Teresa Wagner v. Carolyn Jones ( 2014 )


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  •                   United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 13-1650
    ___________________________
    Teresa R. Wagner
    lllllllllllllllllllll Plaintiff - Appellant
    v.
    Carolyn Jones, Dean Iowa College of Law (in her official and individual
    capacities); Gail B Agrawal, Dean Iowa College of Law (in her official and
    individual capacities)
    lllllllllllllllllllll Defendants - Appellees
    ____________
    Appeal from United States District Court
    for the Southern District of Iowa - Davenport
    ____________
    Submitted: February 13, 2014
    Filed: July 15, 2014
    ____________
    Before SMITH, BEAM, and BENTON, Circuit Judges.
    ____________
    BEAM, Circuit Judge.
    Teresa Wagner appeals from the district court's denial of her motion for new
    trial, arguing that significant errors in the verdict formulation process entitle her to
    a new trial. Under the standard we apply today, we conclude that the district court
    abused its discretion in denying Wagner's motion. Accordingly, we reverse and
    remand for a new trial.
    I.    BACKGROUND
    This case returns to us for the second time following reversal and remand of
    the district court's initial summary judgment ruling. See Wagner v. Jones, 
    664 F.3d 259
    , 275 (8th Cir. 2011) (remanding for "further proceedings" consistent with the
    court's opinion). The facts pertinent to the instant appeal are set forth below.
    On January 20, 2009, Wagner commenced action against Carolyn Jones, then
    Dean of the Iowa College of Law (the "College of Law") in her individual capacity.
    She alleged claims associated with her candidacy as a legal writing instructor at the
    College.1 Wagner subsequently amended her complaint, seeking injunctive relief in
    the form of employment from the current College of Law Dean, Gail B. Agrawal, in
    her official capacity. On October 15, 2012, pursuant to 
    42 U.S.C. § 1983
    , Wagner's
    trial commenced in Davenport, Iowa, on two constitutional claims–political
    discrimination and equal protection.
    On October 22, 2012, the jury began deliberations. Deliberations continued
    on October 23, with a magistrate judge presiding over the deliberations by consent
    1
    The record establishes that although the College of Law uses a multifaceted
    process for receiving advice and consent from relevantly involved faculty and staff,
    especially in the selection of new members of the teaching faculty, the Dean has final
    authority and responsibility for the exercise of the College's employment actions. In
    this case, Dean Jones acted in her individual capacity as a supervisor. Under such
    circumstances, a supervisor may incur liability under 
    42 U.S.C. § 1983
     for a violation
    of a federally protected right when the supervisor is personally involved in the
    violation or when the supervisor's corrective inaction constitutes deliberate
    indifference toward the violation. Ottman v. City of Independence, Mo., 
    341 F.3d 751
    , 761 (8th Cir. 2003).
    -2-
    of the parties.2 At 9:00 a.m., on October 24, the jury sent the magistrate judge a note,
    inquiring, "What happens if we cannot come to an agreement?" After the magistrate
    judge conferred with the parties and, by telephone, with the district judge, the
    magistrate judge directed the jury to continue with deliberations in an attempt to
    arrive at a unanimous verdict.
    Roughly two hours after submitting their first question, the jury sent the
    magistrate judge another note, signed by all twelve jurors, stating, "We are unable to
    come to a unanimous verdict for either the Plaintiff, Teresa Wagner, nor Defendant,
    Carolyn Jones." Subsequently, the district court held a telephone conference with the
    magistrate judge and the parties, discussing how to proceed. During this discussion,
    the district court recognized that "we don't know if [the note] pertains to one of the
    submitted counts or both of the submitted counts," but the court clearly operated at
    that time under the assumption that both counts were at issue in the jury notes.3 At
    this point, the district court asked the parties whether they thought it appropriate to
    give the jury a so-called Allen4 charge. Wagner desired such a charge, but the
    appellees objected to giving the instruction.
    Pursuant to the district court's instructions, a little after 1:00 p.m., the
    magistrate judge convened the jury in open court and read them the Allen charge. At
    2
    The district court judge conducting the trial had returned to his chambers in
    Des Moines, Iowa.
    3
    Indeed, the court's jury instructions clearly directed the jury to evaluate the
    issues and return a separate verdict on each count submitted for deliberations, without
    further instructions from the court.
    4
    Allen v. United States, 
    164 U.S. 492
     (1896). "An Allen-charge is a
    supplemental jury instruction that advises deadlocked jurors to reconsider their
    positions." United States v. Walrath, 
    324 F.3d 966
    , 970 (8th Cir. 2003) (quotation
    omitted).
    -3-
    3:24 p.m., through email, Wagner's counsel requested that the district court discharge
    the jury and order a new trial. A short time after 4:00 p.m., the jury sent the court
    another note, indicating that the jury could not reach a unanimous verdict and
    predicting, "I DO NOT SEE US EVER AGREEING." After receiving this note, the
    magistrate judge again convened the jury in open court without counsel present. The
    magistrate judge questioned the jury about the note, and each juror confirmed that the
    note reflected his or her individual view as to the state of deliberations. The
    magistrate judge, then, declared a mistrial, asked the jury to later complete and return
    a post-trial assessment, and thanked the jury for their service. The magistrate judge
    finally excused the jury and the members retired from the courtroom at 4:35 p.m.
    according to the clerk of court's minutes.
    Then, after having discharged the jury, the magistrate judge reassembled the
    previously dispersed members in the courtroom.5 According to the clerk of court's
    minutes, this occurred at 4:37 p.m. The magistrate judge, out of the presence of the
    parties and their lawyers, then engaged in the following colloquy with the jury:
    What I failed to ask you for on the record was there were two counts in
    the Complaint filed by Ms. Wagner against the Defendants and the
    indication of the jury was that you were unable to reach an agreement.
    Was that as to both Counts 1 and 2?
    The foreperson replied that the jury had reached a verdict on Count I, but not Count
    II. Specifically, the foreperson indicated that the jury had found for defendant Jones
    5
    From the time the magistrate judge discharged the jury and the members
    dispersed from the courtroom, until the time the magistrate judge reassembled them
    in the courtroom, we have no record of the jury members' location, supervision,
    contacts, communications or conduct, either as individuals or as a group.
    -4-
    on Count I.6 The magistrate judge polled each juror, and the jurors confirmed the
    verdict on Count I. After this, the magistrate judge amended the previous mistrial
    ruling, now limiting it to Count II, and ordered the foreperson to sign the verdict form
    and again excused the jury. On October 25, 2012, the clerk entered judgment on the
    verdict on Count I in favor of Jones and noted that the court declared a mistrial on
    Count II.
    On November 1, 2012, the appellees moved for judgment as a matter of law on
    Count II–the equal protection claim. On November 20, 2012, Wagner moved for a
    new trial on the basis that the magistrate judge lacked authority to reconvene the jury
    and accept a verdict after he had already declared a mistrial. The district court
    granted the appellees' motion for judgment as a matter of law on Count II and denied
    Wagner's motion for new trial, among other rulings. Wagner now appeals.7
    II.   DISCUSSION
    Wagner raises many issues in this appeal. However, we substantially limit our
    review to a single matter: whether the district court erred in denying her motion for
    new trial under Federal Rule of Civil Procedure 59(a) due to errors in the verdict
    process.8 "We review the denial of a motion for a new trial for a clear abuse of
    6
    There is, however, information in the record tending to show that the jury's "I
    DO NOT SEE US EVER AGREEING" note to the magistrate judge prior to discharge
    and reassembly better described the then continuing status of jury deliberations on
    both counts. See, e.g., Wagner v. Jones, No. 3:09-CV-10 (Response to Motion for
    Judgment as a Matter of Law, Ex. A, Nov. 19, 2012).
    7
    In her reply brief, Wagner has abandoned her challenge to the district court's
    grant of judgment as a matter of law on Count II.
    8
    Technically speaking, Wagner moved for a new trial under Rule 59(a). Later,
    in a single document, Wagner moved to alter the judgment under Rule 59(e) and
    alternatively moved for relief from judgment under Rule 60(b)(4). Wagner's Rule
    -5-
    discretion, with the key question being whether a new trial is necessary to prevent a
    miscarriage of justice." Hallmark Cards, Inc. v. Murley, 
    703 F.3d 456
    , 462 (8th Cir.
    2013) (internal quotation omitted). Although our standard of review is deferential,
    "we may reverse a district court's denial of a Rule 59 motion where its judgment rests
    on an erroneous legal standard." Pulla v. Amoco Oil Co., 
    72 F.3d 648
    , 656 (8th Cir.
    1995). Indeed, the abuse of discretion standard "does not mean a mistake of law is
    beyond appellate correction." Koon v. United States, 
    518 U.S. 81
    , 100 (1996).
    Wagner asserts that she is entitled to a new trial because the magistrate judge,
    after declaring a mistrial, had no legal authority to reconvene the jury and accept an
    unsigned verdict in favor of Jones on Count I. In ruling on Wagner's motion, the
    district court found legal authority for the magistrate judge's conduct in the
    "numerous federal courts that have held a jury remains 'undischarged' and subject to
    recall by the court under such circumstances."
    Generally, with some factual distinctions, precedent falls within two camps on
    whether a jury may be recalled after discharge, especially a discharge such as we have
    in this case. One line of authority–followed by the district court here–requires a case-
    specific analysis of "whether the jurors became susceptible to outside influences" and
    beyond the control of the court once discharged. United States v. Figueroa, 
    683 F.3d 69
    , 73 (3d Cir. 2012). Many of the cases that adhere to this rule draw support from
    59(e) motion was untimely, and she lodged the same basis for relief in her Rule 59(a)
    and 60(b)(4) motions. The district court evaluated whether Wagner's complaints were
    "cognizable under any rule." Rule 60(b)(4) provides a court authority to relieve a
    party from a final judgment that is void. "A judgment is void if the rendering court
    lacked jurisdiction or acted in a manner inconsistent with due process." Baldwin v.
    Credit Based Asset Servicing and Securitization, 
    516 F.3d 734
    , 737 (8th Cir. 2008).
    We therefore limit our review to Wagner's timely Rule 59(a) motion for new trial,
    which allows a district court to grant a new trial "after a jury trial, for any reason for
    which a new trial has heretofore been granted in an action at law in federal court."
    Fed. R. Civ. P. 59(a)(1)(A).
    -6-
    Summers v. United States, where the Fourth Circuit observed that a jury "may remain
    undischarged and retain its functions, though discharge may have been spoken by the
    court, if, after such announcement, it remains an undispersed unit, within control of
    the court, with no opportunity to mingle with or discuss the case with others.'' 
    11 F.2d 583
    , 586 (4th Cir. 1926). Although the court in Summers determined that a
    nominally discharged jury that stayed in the courtroom remained undischarged for the
    purposes of correcting an error, see 
    id.
     ("[t]hey remained in their seats"), a few courts
    have extended Summers to apply to situations where the court announces discharge
    and the jury retires to the deliberating room, see, e.g., Figueroa, 683 F.3d at 72;
    United States v. Rojas, 
    617 F.3d 669
    , 673 (2d Cir. 2010); United States v. Marinari,
    
    32 F.3d 1209
    , 1215 (7th Cir. 1994). In those situations, even though discharged and
    outside the presence of the court, the jury remains subject to recall, the Third Circuit
    has reasoned, as long as "[t]he jurors did not disperse and interact with any outside
    individuals, ideas, or coverage of the proceedings." Figueroa, 683 F.3d at 73. Thus,
    according to this view, if a jury remains within the court-imposed "protective shield,"
    it is subject to recall after discharge. People v. McNeeley, 
    575 N.E.2d 926
    , 929 (Ill.
    Ct. App. 1991).
    The equally established competing view is that "[w]hen the court announces
    [the jury's] discharge, and they leave the presence of the court, their functions as
    jurors have ended, and neither with nor without the consent of the court can they
    amend or alter their verdict." Melton v. Commonwealth, 
    111 S.E. 291
    , 294 (Va.
    1922); see Nails v. S & R, Inc., 
    639 A.2d 660
    , 667 (Md. 1994) ("[I]n a civil case,
    after a jury has rendered an initial verdict, the trial judge ordinarily may ask the jury
    to amend, clarify or supplement the verdict in order to resolve an ambiguity,
    inconsistency, incompleteness, or similar problem with the initial verdict, up until the
    jury has been discharged and has left the courtroom."). Under this rule, if the jury
    -7-
    disperses from the courtroom, we presume "mingling occurs once the individual
    jurors have been discharged from their oath and duties as jurors and have left the
    presence, control, and supervision of the court." Spears v. Mills, 
    69 S.W.3d 407
    , 412
    (Ark. 2002); see Mohan v. Exxon Corp., 
    704 A.2d 1348
    , 1352 (N.J. Sup. Ct. App.
    Div. 1998) ("We do not consider it of any moment that individual jurors may not have
    discussed the case with anyone or been subject to improper or any influences."). As
    Justice Cardozo long ago explained: "where [the jury] has been discharged altogether
    and relieved, by the instructions of the judge, of any duty to return . . . it has ceased
    to be a jury, and, if its members happen to come together again, they are there as
    individuals, and no longer as an organized group, an arm or agency of the law."
    Porret v. City of New York, 
    169 N.E. 280
    , 280 (N.Y. 1929).
    Our circuit has not had the opportunity to address the issue of recalling a jury
    after a court has declared a mistrial and discharged the jury. Today, we hold, in a
    case such as the present one, where a court declares a mistrial and discharges the jury
    which then disperses from the confines of the courtroom, the jury can no longer
    render, reconsider, amend, or clarify a verdict on the mistried counts. In this age of
    instant individualized electronic communication and widespread personal control and
    management of pocket-sized wireless devices, we think this bright line rule is more
    faithful to precedent9 and offers better guidance than an amorphous rule that turns on
    9
    In this regard, we question whether some courts have improvidently extended
    Summers, because the precedent that Summers relied upon for its holding–like
    Summers itself–involved situations where a court nominally discharged the jury but
    corrected errors before the jury dispersed from the courtroom and the direct view of
    the trial judge. See Levells v. State, 
    32 Ark. 585
    , 
    1877 WL 1678
    , at *3 (Ark. 1877)
    ("[T]he jurors arose from their seats in the jury box, and began to pass out from the
    box . . . all in full view of the judge."); Brister v. State, 
    26 Ala. 107
    , 
    1855 WL 294
    ,
    -8-
    whether jurors in fact became available for or were susceptible to outside influences
    or remained within total control of the court. Indeed, the Summers rule and its
    variations become unworkable when, as here, the record is silent as to juror security
    and conduct after discharge and leaves much to chance depending upon the nature of
    the architectural design of a courthouse and the availability of non-court personnel
    wandering the spaces outside the courtroom and its jury facilities. And, we are forced
    to speculate as to the undefined limits of the so-called "protective shield."
    Furthermore, once a court has declared a mistrial and discharged the jury from the
    courtroom, an attempt to reconvene the jurors, question them, and re-poll them on the
    mistried counts raises serious potential for confusion, unintended compulsion and,
    indeed, coercion.10 We hesitate to give a vacillating juror an opportunity to
    at *6 (Ala. 1855) ("[T]he jury started out of the court-room, but had not got out of the
    bar."). Notably, this precedent remains in force, see, e.g., Spears, 
    69 S.W.3d at
    411-
    12; Ex parte T.D.M, 
    117 So.3d 933
    , 938 (Ala. 2011), and is seemingly inconsistent
    with some cases purporting to apply Summers to situations where jurors dispersed
    beyond the courtroom. As Summers explained, we are concerned with whether a
    juror had the "opportunity" to encounter an outside influence, not whether the juror
    actually had such encounter. 
    11 F.2d at 586
    . In any meaningful sense, once a juror
    leaves direct judicial supervision in the courtroom, he or she virtually always has the
    "opportunity" to encounter outside influences. But there remains a marked difference
    between an admonished jury that disperses from the courtroom with a case still under
    consideration and one that disperses under the impression that the case is over and
    their duties complete. Mohan, 704 A.2d at 1352.
    10
    On this point, given that the magistrate judge had declared a mistrial in
    addition to discharging the jury from the confines of the courtroom, we are not
    entirely convinced that those courts following the case-by-case, "outside influence"
    rule would condone recalling a jury to question and re-poll it on the already mistried
    counts. See Figueroa, 683 F.3d at 72-73 (allowing discharged jury to be recalled and
    consider new charge after court declared mistrial on different charge); Rojas, 617
    -9-
    reconsider, after he or she has already been polled and discharged, especially where
    there is the possibility that the jury, or some of its members, may have been confused
    in the understanding of the instructions. See ante at n.6; see also United States v.
    Schroeder, 
    433 F.2d 846
    , 851 (8th Cir. 1970) ("After a jury has given its verdict, has
    been polled in open court and has been discharged, an individual juror's change of
    mind or claim that he was mistaken or unwilling in his assent to the verdict comes too
    late.").
    Applying the standard we adopt today, we conclude that the magistrate judge
    erred in recalling the jury to question and re-poll them as to the mistried, or not,
    counts. After declaring a mistrial, the magistrate judge thanked the jury for their
    service and explained to the jury that the "case will move on and we will either set
    another trial or it will be resolved in another way." Also, upon discharge, the
    magistrate judge provided the jurors with "letters" to complete and send back to the
    court as a post-trial assessment. The record does not indicate what inquiries or
    information the "letters" contained, but we do know that the magistrate judge
    informed the jury that "[i]f there's something about this case that we need to know
    about, this is your opportunity to tell us." At this point, the jury no longer operated
    under the admonition that it could not talk to others about the case outside of the
    F.3d at 678 (allowing discharged jury to be recalled from deliberating room "to
    correct a technical error in the courtroom deputy's reading of the verdict form"); see
    also Camden v. Circuit Court of Second Judicial Circuit, Crawford Cnty., Ill., 
    892 F.2d 610
    , 616 n.7 (7th Cir. 1989) ("Once the jury is discharged and has dispersed, a
    trial court is unable to reconsider its intention to declare a mistrial."). Criminal cases,
    of course, present constitutional concerns not present here. See Camden, 892 F.2d
    at 616 n.7. But even in civil cases, both the litigants and the public must have the
    utmost confidence that verdicts remain untainted.
    -10-
    deliberation room. And, once discharged and dispersed from the courtroom, we are
    left, as earlier noted, to speculate as to the jurors' conduct.11 Once reassembled in the
    courtroom, the magistrate judge reminded the jury that two counts were at issue and
    re-polled them as to Count I, but nothing indicates that the jury understood that the
    case was being placed back in their hands, and that they were being re-polled
    essentially to rescind the mistrial. Although it may have been an inadvertent mistake
    in failing to clarify the jury verdict before the mistrial was declared, the mistake was
    beyond correction after the jury left the courtroom. Therefore, in light of our holding,
    we conclude the district court applied an erroneous legal standard and, thus, abused
    its discretion in denying Wagner's motion for a new trial.
    Finally, since we remand this case for retrial, we question whether the trial
    court's jury instructions adequately embraced our earlier guidance in adopting the
    First Circuit's test concerning First Amendment political discrimination claims. See
    Wagner, 664 F.3d at 270. There, we recognized that a discrimination plaintiff such
    as Wagner has "the threshold burden to produce sufficient direct or circumstantial
    evidence from which a rational jury could find that political affiliation was a
    substantial or motivating factor behind the adverse employment action." Id.
    (quotation omitted). If Wagner produces such evidence at trial, as we felt she did for
    summary judgment purposes, the burden of persuasion then shifts to "Jones to show
    that she would have made the same hiring decisions regardless of Wagner's political
    affiliations and beliefs." Id. at 271. In other words, Wagner "will prevail unless the
    fact finder concludes that the defendant has produced enough evidence to establish
    11
    Although the district court offered the magistrate judge's personal account of
    the time interval between discharge and reconvening the jury, as the district court
    recognized, this is not part of the record.
    -11-
    that [the adverse action against Wagner] would have occurred in any event for
    nondiscriminatory reasons." Id. at 270. However, unlike other employment
    discrimination cases "where a plaintiff is required to come forward with affirmative
    evidence that the defendant's nondiscriminatory reason is pretextual," in this political
    discrimination case Wagner is not required to produce any evidence of pretext to
    prevail. Id. at 272 (quotation omitted). Indeed, while she "may discredit the
    proffered nondiscriminatory reason, either circumstantially or directly, by adducing
    evidence that discrimination was more likely than not a motivating factor," id.
    (emphasis added), "her prima facie case may suffice for a factfinder to infer that the
    defendant's reason is pretextual," Padilla-Garcia v. Guillermo Rodriguez, 
    212 F.3d 69
    , 78 (1st Cir. 2000). In this regard, we do not think the district court's Final
    Instructions Nos. 6 and 7 adequately address these principles and the attendant
    -12-
    shifting burden of persuasion. Accordingly, upon remand, we direct the district court
    to revisit these instructions.
    III.   CONCLUSION12
    We reverse the district court's order denying Wagner a new trial on Count I,
    vacate the judgment on Count I, and remand for a new trial.
    ______________________________
    12
    The appellees argue that we lack appellate jurisdiction over this appeal to the
    extent it covers Wagner's claims against Dean Agrawal for prospective relief, because
    Wagner's notice of appeal did not list Agrawal as a named defendant or identify the
    district court's ruling with respect to Agrawal. Despite Agrawal's attempts to create
    one, we see no jurisdictional defect in Wagner's notice of appeal as to prospective
    relief. See Fed. R. App. P. 3(c)(1) (requiring notice of appeal to (1) "specify the party
    or parties taking the appeal"; (2) "designate the judgment, order, or part thereof being
    appealed"; and (3) "name the court to which the appeal is taken"); Hallquist v. United
    Home Loans, Inc., 
    715 F.3d 1040
    , 1044 (8th Cir. 2013) ("This court has jurisdiction
    over the underlying order if the appellant's intent to challenge it is clear, and the
    adverse party will suffer no prejudice if review is permitted.").
    -13-