Dietz v. Bouldin

(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.

Cite as: 579 U. S. ____ (2016) 7

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.