                  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-
