Dietz v. Bouldin , 195 L. Ed. 2d 161 ( 2016 )

(Slip Opinion) OCTOBER TERM, 2015 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
DIETZ v. BOULDIN
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 15–458. Argued April 26, 2016—Decided June 9, 2016
Petitioner Rocky Dietz sued respondent Hillary Bouldin for negligence
for injuries suffered in an automobile accident. Bouldin removed the
case to Federal District Court. At trial, Bouldin admitted liability
and stipulated to damages of $10,136 for Dietz’ medical expenses.
The only disputed issue remaining was whether Dietz was entitled to
more. During deliberations, the jury sent the judge a note asking
whether Dietz’ medical expenses had been paid and, if so, by whom.
Although the judge was concerned that the jury may not have under-
stood that a verdict of less than the stipulated amount would require
a mistrial, the judge, with the parties’ consent, responded only that
the information being sought was not relevant to the verdict. The ju-
ry returned a verdict in Dietz’ favor but awarded him $0 in damages.
After the verdict, the judge discharged the jury, and the jurors left
the courtroom. Moments later, the judge realized the error in the $0
verdict and ordered the clerk to bring back the jurors, who were all in
the building—including one who may have left for a short time and
returned. Over the objection of Dietz’ counsel and in the interest of
judicial economy and efficiency, the judge decided to recall the jury.
After questioning the jurors as a group, the judge was satisfied that
none had spoken about the case to anyone and ordered them to re-
turn the next morning. After receiving clarifying instructions, the
reassembled jury returned a verdict awarding Dietz $15,000 in dam-
ages. On appeal, the Ninth Circuit affirmed.
Held: A federal district court has a limited inherent power to rescind a
jury discharge order and recall a jury in a civil case for further delib-
erations after identifying an error in the jury’s verdict. The District
Court did not abuse that power here. Pp. 4–13.
(a) The inherent powers that district courts possess “to manage
2 DIETZ v. BOULDIN
Syllabus
their own affairs so as to achieve the orderly and expeditious disposi-
tion of cases,” Link v. Wabash R. Co., 370 U.S. 626, 630–631, have
certain limits. The exercise of an inherent power must be a “reason-
able response to the problems and needs” confronting the court’s fair
administration of justice and cannot be contrary to any express grant
of, or limitation on, the district court’s power contained in a rule or
statute. Degen v. United States, 517 U.S. 820, 823–824. These two
principles support the conclusion here.
First, rescinding a discharge order and recalling the jury can be a
reasonable response to correcting an error in the jury’s verdict in cer-
tain circumstances, and is similar in operation to a district court’s
express power under Federal Rule of Civil Procedure 51(b)(3) to give
the jury a curative instruction and order them to continue deliberat-
ing to correct an error in the verdict before discharge. Other inherent
powers possessed by district courts, e.g., a district court’s inherent
power to modify or rescind its orders before final judgment in a civil
case, see Marconi Wireless Telegraph Co. of America v. United States,
320 U.S. 1, 47–48, or to manage its docket and courtroom with a
view toward the efficient and expedient resolution of cases, see Lan-
dis v. North American Co., 299 U.S. 248, 254, also support this con-
clusion.
Second, rescinding a discharge order to recall a jury does not vio-
late any other rule or statute. No implicit limitation in Rule 51(b)(3)
prohibits a court from rescinding its discharge order and reassem-
bling the jury. Nor are such limits imposed by other rules dealing
with postverdict remedies. See, e.g., Fed. Rules Civ. Proc. 50(b),
59(a)(1)(A). Pp. 4–7.
(b) This inherent power must be carefully circumscribed, especially
in light of the guarantee of an impartial jury. Because discharge re-
leases a juror from the obligations to avoid discussing the case out-
side the jury room and to avoid external prejudicial information, the
potential that a jury reassembled after being discharged might be
tainted looms large. Thus, any suggestion of prejudice should counsel
a district court not to exercise its inherent power. The court should
determine whether any juror has been directly tainted and should al-
so take into account additional factors that can indirectly create prej-
udice, which at a minimum, include the length of delay between dis-
charge and recall, whether the jurors have spoken to anyone about
the case after discharge, and any emotional reactions to the verdict
witnessed by the jurors. Courts should also ask to what extent just-
dismissed jurors accessed their smartphones or the internet.
Applying those factors here, the District Court did not abuse its
discretion. The jury was out for only a few minutes, and, with the ex-
ception of one juror, remained inside the courthouse. The jurors did
Cite as: 579 U. S. ____ (2016) 3
Syllabus
not speak to any person about the case after discharge. And, there is
no indication in the record that the verdict generated any kind of
emotional reaction or electronic exchanges or searches that could
have tainted the jury. Pp. 7–10.
(c) Dietz’ call for a categorical bar on reempaneling a jury after dis-
charge is rejected. Even assuming that at common law a discharged
jury could never be brought back, the advent of modern federal trial
practice limits the common law’s relevance as to the specific question
raised here. There is no benefit to imposing a rule that says that as
soon as a jury is free to go a judge categorically cannot rescind that
order to correct an easily identified and fixable mistake. And Dietz’
“functional” discharge test, which turns on whether the jurors remain
within the district court’s “presence and control,” i.e., within the
courtroom, raises similar problems. Pp. 11–13.
794 F.3d 1093; affirmed.
SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and GINSBURG, BREYER, ALITO, and KAGAN, JJ., joined. THOMAS,
J., filed a dissenting opinion, in which KENNEDY, J., joined.
Cite as: 579 U. S. ____ (2016) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–458
_________________
ROCKY DIETZ, PETITIONER v. HILLARY BOULDIN
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 9, 2016]
JUSTICE SOTOMAYOR delivered the opinion of the Court.
In this case, a jury returned a legally impermissible
verdict. The trial judge did not realize the error until
shortly after he excused the jury. He brought the jury
back and ordered them to deliberate again to correct the
mistake. The question before us is whether a federal
district court can recall a jury it has discharged, or whether
the court can remedy the error only by ordering a new
trial.
This Court now holds that a federal district court has
the inherent power to rescind a jury discharge order and
recall a jury for further deliberations after identifying an
error in the jury’s verdict. Because the potential of taint­
ing jurors and the jury process after discharge is extraor­
dinarily high, however, this power is limited in duration
and scope, and must be exercised carefully to avoid any
potential prejudice.
I
Petitioner Rocky Dietz was driving through an intersec­
tion in Bozeman, Montana, when Hillary Bouldin ran the
red light and T-boned Dietz. As a result of the accident,
Dietz suffered injuries to his lower back that caused him
2 DIETZ v. BOULDIN
Opinion of the Court
severe pain. He sought physical therapy, steroid injec­
tions, and other medications to treat his pain. Dietz sued
Bouldin for negligence. Bouldin removed the case to
Federal District Court. See 28 U.S. C. §§1332, 1441.
At trial, Bouldin admitted that he was at fault for the
accident and that Dietz was injured as a result. Bouldin
also stipulated that Dietz’ medical expenses of $10,136
were reasonable and necessary as a result of the collision.
The only disputed issue at trial for the jury to resolve was
whether Dietz was entitled to damages above $10,136.
During deliberations, the jury sent the judge a note
asking: “ ‘Has the $10,136 medical expenses been paid; and
if so, by whom?’ ” App. 36. The court discussed the note
with the parties’ attorneys and told them he was unsure
whether the jurors understood that their verdict could not
be less than that stipulated amount, and that a mistrial
would be required if the jury did not return a verdict of at
least $10,136. The judge, however, with the consent of
both parties, told the jury that the information they
sought was not relevant to the verdict.
The jury returned a verdict in Dietz’ favor but awarded
him $0 in damages. The judge thanked the jury for its
service and ordered them “discharged,” telling the jurors
they were “free to go.” App. to Pet. for Cert. 25a. The
jurors gathered their things and left the courtroom.
A few minutes later, the court ordered the clerk to bring
the jurors back. Speaking with counsel outside the jury’s
presence, the court explained that it had “just stopped the
jury from leaving the building,” after realizing that the $0
verdict was not “legally possible in view of stipulated
damages exceeding $10,000.” Id., at 26a. The court sug­
gested two alternatives: (1) order a new trial or (2)
reempanel the jurors, instructing them to award at least
the stipulated damages, and ordering them to deliberate
anew.
Dietz’ attorney objected to reempaneling the discharged
Cite as: 579 U. S. ____ (2016) 3
Opinion of the Court
jurors, arguing that the jury was no longer capable of
returning a fair and impartial verdict. The court reiter­
ated that none of the jurors had left the building, and asked
the clerk whether any had even left the floor where the
courtroom was located. The clerk explained that only one
juror had left the building to get a hotel receipt and bring
it back.
Before the jurors returned, the judge told the parties
that he planned to order the jury to deliberate again and
reach a different verdict. The judge explained that he
would “hate to just throw away the money and time that’s
been expended in this trial.” Id., at 28a. When the jurors
returned to the courtroom, the judge questioned them as a
group and confirmed that they had not spoken to anyone
about the case.
The judge explained to the jurors the mistake in not
awarding the stipulated damages. He informed the jurors
that he was reempaneling them and would ask them to
start over with clarifying instructions. He asked the
jurors to confirm that they understood their duty and to
return the next morning to deliberate anew. The next
day, the reassembled jury returned a verdict awarding
Dietz $15,000 in damages.
On appeal, the Ninth Circuit affirmed. 794 F.3d 1093
(2015). The court held that a district court could
reempanel the jury shortly after dismissal as long as
during the period of dismissal, the jurors were not exposed
to any outside influences that would compromise their
ability to reconsider the verdict fairly. This Court granted
Dietz’ petition for a writ of certiorari to resolve confusion
in the Courts of Appeals on whether and when a federal
district court has the authority to recall a jury after dis­
charging it. 577 U. S. ___ (2016). See Wagner v. Jones,
758 F.3d 1030, 1034–1035 (CA8 2014), cert. denied, 575
U. S. ___ (2015); United States v. Figueroa, 683 F.3d 69,
72–73 (CA3 2012); United States v. Rojas, 617 F.3d 669,
4 DIETZ v. BOULDIN
Opinion of the Court
677–678 (CA2 2010); United States v. Marinari, 32 F.3d
1209, 1214 (CA7 1994); Summers v. United States, 11
F.2d 583, 585–587 (CA4 1926).
II
A
The Federal Rules of Civil Procedure set out many of the
specific powers of a federal district court. But they are not
all encompassing. They make no provision, for example,
for the power of a judge to hear a motion in limine,1 a
motion to dismiss for forum non conveniens,2 or many
other standard procedural devices trial courts around the
country use every day in service of Rule 1’s paramount
command: the just, speedy, and inexpensive resolution of
disputes.
Accordingly, this Court has long recognized that a dis­
trict court possesses inherent powers that are “governed
not by rule or statute but by the control necessarily vested
in courts to manage their own affairs so as to achieve the
orderly and expeditious disposition of cases.” Link v.
Wabash R. Co., 370 U.S. 626, 630–631 (1962); see also
United States v. Hudson, 7 Cranch 32, 34 (1812). Al­
though this Court has never precisely delineated the outer
boundaries of a district court’s inherent powers, the Court
has recognized certain limits on those powers.
First, the exercise of an inherent power must be a “rea­
sonable response to the problems and needs” confronting
the court’s fair administration of justice. Degen v. United
States, 517 U.S. 820, 823–824 (1996). Second, the exer­
cise of an inherent power cannot be contrary to any ex­
press grant of or limitation on the district court’s power
contained in a rule or statute. See id., at 823; Fed. Rule
Civ. Proc. 83(b) (districts courts can “regulate [their] prac­
——————
1 Luce v. United States, 469 U.S. 38, 41, n. 4 (1984).
2 Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507–508 (1947).
Cite as: 579 U. S. ____ (2016) 5
Opinion of the Court
tice in any manner consistent with federal law”); see, e.g.,
Bank of Nova Scotia v. United States, 487 U.S. 250, 254
(1988) (holding that a district court cannot invoke its
inherent power to circumvent the harmless-error inquiry
prescribed by Federal Rule of Criminal Procedure 52(a)).
These two principles—an inherent power must be a rea­
sonable response to a specific problem and the power
cannot contradict any express rule or statute—support the
conclusion that a district judge has a limited inherent
power to rescind a discharge order and recall a jury in a
civil case where the court discovers an error in the jury’s
verdict.
First, rescinding a discharge order and recalling the jury
can be a reasonable response to correcting an error in the
jury’s verdict in certain circumstances. In the normal
course, when a court recognizes an error in a verdict be­
fore it discharges the jury, it has the express power to give
the jury a curative instruction and order them to continue
deliberating. See Fed. Rule Civ. Proc. 51(b)(3) (“The court
. . . may instruct the jury at any time before the jury is
discharged”); 4 L. Sand et al., Modern Federal Jury In­
structions–Civil ¶78.01, Instruction 78–10, p. 78–31 (2015)
(Sand) (when a jury returns an inconsistent verdict,
“[r]esubmitting the verdict . . . to resolve the inconsisten­
cies is often the preferable course”). The decision to recall
a jury to give them what would be an identical predis­
charge curative instruction could be, depending on the
circumstances, similarly reasonable.
This conclusion is buttressed by this Court’s prior cases
affirming a district court’s inherent authority in analogous
circumstances. For example, the Court has recognized
that a district court ordinarily has the power to modify or
rescind its orders at any point prior to final judgment in a
civil case. Marconi Wireless Telegraph Co. of America v.
United States, 320 U.S. 1, 47–48 (1943); see also Fed.
Rule Civ. Proc. 54(b) (district court can revise partial final
6 DIETZ v. BOULDIN
Opinion of the Court
judgment order absent certification of finality); Fernandez
v. United States, 81 S. Ct. 642, 644, 5 L. Ed. 2d 683 (1961)
(Harlan, J., in chambers) (district court has inherent
power to revoke order granting bail).
Here, the District Court rescinded its order discharging
the jury before it issued a final judgment. Rescinding the
discharge order restores the legal status quo before the
court dismissed the jury. The District Court is thus free to
reinstruct the jury under Rule 51(b)(3).
This Court has also held that district courts have the
inherent authority to manage their dockets and court­
rooms with a view toward the efficient and expedient
resolution of cases. See, e.g., Landis v. North American
Co., 299 U.S. 248, 254 (1936) (district court has inherent
power to stay proceedings pending resolution of parallel
actions in other courts); Link, 370 U.S., at 631–632 (dis­
trict court has inherent power to dismiss case sua sponte
for failure to prosecute); Chambers v. NASCO, Inc., 501
U.S. 32, 44 (1991) (district court has inherent power to
vacate judgment procured by fraud); United States v.
Morgan, 307 U.S. 183, 197–198 (1939) (district court has
inherent power to stay disbursement of funds until revised
payments are finally adjudicated).
This Court’s recognition of these other inherent powers
designed to resolve cases expeditiously is consistent with
recognizing an inherent power to recall a discharged jury
and reempanel the jurors with curative instructions.
Compared to the alternative of conducting a new trial,
recall can save the parties, the court, and society the
costly time and litigation expense of conducting a new
trial with a new set of jurors.
Second, rescinding a discharge order to recall a jury
does not violate any other rule or statute. Rule 51(b)(3)
states that a court “may instruct the jury at any time
before the jury is discharged.” A judge obviously cannot
instruct a jury that is discharged—it is no longer there.
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Opinion of the Court
But there is no implicit limitation in Rule 51(b)(3) that
prohibits a court from rescinding its discharge order and
reassembling the jury. See Link, 370 U.S., at 630 (hold­
ing that Rule 41(b)’s allowance for a party to move to
dismiss for failure to prosecute did not implicitly abrogate
the court’s power to dismiss sua sponte). Other rules
dealing with postverdict remedies such as a motion for a
new trial or a motion for judgment notwithstanding the
verdict, see Fed. Rules Civ. Proc. 50(b), 59(a)(1)(A), simi­
larly do not place limits on a court’s ability to rescind a
prior order discharging a jury. Accordingly, a federal
district court can rescind a discharge order and recall a
jury in a civil case as an exercise of its inherent powers.
B
Just because a district court has the inherent power to
rescind a discharge order does not mean that it is appro­
priate to use that power in every case. Because the exer­
cise of an inherent power in the interest of promoting
efficiency may risk undermining other vital interests
related to the fair administration of justice, a district
court’s inherent powers must be exercised with restraint.
See Chambers, 501 U.S., at 44 (“Because of their very
potency, inherent powers must be exercised with restraint
and discretion”).
The inherent power to rescind a discharge order and
recall a dismissed jury, therefore, must be carefully cir­
cumscribed, especially in light of the guarantee of an
impartial jury that is vital to the fair administration of
justice. This Court’s precedents implementing this guar­
antee have noted various external influences that can
taint a juror. E.g., Remmer v. United States, 347 U.S.
227, 229 (1954) (“In a criminal case, any private communi­
cation, contact, or tampering, directly or indirectly, with a
juror during a trial about the matter pending before the
jury is, for obvious reasons, deemed presumptively preju­
8 DIETZ v. BOULDIN
Opinion of the Court
dicial”). Parties can accordingly ask that a juror be ex­
cused during trial for good cause, Fed. Rule Civ. Proc.
47(c), or challenge jury verdicts based on improper extra­
neous influences such as prejudicial information not ad­
mitted into evidence, comments from a court employee
about the defendant, or bribes offered to a juror, Warger v.
Shauers, 574 U. S. ___, ___ (2014) (slip op., at 10) (citing
Tanner v. United States, 483 U.S. 107, 117 (1987)); see
also Mattox v. United States, 146 U.S. 140, 149–150
(1892) (external prejudicial information); Parker v. Glad-
den, 385 U.S. 363, 365 (1966) (per curiam) (bailiff com­
ments on defendant); Remmer, 347 U.S., at 228–230
(bribe offered to juror).
The potential for taint looms even larger when a jury is
reassembled after being discharged. While discharged,
jurors are freed from instructions from the court requiring
them not to discuss the case with others outside the jury
room and to avoid external prejudicial information. See,
e.g., 4 Sand ¶71.02 (standard instruction to avoid extrane­
ous influences); see also id., ¶71.01, Instructions 71–12 to
71–14 (avoid publicity). For example, it is not uncommon
for attorneys or court staff to talk to jurors postdischarge
for their feedback on the trial. See 1 K. O’Malley et al.,
Federal Jury Practice and Instructions §9:8 (6th ed. 2006)
(debating appropriateness of practice).
Any suggestion of prejudice in recalling a discharged
jury should counsel a district court not to exercise its
inherent power. A district court that is considering
whether it should rescind a discharge order and recall a
jury to correct an error or instead order a new trial should,
of course, determine whether any juror has been directly
tainted—for example, if a juror discusses the strength of
the evidence with nonjurors or overhears others talking
about the strength of the evidence. But the court should
also take into account at least the following additional
factors that can indirectly create prejudice in this context,
Cite as: 579 U. S. ____ (2016) 9
Opinion of the Court
any of which standing alone could be dispositive in a
particular case.
First, the length of delay between discharge and recall.
The longer the jury has been discharged, the greater the
likelihood of prejudice. Freed from the crucible of the
jury’s group decisionmaking enterprise, discharged jurors
may begin to forget key facts, arguments, or instructions
from the court. In taking off their juror “hats” and return­
ing to their lives, they may lose sight of the vital collective
role they played in the impartial administration of justice.
And they are more likely to be exposed to potentially
prejudicial sources of information or discuss the case with
others, even if they do not realize they have done so or
forget when questioned after being recalled by the court.
How long is too long is left to the discretion of the district
court, but it could be as short as even a few minutes,
depending on the case.
Second, whether the jurors have spoken to anyone about
the case after discharge. This could include court staff,
attorneys and litigants, press and sketch artists, witnesses,
spouses, friends, and so on. Even apparently innocu-
ous comments about the case from someone like a court­
room deputy such as “job well done” may be sufficient to
taint a discharged juror who might then resist reconsider­
ing her decision.
Third, the reaction to the verdict. Trials are society’s
way of channeling disputes into fair and impartial resolu­
tions. But these disputes can be bitter and emotional.
And, depending on the case, those emotions may be broad-
casted to the jury in response to their verdict. Shock,
gasps, crying, cheers, and yelling are common reactions to
a jury verdict—whether as a verdict is announced in the
courtroom or seen in the corridors after discharge.
In such a case, there is a high risk that emotional reac­
tions will cause jurors to begin to reconsider their decision
and ask themselves, “Did I make the right call?” Of
10 DIETZ v. BOULDIN
Opinion of the Court
course, this concern would be present even in a decision to
reinstruct the jury to fix an error after the verdict is an­
nounced but before they are discharged. See Fed. Rule
Civ. Proc. 51(b)(3). Even so, after discharging jurors from
their obligations and the passage of time, a judge should
be reluctant to reempanel a jury that has witnessed emo­
tional reactions to its verdict.
In considering these and any other relevant factors,
courts should also ask to what extent just-dismissed jurors
accessed their smartphones or the internet, which provide
other avenues for potential prejudice. It is a now-
ingrained instinct to check our phones whenever possible.
Immediately after discharge, a juror could text something
about the case to a spouse, research an aspect of the evi­
dence on Google, or read reactions to a verdict on Twitter.
Prejudice can come through a whisper or a byte.
Finally, we caution that our recognition here of a court’s
inherent power to recall a jury is limited to civil cases
only. Given additional concerns in criminal cases, such as
attachment of the double jeopardy bar, we do not address
here whether it would be appropriate to recall a jury after
discharge in a criminal case. See Smith v. Massachusetts,
543 U.S. 462, 473–474 (2005).
Applying these factors, the District Court here did not
abuse its discretion by rescinding its discharge order and
recalling the jury to deliberate further. The jury was out
for only a few minutes after discharge. Only one juror
may have left the courthouse, apparently to retrieve a
hotel receipt. The jurors did not speak to any person
about the case after discharge. There is no indication in
the record that this run-of-the-mill civil case—where the
parties agreed that the defendant was liable and disputed
damages only—generated any kind of emotional reaction
or electronic exchanges or searches that could have tainted
the jury. There was no apparent potential for prejudice
by recalling the jury here.
Cite as: 579 U. S. ____ (2016) 11
Opinion of the Court
III
Dietz asks us to impose a categorical bar on reempanel­
ing a jury after it has been discharged. He contends that,
at common law, a jury once discharged could never be
brought back together again. Accordingly, he argues,
without a “ ‘long unquestioned’ power” of courts recalling
juries, a federal district court lacks the inherent power to
rescind a discharge order. See Carlisle v. United States,
517 U.S. 416, 426–427 (1996) (district court lacked inher­
ent authority to grant untimely motion for judgment of
acquittal).
We disagree. Even assuming that the common-law
tradition is as clear as Dietz contends, but see, e.g., Prus-
sel v. Knowles, 5 Miss. 90, 95–97 (1839) (allowing postdis­
charge recall), the common law is less helpful to under­
standing modern civil trial practice. At common law, any
error in the process of rendering a verdict, no matter how
technical or inconsequential, could be remedied only by
ordering a new trial. But modern trial practice did away
with this system, replacing it with the harmless-error
standard now embodied in Rule 61. See Kotteakos v.
United States, 328 U.S. 750, 758, 760 (1946) (recognizing
predecessor statute to Rule 61 codified the “salutary pol-
icy” of “substitu[ing] judgment for automatic . . . rules”).
Jury practice itself no longer follows the strictures of the
common law. The common law required that juries be
sequestered from the rest of society until they reached a
verdict. Tellier, Separation or Dispersal of Jury in Civil
Case After Submission, 77 A. L. R. 2d 1086 (1961). This
generally meant no going home at night, no lunch breaks,
no dispersing at all until they reached a verdict. Id., §2;
see also Lester v. Stanley, 15 F. Cas. 396, 396–397 (No.
8,277) (Conn. 1808) (Livingston, Circuit Justice) (following
common law). Courts are no longer required to impose
these requirements on juries in order to prevent possible
prejudice. See Nebraska Press Assn. v. Stuart, 427 U.S.
12 DIETZ v. BOULDIN
Opinion of the Court
539, 554 (1976) (cases requiring sequestration to avoid
trial publicity “are relatively rare”); Drake v. Clark, 14
F.3d 351, 358 (CA7 1994) (“Sequestration is an extreme
measure, one of the most burdensome tools of the many
available to assure a fair trial”). Accordingly, while courts
should not think they are generally free to discover new
inherent powers that are contrary to civil practice as
recognized in the common law, see Carlisle, 517 U.S., at
426–427, the advent of modern federal trial practice limits
the common law’s relevance as to the specific question
whether a judge can recall a just-discharged jury.
Dietz also argues that the nature of a jury’s deliberative
process means that something about the jury is irrevoca­
bly broken once the jurors are told they are free to go.
According to Dietz, with their bond broken, the jurors
cannot be brought back together again as a “jury.” In
other words, once a jury is discharged, a court can never
put the jury back together again by rescinding its dis­
charge order—legally or metaphysically.
We reject this “Humpty Dumpty” theory of the jury.
Juries are of course an integral and special part of the
American system of civil justice. Our system cannot func­
tion without the dedication of citizens coming together to
perform their civic duty and resolve disputes.
But there is nothing about the jury as an entity that
ceases to exist simply because the judge tells the jury that
they are excused from further service. A discharge order
is not a magical invocation. It is an order, like any other
order.
And, like any order, it can be issued by mistake. All
judges make mistakes. (Even us.) See Brown v. Allen,
344 U.S. 443, 540 (1953) (Jackson, J., concurring in judg­
ment) (“We are not final because we are infallible, but we
are infallible only because we are final”). There is no
benefit to imposing a rule that says that as soon as a jury
is free to go a judge categorically cannot rescind that order
Cite as: 579 U. S. ____ (2016) 13
Opinion of the Court
to correct an easily identified and fixable mistake, even as
the jurors are still in the courtroom collecting their things.
Dietz does not suggest the Court adopt a magic-words
rule, but instead urges the adoption of a “functional”
discharge test based on whether the jurors remain within
the “presence and control” of the district court, where
control is limited to the courtroom itself. Tr. of Oral Arg.
5–7. Similarly, the dissent suggests that it is the chance
“to mingle with bystanders” that creates a discharge that
cannot be undone. Post, at 1–2 (opinion of THOMAS, J.)
(internal quotation marks and brackets omitted). These
tests do not avoid the problems that Dietz and the dissent
identify with a prejudice inquiry. Under a courtroom test,
what if a juror has one foot over the line? What if she just
stepped out to use the restroom? Under a courthouse test,
what if she is just outside the doors? Reached her car in
the parking lot? Under a bystander test, is a courtroom
deputy in the jury room a mingling bystander? There is
no good reason to prefer a test based on geography or
identity over an inquiry focused on potential prejudice.
Finally, Dietz argues that the District Court in this case
erred by questioning the discharged jurors as a group
before reempaneling them instead of questioning each and
every juror individually. While individual questioning
could be the better practice in many circumstances, Dietz’
attorney raised no objection to this part of the court’s
process. We decline to review this forfeited objection. See
Fed. Rule Civ. Proc. 46.
* * *
Federal district courts have a limited inherent power to
rescind a discharge order and recall a jury in a civil case.
District courts should exercise this power cautiously and
courts of appeals should review its invocation carefully.
That was done here. The judgment of the Court of Ap­
peals for the Ninth Circuit is therefore
Affirmed.
Cite as: 579 U. S. ____ (2016) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–458
_________________
ROCKY DIETZ, PETITIONER v. HILLARY BOULDIN
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 9, 2016]
JUSTICE THOMAS, with whom JUSTICE KENNEDY joins,
dissenting.
Justice Holmes famously quipped, “It is revolting to
have no better reason for a rule of law than that so it was
laid down in the time of Henry IV.” The Path of the Law,
10 Harv. L. Rev. 457, 469 (1897). But old rules often
stand the test of time because wisdom underlies them.
The common-law rule prohibiting a judge from recalling
the jury after it is discharged is one such rule. Even
though contemporary jurors are not formally sequestered
as they were at common law, they are still subject to
significant restrictions designed to prevent undue influ-
ence. And in today’s world of cellphones, wireless Inter-
net, and 24/7 news coverage, the rationale that undergirds
the bright-line rule supplied by the common law is even
more relevant: Jurors may easily come across prejudicial
information when, after trial, the court lifts their re-
strictions on outside information. I would therefore hew to
that rule rather than adopt the majority’s malleable multi-
factor test for prejudice. I respectfully dissent.
At common law, once the judge discharged the jury and
the jury could interact with the public, the judge could not
recall the jury to amend the verdict. See Sargent v. State,
11 Ohio 472, 473 (1842); Mills v. Commonwealth, 34 Va.
751, 752 (1836); Little v. Larrabee, 2 Me. 37, 40 (1822). It
was not “ ‘the mere announcement’ ” that the jury was
2 DIETZ v. BOULDIN
THOMAS, J., dissenting
discharged, but rather the chance to “ ‘mingl[e] with the
bystanders’ ” that triggered the prohibition against re-
calling them. Summers v. United States, 11 F.2d 583, 586
(CA4 1926) (quoting A. Abbott, A Brief for the Trial of
Criminal Cases 730 (2d ed. 1902)). At that point, the court
could not fix a substantive error made by the jury, includ-
ing “returning a verdict against the wrong party; or, if not
so, for a larger or smaller sum than they intended.” Little,
supra, at 39; see also Jackson v. Williamson, 2 T. R. 281,
281–282, 100 Eng. Rep. 153 (K. B. 1788) (refusing to allow
an amendment to the verdict after the jury was discharged
even though all jurors signed an affidavit explaining that
they intended to award more in damages).*
The theory underpinning this rule was simple: Jurors,
as the judges of fact, must avoid the possibility of preju-
dice. They have long been prohibited from having ex parte
communications with the parties during a trial or receiv-
ing evidence in private. 3 W. Blackstone, Commentaries
*375–*376. But once the jury is discharged, the jurors
“become accessible to the parties and subject to their
influence.” Little, supra, at 39. In drawing the line at the
opportunity to mingle, the common-law rule was prophy-
lactic. But that is a desirable feature when public confi-
dence in the judicial system is at stake.
It is true, as the Court explains, that jurors are no longer
sequestered from the public. Ante, at 11. But remnants
of sequestration remain. Jurors are prohibited from
ex parte contact with the parties and the judge. They are
not allowed to gather outside information about the case.
And, courthouses have private rooms for jurors, to shield
them from ex parte information during recesses and
deliberations.
——————
* Although courts could not fix substantive errors by recalling the
jury, they could correct clerical errors in the reporting of the verdict.
See Little v. Larrabee, 2 Me. 37, 38 (1822).
Cite as: 579 U. S. ____ (2016) 3
THOMAS, J., dissenting
Even without full sequestration, the common-law rule
remains sensible and administrable. After discharge, the
court has no power to impose restrictions on jurors, and
jurors are no longer under oath to obey them. Jurors may
access their cellphones and get public information about
the case. They may talk to counsel or the parties. They
may overhear comments in the hallway as they leave the
courtroom. And they may reflect on the case—away from
the pressure of the jury room—in a way that could induce
them to change their minds. The resulting prejudice can
be hard to detect. And a litigant who suddenly finds
himself on the losing end of a materially different verdict
may be left to wonder what may have happened in the
interval between the jury’s discharge and its new verdict.
Granting a new trial may be inconvenient, but at least
litigants and the public will be more confident that the
verdict was not contaminated by improper influence after
the trial has ended. And under this bright-line rule, dis-
trict courts would take greater care in discharging the
jury.
In contrast, the only thing that is clear about the major-
ity’s multifactor test is that it will produce more litigation.
This multifactor test may aid in identifying relevant facts
for analysis, but—like most multifactor tests—it leaves
courts adrift once those facts have been identified. The
majority instructs district judges to look at “the length of
delay between discharge and recall,” “whether the jurors
have spoken to anyone about the case after discharge,”
“the reaction to the verdict,” and whether jurors have had
access to their cellphones or the Internet. Ante, at 9–10.
But in collecting these factors, the majority offers little
guidance on how courts should apply them. Is one hour
too long? How about two hours or two days? Does a single
Internet search by a juror preclude recalling the entire
jury? How many factors must be present to shift the
balance against recalling the jury? All the majority says is
4 DIETZ v. BOULDIN
THOMAS, J., dissenting
that any factor “standing alone could be dispositive in a
particular case.” Ante, at 8–9 (emphasis added).
The majority’s factors thus raise more questions than
they answer. Parties will expend enormous effort litigat-
ing and appealing these questions. And when the Courts
of Appeals inevitably fail to agree on what constitutes
prejudice, we will be called on again to sort it out. As the
Court of King’s Bench recognized over two centuries ago,
“it was better that the present plaintiff should suffer an
inconvenience” than to head down this murky path. Jack-
son, supra, at 282, 100 Eng. Rep., at 153.
All rules have their drawbacks. The common-law rule,
on occasion, may unnecessarily force a district court to
redo a trial for a minor substantive mistake in the verdict.
But the majority’s multifactor test will only create more
confusion. It would be much simpler to instruct the dis-
trict courts, when they find a mistake in the verdict after
the jury is dismissed, to hold a new trial.
The jurors here had the chance to mingle with the out-
side world after the District Court’s discharge order re-
leased them from their oaths. After the announcement of
discharge, the jurors entered public spaces in which inter-
action with nonjurors was possible. At that point, the
jurors no longer were within the court’s control and, there-
fore, were in fact discharged. Although the record does
not indicate one way or the other, it is also possible that
the jurors had access to cellphones or other wireless devices
in circumstances where they understood themselves to
have been released from any directions or limitations the
judge had imposed on the use of those devices during trial.
Because the District Court reconvened the jury after
discharge to deliberate anew, I would reverse the Court of
Appeals’ judgment affirming the verdict and remand for a
new trial. I respectfully dissent.