trial right for that claim.85 The next case in the trilogy was Dairy Queen v. Wood.86 In Dairy Queen, the plaintiff owned a copyrighted trade name and had licensed the defendant to use it. When the defendant defaulted in its payments, the plaintiff sought an injunction against further use of the trademark, as well as an accounting to determine the exact amount owed by the defendant and a judgment for that amount. It was unclear whether the claim for money judgment was based on damages for trademark infringement or for the amount owed under the contract. The Court held that no matter what the theory, it was a legal claim triable by jury. The use of the word "accounting" did not make the claim equitable, for "the constitutional right to trial by jury cannot be made to depend upon the choice of words used in the pleadings." 8 7 The departure from the historical test culminated in Ross v. 8 Bernhard.8 Ross was a stockholders' derivative action in which the stockholders alleged, among other things, that third parties had breached their contract with the corporation and were guilty of gross negligence. A stockholders' derivative suit was historically equitable since a stockholder had no standing to sue on behalf of a corporation. The underlying contract and negligence claims would have been trianote 15, 2302, at 17 (Recent Supreme Court "decisions recognize that there is a strong federal policy favoring trial by jury of issues of fact. This policy in itself may provide the answer in 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 accompanying
text.

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ble by jury if they had arisen in a suit brought by the corporation in its own behalf rather than in a derivative action. The Court separated the equitable and legal claims and held that the latter were triable by jury once the court, without a jury, determined that the stockholder had standing to sue. 89 The Court reasoned that before merger, suits in equity arose where there was no adequate remedy at law. A derivative suit was historically equitable because common law courts refused to hear a case where a stockholder was attempting to assert a claim not his own. The merger of law and equity made such a distinction obsolete, since a single court
could now pass judgment on both the equitable and legal issues. 90

The Beacon Theatres trilogy should not be read as extending a jury trial right to preliminary jurisdictional issues.9 ' Jurisdiction must be proven in cases arising under both law and equity. 92 Therefore, the merger of law and equity is irrelevant in determining jurisdiction. Further, the preliminary nature of jurisdictional issues enables them to be easily separated from the merits without jeopardizing the main action. Therefore, trying the jurisdictional issue to the court 3 generally will not undermine the jury trial right on the merits. 9
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), . . . might indicate a different result. An examination of that case, however, shows that the question involved 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 Law and Equity"); C. Wright, supra note 72, 7, at 22 (Federal courts "are empowered to hear only such cases as are within the judicial power of the United States, as defined in the Constitution, 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 is dependent on a decision of the merits." Bailey's Bakery, Ltd. v. Continental Baking Co., 235 F. 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 a jury trial when a preliminary hearing goes to the merits of the case in Smithers v. Smith, 204 U.S. 632 (1907). This doctrine was reiterated in Land v. Dollar, 330 U.S. 731 (1947). In Land, stockholders of a financially troubled corporation entered into a contract whereby they turned 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 an action against the Commission for return of the stock on the grounds that it had not been transferred, but had been pledged as security for the loans. The Commission alleged lack of jurisdiction on the ground that the United States had not consented to be sued. The court held that determining whether the United States could be sued depended on whether the Commission 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 on a 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 expanded 4 the right to jury trial for jurisdictional issues. 9 However, it is sometimes unclear whether certain facts, necessary to maintain a cause of action, are jurisdictional facts or facts involving the merits of the ac5 tion. 9 Where they involve the merits, the seventh amendment commands a jury trial.

The primary area of confusion concerns federal question jurisdiction. 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 where determining 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 trial proper 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 decisions indicate that the allowable discretion of the District Court as to how issues of jurisdictional fact 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 of fact in jurisdictional issues. Only questions of fact can be determined by a jury. A fact may be defined "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 to apply a rule of law." Black's Law Dictionary 532 (5th ed. 1979) (quoting Hinckley v. Town of Barnstable, 311 Mass. 600, 603, 42 N.E.2d 581, 584 (1942)). Thus, a jurisdictional fact is one that 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. Thurcon Constr. Corp., 92 A.D.2d 89, 459 N.Y.S.2d 765 (1983). Cerrato involved a dispute as to whether 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 be made by delivering the summons as follows: 1. upon any domestic or foreign corporation, to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service. Determining the employee's status in the corporation is a factual issue. Whether such person can then be served is a matter of law to be determined by application of the statute. The Cerrato majority held that the employee's "authority, or lack of it, is a factual matter which can 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 served had actual or apparent authority to accept such service. While determination of the issue may involve the ascertainment of facts, in last analysis the conclusion required to be reached is one of 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) (since jurisdiction involves mixed questions of law and fact, "[i]t would manifestly lead to absurd results if a court must call a jury to determine whether the court has jurisdiction of the parties to a cause"); cf. Owens v. White, 342 F.2d 817, 819 (9th Cir. 1965) ("it is unrealistic to expect the jury to perform the 'intellectual gymnastic' of adjudicating both the limitations question and the merits").

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Sand & Gravel Co., 9 6 the plaintiff alleged violations of antitrust stat-

utes.97 To invoke the statutes, and thereby maintain a cause of action based on federal question jurisdiction, the plaintiffs had to prove an effect on interstate commerce. The court of appeals considered such 98 a question to be jurisdictional in nature and, echoing Gilbert v. David,
denied plaintiff a jury trial on the issue. 99 The contrary position is typified by cases arising under the Jones

Act." To be covered by the Act, the plaintiff must prove that he is a 0 seaman. 1 ' Where facts as to whether the plaintiff is a seaman within the meaning of the Act are disputed, the cases uniformly hold that 0 there is a right to a jury trial." 2 There is some indication, however, that such facts are not being treated as jurisdictional by the courts in these cases.13 Instead, the courts are construing the issue as involving 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 by the court); Bailey's Bakery, Ltd. v. Continental Baking Co., 235 F. Supp. 705, 714 (D. Hawaii 1964) (disputed fact necessary to prove an effect on interstate commerce should be tried by the court), 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). But see 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 a jurisdictional fact, enabling the judge to determine the issue for himself . . . will in practice deprive plaintiffs of their right to a jury trial." Id. at 935 n. 1. The Marks court also based its decision on the practice of determining jurisdictional issues by a jury where the factual merits of the case must be considered before deciding the jurisdictional issue. See supra note 93. The court 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 has generally not been followed. See Bailey's Bakery, 235 F. Supp. at 714 ("the thrust of the Marks 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 Lauritzen 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. A cause of action under our law was asserted here, and the court had power to determine 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 existence of a relation of employment is a question going to the applicability of the substantive law, not to the jurisdiction of the tribunal").

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jury." The Jones Act cases appear factually indistinguishable from Rosemound, although one commentator has suggested that the specific jury trial right contained in the Act may make the difference. 5 B. State Courts Research has revealed few state court decisions concerning the right to a jury trial for jurisdictional issues. Although state courts have more frequently granted a jury trial for jurisdictional issues than their federal counterparts, 10 6 a survey of the cases shows a clear judi104 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 not defeated by possibility that recovery is not legally available under federal law). The basic difference among the various 12(b) motions is, of course, that 12(b)(6) alone necessitates a ruling on the merits of the claim, the others deal with procedural defects. Because 12(b)(6) results in a determination on the merits at an early stage of plaintiff's case, the plaintiff is afforded the safeguard of having all its allegations taken as true and all inferences favorable to plaintiff will be drawn. . . . If the court considers matters outside the pleadings before it in a 12(b)(6) motion, the above procedure will automatically be converted into a Rule 56 summary judgment procedure. Here there are further safeguards for the plaintiff: in addition to having all of plaintiff's allegations taken as true, with all their favorable inferences, the trial court cannot grant a summary judgment unless there is no genuine issue of material fact. The procedure under a motion to dismiss for lack of subject matter jurisdiction is quite different. . . . [It] differs greatly for here the trial court may proceed as it never could under 12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual 12(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 and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Moreover, the plaintiff will have the burden of proof that jurisdiction does in fact exist. Mortensen v. First Fed. Say. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977) (footnote omitted). 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 of general jurisdiction, and the presumption is that they have jurisdiction over a particular controversy unless a showing is made to the contrary." C. Wright, supra note 72, 7, at 22. This suggests that state courts are not under the same affirmative duty to dismiss for lack of jurisdiction 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 the seventh amendment. The various constitutions "preserve the right of jury trial as it existed in English History at some past time, either in 1791 when the seventh amendment was adopted or, in the case of the states, at the date of the first state constitution." James, supra note 1, at 655 (footnote omitted). Thus, the argument that enactments providing for a right to jury trial were intended to protect only the jury trial right on the merits, and not a preliminary jurisdictional issue, is as compelling in state courts as it is in federal courts. The federal cases denying jury trial for issues of personal jurisdiction are analogous, see supra text accompanying notes

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cial conflict." 7 One early case supporting the right to jury trial was 0 J.D. Hudgins & Brother v. Low, 1 8 where the court held that, for the purpose of determining personal jurisdiction, the defendant was entitled to a trial by jury on the question of whether the defendant was a resident of the county in which the action was brought. In the court's
words: The very existence of a plaintiff's cause of action may depend on 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 of the case, there can be no reason why the right of trial by jury on the questions of fact on such a plea is not fully as sacred.'0 9

Similarly, Drea v. Carrington," an action for wrongful death in which the defendant filed a motion to dismiss based on improper service, held that the plaintiff was entitled to a jury trial on the jurisdictional issue. In Drea, there was a statute requiring that "issues of fact
for the recovery of money
. . .

shall be tried by a jury, unless a jury

trial be waived."'" In contradistinction with the federal practice of not including jurisdictional facts within the purview of the federal jury trial statute," 2 the statute in Drea was held to control. The court determined that the question of whether process had been properly 13
served was an issue of fact to be decided by a jury."

In direct conflict with Drea was Williams v. J.F.Ball Bros. Lumber Co.,114 which considered an almost identical jury trial statute. The court held that "[t]he provision [of the Code] for the trial of 'issues 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 both state 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. Bartlett, 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, 270 S.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 to issues 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 this view. In Wrynn, the Connecticut Superior Court held that "it is the ultimate issue or issues of facts decisive of the merits of the case that are triable by a jury and not a preliminary jurisdictional question raised by a plea in abatement." ' 17 In Connecticut, there is a statutory right to a jury trial for civil actions that were not "cognizable in equity" prior to 1880.11" Since an issue of fact raised by a motion to dismiss was not cognizable in equity prior to 1880,' the statute would seem to require a jury trial for the jurisdictional issue. The Wrynn court, however, determined that this right did not extend to preliminary questions. It held that a plea in abatement is not a viable action 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 part 20 thereof. 1 The rationale underlying the state cases favoring a jury trial is that an issue essential to the maintenance of the action is as important as an issue going to the merits of the action, and therefore a factual dispute in a jury triable case should be determined by a jury. The contrary position is that the right to a jury trial is confined to the cause of action on the merits. This appears to be the better view, and the view adopted by the federal courts. 12 1 Under this approach, the right to a trial by jury on the merits is not being abridged since only the jurisdictional issue is being determined by the court. Once jurisdiction is proven, the constitutional guarantee of a trial by jury remains intact. Furthermore, the mere existence of a question of fact does not make an issue jury triable even in a jury triable case. There are numerous examples where judges decide issues of fact withId. at 288, 182 P. at 554. 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, "without disputing justice of plaintiff's claim, objects to place, mode or time of asserting it." Black's Law Dictionary 1037 (5th ed. 1979). In the federal courts, pleas in abatement have been abolished 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
'15 116

purposes of right to jury trial, term "trial" contemplates a final adjudication of the case on the merits), 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 nonmutual collateral estoppel, directed verdicts, summary judgments, the power to set aside verdicts in part, and remittitur that allow judicial discretion over the jury.2 3 In summary, the mere existence of a disputed factual issue, in a case that is jury triable on the merits, is not a compelling reason for providing a jury trial where no such right is constitutionally guaranteed.
III.
POLICY CONSIDERATIONS

The constitutional right to a jury trial for civil actions is one of our fundamental rights. Justice Story, addressing the seventh amendment, 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 courts include the following: [T]hose relative to jurisdiction, venue and forum non conveniens; the existence and effect 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 been such wilful and malicious negligence in a tort case as to justify issuance of a certificate 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 examples of cases where no jury trial right exists. Factual disputes in those actions are settled by the court. [I]n this country no jury right exists in equity, admiralty or maritime matters, immigration cases, habeas corpus petitions. Federal Tort Claims Act cases, Fair Labor Standards Act injunctions, NLRA cases, or Longshoremen and Harbor Workers cases. Administrative agencies and the Tax Court decide issues without assistance of juries. . . . If a federal judge, sitting alone, is qualified to decide the issues 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 when only damages are demanded? Devitt, supra note 1, at 508-09. The short answer is that the judge is qualified. This fact is irrelevant, 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 mere existence of a factual dispute does not compel a jury trial. Although the seventh amendment applies 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 supra note 106. 123 Comment, supra note 53, at 607-08; cf. Wall v. Chesapeake & 0. Ry., 95 F. 398 (7th Cir. 1899). In Wall, the court compared a jurisdictional motion that does not bar a new action with a procedural motion that does. There are many matters pending in the progress of a case which are daily determined upon motion that are much more important in affecting substantial rights 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 has recovered a substantial verdict. The court, in its discretion, may set aside the verdict upon a motion. Whether the plaintiff will ever be able to obtain another is uncertain, and yet no one would think of objecting to trying such a question before the court upon motion supported and opposed by affidavits. Id. at 403.

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the high ground of constitutional right the inestimable privilege of a trial by jury in civil cases, a privilege scarcely inferior to that in criminal cases, which is conceded by all to be essential to political 12 4 and civil liberty. In recent years, however, this right has come under increasing criticism.' 2 5 The three major arguments against the civil jury have been (1) juror incompetence; (2) juror prejudice; and (3) judicial economy. 126 Juror incompetence is especially relevant in cases that are 2 factually complex.1 7 Some commentators have gone even further and have questioned the very ability of the jury to perform as fact finder in any context.' 28 Jerome Frank, for example, has asked: Is it likely that twelve men, summoned from all sorts of occupations, unaccustomed to the machinery of the law, unacquainted with their own mental workings and not known to one another, can, in the scant time allowed them for deliberation, do as good 9a 2 job in weighing conflicting testimony as an experienced judge? If accurate, this analysis would be as applicable to jurisdictional questions as to the merits of the action. In the jurisdictional context, however, the consequences may be of greater significance since the very power of the court to hear a case would be determined by a body less competent than the court itself. The second major charge is that of juror prejudice. "It has been contended that jurors, either consciously or subconsciously, often do not perform the task of fact finder in an objective manner, but rather are influenced by their personal likes, or dislikes, for the appearance, 30 views, or social position of the litigants."' 1 Since a jurisdictional issue goes to the very right of the case to be heard, and since a juror's predisposition toward a particular party would tend to influence his decision on the preliminary motion in favor of that party, then juror prejudice argues against allowing such a threshold issue to be determined by a jury. The third factor is that of judicial economy. Undeniably, a trial
2 J. Story, Commentaries on the Constitution of the United States 574 (1858). See Jerome Frank, Courts on Trial: Myth and Reality in American Justice 108 (1949); at Devitt, supra note 1, at 496; Redish, supra note 1, 488. But see Kalven, The Dignity of the Civil Jury, 50 Va. L. Rev. 1055 (1964). 126 Redish, supra note 1, at 502.
124 125 127 128

Id. at 505.
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 of jury 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 time and money for the judicial system and the parties involved.I3 2 This is a particularly important consideration in view of today's crowded jury dockets. A jury trial for jurisdictional issues could mean calling a jury solely for the preliminary motion: if the jurisdictional claim were defeated, the court would be expending its valuable time and money in merely coming to the conclusion that it does not have the power to hear the suit. These criticisms of civil juries are criticisms of a right guaranteed by the Constitution. Where, as in jurisdictional issues, there is no seventh amendment guarantee, the arguments against jury trial become even more persuasive. At the very least, they should serve as factors against extending the right to jury trial to preliminary jurisdictional issues. An analogous argument against a jury trial right for jurisdictional issues is found in the Federal Rules of Civil Procedure 133 and similar state provisions' allowing for an early determination of factual issues arising on a motion to dismiss. Rule 12(d) states that the defenses enumerated in 12(b)-for our purposes, lack of jurisdiction over the subject matter, lack of jurisdiction over the person, and insufficient service of process-"shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until the trial." 1 35 The purpose of rule 12 is to "expedite and simplify the pre-trial phase of federal litigation while at the same time promoting the just disposition of cases. It does so in part by providing a streamlined system for the presentation of defenses and objections."' 3 6 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 in the Court 75-78 (1959). Jury trials take longer than court trials. In a bench trial it is not necessary for counsel to present the same amount of evidence to familiarize the court with the concepts as is often necessary in jury trials. Arguments are usually much shorter and the judge can read depositions on his own time, rather than listening to counsel consume everyone's time reading them into the record. Issues can more easily be 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 133 134 135 136 of this consumption of time is that jury trials necessarily cost more"). Fed. R. Civ. P. 12. See, e.g., N.Y. Civ. Prac. R. 3211(c) (McKinney 1970 & Supp. 1970-1984). Fed. R. Civ. P. 12(d). 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 of judicial economy; it is the right of the party to have his defenses or objections promptly decided, thereby possibly avoiding costly litigation. 38 The determination of the defenses enumerated in rule 12(b) has been deferred until trial where the court holds that determination to be inextricably tied to the case on the merits.'39 Thus, it is within the discretion of the court to decide a jurisdictional motion to dismiss before or during a trial. That discretion is generally exercised only when it is impossible to determine the jurisdictional issue without also determining the merits. When it is to be decided before the merits, it is a frustration of the purpose of the Federal Rules of Civil Procedure to require a trial by jury for the preliminary motion.
CONCLUSION

Both Cerrato v. Thurcon Construction Corp. and the practice commentary to New York CPLR 3211 grant a jury trial for a jurisdictional motion on the basis of whether an adverse judgment on the motion will permanently bar a new action. This Note contends that it is the nature of the issue to be tried that determines jury trial right and not the nature of the underlying action. Only if the jurisdictional issue is constitutionally guaranteed a jury trial does such a right exist. The weight of authority is against allowing a jury trial for jurisdictional issues. The cases hold that the constitutional guarantee of a jury trial was not meant to extend to preliminary questions, but is reserved for the cause of action on the merits. Furthermore, since jurisdictional questions concern the very power of the court to hear the 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. Hawaii

1964). ("since want of Federal jurisdiction renders nugatory proceedings on the merits, to
compel the submission of jurisdictional-facts issues for jury determination is contrary to both the 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 the merits. For example, in one antitrust case the Fifth Circuit stated: [Plaintiffs'] claim that they are entitled to a trial on the merits to more fully develop their jurisdictional assertions . . . [c]ompet[es] against . . . the reality

that antitrust suits frequently entail enormous expense. Win, lose, or draw regarding the final outcome, the very fact of trial may result in crushing costs and hardships to the defendant.
McLain v. Real Estate Bd., 583 F.2d 1315, 1323 (5th Cir. 1978), vacated and remanded on other grounds, 444 U.S. 232 (1980). 139 See supra note 93.

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economy argue against extending jury trial right to preliminary jurisdictional issues. Finally, the purpose behind procedural motions to dismiss and immediate trial of preliminary issues would be frustrated by requiring a jury trial on these questions. Steven Kessler