United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

Nos. 96-2680/3308 

___________

James Earl Harris, Husband; *

Luvenia Harris, Wife, *

*

Appellants/Cross-appellees, * Appeals from the United States

* District Court for the

v. * Eastern District of Arkansas

*

Folk Construction Company, *

*

Appellees/Cross-appellants. *

___________

 Submitted: September 10, 1997

 Filed: March 6, 1998

___________

Before McMILLIAN, ROSS and MURPHY, Circuit Judges.

___________

McMILLIAN, Circuit Judge.

James Earl Harris (“Harris”) appeals from a final judgment entered

in the United States District Court for the Eastern District of Arkansas

upon a jury verdict finding in favor of Folk Construction Company (“Folk”).

For reversal, Harris argues that the district court erred in holding that

(1) the magistrate judge had proper authority to
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supervise jury deliberations and to dismiss a juror for cause; (2) the

magistrate judge’s ex parte communications with the juror were proper; and

(3) the jury instruction that defined the term “seaman” was a correct

statement of law. Harris also challenges several evidentiary rulings of

the district court.

On cross-appeal, Folk contests the district court’s denial of its

motion for costs, pursuant to Rule 68 of the Federal Rules of Civil

Procedure. In addition, Folk moves this court to amend the record to

include the affidavit of the deputy courtroom clerk of the district court,

Mary Ann Rawls.

For the reasons discussed below, we reverse the judgment of the

district court, remand the case for further proceedings, and dismiss Folk’s

motion and cross-appeal as moot.

Jurisdiction

Jurisdiction was proper in the district court based upon 46 U.S.C.

§ 688 et seq., and 28 U.S.C. § 1332. Jurisdiction on appeal is proper

based upon 28 U.S.C. § 1291. The notice of appeal was timely filed under

Rule 4(a) of the Federal Rules of Appellate Procedure.

Background

For purposes of this opinion, only a brief outline of the facts

supporting the underlying claims is required. Harris was injured on

September 4, 1991, while working on the crew of the dredge ship Cathy M.

At the time in question, the Cathy M. was dredging the St. Francis River

and the St. Francis River basin in Arkansas pursuant to a contract between

Folk and the United States Corps of Engineers. Folk ran the dredging

operation. Harris was an employee of Folk.
The suit was originally filed by Harris and his wife, Luvenia Harris, who

1

asserted a claim against Folk for loss of society and consortium. The district court

dismissed her claim by order dated August 15, 1995. In addition, the district court

dismissed (James Earl) Harris’s claim for punitive damages by order of February 1,

1996, and reaffirmed the dismissal by order of May 3, 1996. Harris asserts that his

failure to challenge these rulings in his briefs on appeal “should not be deemed an

acceptance of the Court’s rulings on these issues.” Appellant’s Brief at 5. Harris

acknowledges that these issues would be rendered moot if this court affirms the

judgment of the district court. Id. However, by failing to assert grounds for reversal

of these orders in his briefs, Harris is deemed to have waived these issues on appeal.

See Fed. R. Civ. P. 28(a)(3),(6); see also Rogers v. Carter, No. 96-1916, 1998 WL

15220 at *6 n.1 (8 Cir. Jan. 20, 1998). th

Federal Rules of Civil Procedure Form 34A effects referral to a United States 2

Magistrate Judge any proceedings, including trial and entry of judgment, in designated

civil matters in accordance with 28 U.S.C. § 636(c) and upon the consent of the parties.

See Fed. R. Civ. P. Form 34A.

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On December 15, 1993, Harris filed a claim to recover for the

injuries that he sustained in the accident. Harris’s causes of action

1

were based on the Jones Act, 46 U.S.C. § 688 et seq., and the general

maritime doctrine of unseaworthiness. Each claim required Harris to prove

that he was a “seaman” at the time of the accident. A jury was charged

with determining this discrete issue.

The trial commenced on May 6, 1996, in Pine Bluff, Arkansas, with a

district judge presiding. The jury began deliberations on Friday, May 10,

1996. Having not reached a verdict by the close of court, the jury was

instructed to return on Monday, May 13, 1996, to continue deliberations.

However, in reliance on the parties’ estimations that the case would

conclude on May 9, 1996, the district judge had previously scheduled a

trial to begin in Little Rock, Arkansas, on May 13, 1996. In light of this

conflict, the deputy courtroom clerk, Mary Ann Rawls, advised counsel for

the parties that a magistrate judge would preside over jury deliberations.

Neither party objected to this arrangement. However, a formal consent form

was not signed by either party nor did either party give another form of 2

express consent.
Waschalk asked Bellew to read the note. Bellew refused to do so and told her 3

that he would give it to the judge.

The note states in full: 4

Your Honeur,

Mr. Harris will not get a fair trial with this jury. Friday as we went

into the jury room to deliberate, one juror said “Let’s pull an O.J. and get

in and out of here.

Another juror threw down her notes and said “My mind is made

up! She put her hand on another jurors back and said “And your mind is

the same as my mind”!

When I asked the foreman to have something read back to me, she

said that I did not need to know. I asked for a ruling, she would not send

out for one. Another juror said she could tell me what I wanted to know.

I said that I was not supposed to ask another juror. After Jim said that he

would vote with the crowd he said “But I still believe that Harris is a

seaman.”

The foreman said to me “Convince us that Harris is a seaman”! I

said “O.K. Let me think.” this juror said “She will not convince me. My

mind is made up and I will not change it. I said “I will ask the judge for

a mistrial”. One juror said “You will never get a mistrial. You will be

sent back in and to stay until we all agree. The rest of the time with going

over Harris tax return & making fun of him.

/s/ Loraine Waschalk

Juror #1

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On Monday, May 13, 1996, eight of the nine jurors reported to the

jury room. Juror Loraine Waschalk (“Waschalk”) refused. Instead, she went

to Deputy United States Marshal Max Bellew (“Bellew”) and told him that she

“was scared of the other jurors” and that “she was unsure of her safety

within the jury room.” Order at 2 (July 31, 1996). Waschalk also gave

Bellew a note to deliver to the magistrate judge which stated, among other

things, that Harris would not get a fair trial with the empaneled jury.3

The note also mentioned Waschalk’s intent to request a mistrial.4
Joint Appendix, Vol. III, at 613 (emphasis in original). 

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Deputy Bellew was put under oath and his statements regarding these

events are part of the record. See Joint Appendix, Vol. III at 702-03

(Transcript of Verdict of the Jury, May 13, 1996, at 3-4). Bellew noted

that Waschalk looked scared and upset. He stated that he “tried to console

her, but she had the idea [he] was trying to lock her up, [and] . . . began

talking loud and advising [him] she wanted a lawyer.” Order at 2 (July 31,

1996). Bellew then took Waschalk to the clerk’s office where she

eventually calmed down some and told Bellew that she had gotten very little

sleep over the weekend, was very worried for her safety, and did not want

to be with the jury any longer. Id.

After speaking to a member of the district court’s staff, Bellew

faxed Waschalk’s note to the district judge. The district judge reviewed

the note, obtained Bellew’s oral statement, and then instructed the

magistrate judge to bring Waschalk into chambers and discuss the matter

with Waschalk. The district judge further instructed the magistrate judge

“not only to listen to Ms. Waschalk’s concerns and feelings about the

situation and to determine her willingness to continue on the jury, but

also to gauge her state of mind and emotional well-being.” Id. at 2-3.

The district judge authorized the magistrate judge to dismiss Waschalk from

the jury if the magistrate judge determined that she was unwilling to

continue her service and too emotionally unstable to serve competently.

Id. 

The magistrate judge met with Waschalk in chambers without the

knowledge of either party’s counsel. This conversation was not recorded

as part of the record nor were there any reported witnesses. Based on this

conversation and Waschalk’s note, the magistrate judge determined that

Waschalk was “unreasonably upset” and “very
Fed. R. Civ. P. 47(c). 5

Fed. R. Civ. P. 58. 6

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emotionally unstable.” Order at 3 (July 31, 1996). The magistrate judge

then dismissed Waschalk for cause pursuant to Rule 47(c) of the Federal

Rules of Civil Procedure.5

The magistrate judge then convened the parties and informed them of

what had transpired. Harris objected to Waschalk’s dismissal and moved for

a mistrial. This motion was denied by the magistrate judge. The eight

remaining jurors were called back into the courtroom and advised that

Waschalk had been excused from further participation in the deliberations

and that “the reason behind [Waschalk’s dismissal] is not anything that

[they] need[ed] to concern [themselves] with.” Joint Appendix, Vol. III

at 708 (Transcript of Verdict of the Jury, May 13, 1996, at 9). The

magistrate judge then directed the jury to return to the jury room and

resume deliberating in a manner consistent with the district judge’s

earlier instructions. 

After only seven minutes of deliberation, the jury reached a

unanimous verdict in favor of Folk. Harris renewed his motion for a

mistrial, which the magistrate judge again denied. The district judge

later entered a judgment consistent with the jury verdict. Harris in turn

moved the district court for a new trial, for relief from judgment or

order, for a post-trial evidentiary hearing, and to complete the record.

Folk filed a motion for costs pursuant to Rule 58 of the Federal Rules of

Civil Procedure. By order dated July 31, 1996, the district judge denied 6

each of these motions. Both parties appeal. 

Discussion

Harris argues that the district court erred in authorizing a

magistrate judge to supervise the jury deliberations and, more important,

to dismiss a juror because the
28 U.S.C. § 636(c)(1), provides in part that: 7

Upon the consent of the parties, a full-time magistrate judge . . . may

conduct any or all proceedings in a jury or non-jury civil matter and order

the entry of judgment in the case, when specially designated to exercise

such jurisdiction by the district court or courts [she or] he serves. 

Id.

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magistrate judge did not have authority to perform these duties under the

Federal Magistrate Judges Act (the “Act”), 28 U.S.C. § 631 et seq. Harris

emphasizes that he did not consent to the magistrate judge’s authority as

required by 28 U.S.C. § 636(c), and that such authority was not properly

delegated to the magistrate judge by the district judge. 

The Act provides that a magistrate judge has the authority to preside

over various aspects of civil litigation in two situations. First, the

parties to a civil matter may consent to the magistrate judge performing

any and all proceedings, including those adjudicatory duties traditionally

reserved for Article III judges. See id.; Fed. R. Civ. P. Form 34A; see 7

also Lehman Bros. Kuhn Loeb, Inc. v. Clark Oil & Ref. Corp., 739 F.2d 1313,

1315 (8 Cir. 1984) (en banc) (upholding the constitutionality of 28

th

U.S.C. § 636(c) and further holding that, “insofar as Article III protects

individual litigants, those protections can be waived”), cert. denied, 469

U.S. 1158 (1985). The Act also has a catchall provision which allows a

judge to delegate to a magistrate judge “additional duties” that are not

inconsistent with the Constitution and laws of the United States. 28

U.S.C. § 636(b)(3). The facts of the instant case implicate both of these

provisions.

Folk argues that Harris consented to the magistrate judge’s

supervising the jury deliberations, including the magistrate judge’s

authority to dismiss a juror pursuant to Rule 47(c) of the Federal Rules

of Civil Procedure, by failing to object to the magistrate
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judge’s authority at any stage of the trial. In short, Folk maintains that

Harris waived the consent requirement in § 636(c). In addition, Folk

contends that the district judge properly delegated authority to the

magistrate judge as an additional duty, pursuant to § 636(b)(3). To

resolve these issues, this court must determine whether the requirements

of § 636(c), which expressly authorize the magistrate judge’s authority in

question, were met, and, if not, whether the functions performed by the

magistrate judge in this case qualify as “additional duties” that are

delegable pursuant to § 636(b)(3). 

We turn first to Folk’s waiver argument which caselaw in this circuit

makes clear is without merit. Indeed, we have consistently held that

“‘[s]ection 636(c) requires a clear and unambiguous statement in the record

of the affected parties’ consent to the magistrate judge’s jurisdiction.’”

See Reiter v. Honeywell, 104 F.3d 1071, 1073 (8 Cir. 1997) (Reiter)

th

(quoting J.C. Henry v. Tri-Services, Inc., 33 F.3d 931, 933 (8 Cir. 1994) th

(J.C. Henry) (rejecting waiver argument and remanding for new trial where

parties neither objected nor expressly consented to magistrate judge’s

authority in conducting jury trial)); see also Gleason v. Secretary of

Health and Human Servs., 777 F.2d 1324, 1324-25 (8 Cir. 1985) (dismissing th

appeal from magistrate judge ’s ruling on motion for attorneys’ fees for

lack of final judgment where there was no “clear and unambiguous statement

in the record of the affected parties’ consent to the magistrate judge

judge’s jurisdiction”)). This consent requirement is the basis of §

636(c)’s constitutionality. See, e.g., Adams v. Heckler, 794 F.2d 303, 307

(7 Cir. 1986) (“[V]alid consent is the linchpin of the constitutionality th

of 28 U.S.C. § 636(c).”). Without clear and unambiguous consent,

litigants cannot be deemed to have forfeited their right to proceed in

front of an Article III judge. See J.C. Henry, 33 F.3d at 933 (holding

that magistrate judge lacked authority to enter final judgment where

record contained no clear statement of consent by party which had not yet

entered appearance in action). Moreover, in Reiter, this court cautioned

that “[w]e will not lightly find a waiver of that consent.” 104 F.3d at

1074 (adopting Eleventh Circuit’s rationale in
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Hall v. Sharpe, 812 F.2d 644, 649 (11 Cir. 1987), that waiver approach

th

“does violence” to Congress’s consent requirement in section 636(c)).

Folk relies, among other cases, on Peretz v. United States, 501 U.S.

923, 932 (1991), in which the Supreme Court held that “[t]here is no

Article III problem when a district court judge permits a magistrate judge

to conduct voir dire in accordance with the defendant’s consent.” Id. We

find that Peretz is the most persuasive case in favor of Folk’s waiver

argument. However, this court has distinguished Peretz from cases like the

instant one where there was no discernible statement of consent by the

litigants. See Reiter, 104 F.3d at 1073 (noting that in Peretz “the

parties expressly consented to the magistrate judge’s conducting of the

voir dire, the action about which they later complained” on appeal).

Indeed, in Peretz the Court emphasized the significance of the parties’

express consent, stating, “[P]etitioner’s counsel, rather than objecting

to the magistrate judge’s role affirmatively welcomed it.” Peretz, 501

U.S. at 932 (emphasis added). Thus, there is little support for Folk’s

position in the cases on which it relies.

The record in the instant case reveals and indeed, Folk concedes,

that neither party gave express consent to the magistrate judge to

supervise the jury, evaluate a juror’s competency or, more important, to

dismiss a juror. Instead, the parties merely failed to object to the

magistrate judge’s authority after being informed that a magistrate judge

would oversee jury deliberations. Thus, Harris’s silence, if deemed

consent, is neither a clear nor unambiguous statement of consent. We

therefore conclude that there was no valid consent under § 636(c).

Moreover, while parties are encouraged to challenge as early as possible

the delegation of authority to a magistrate judge, failure to do so

immediately does not constitute waiver of the right to appeal. See Fowler

v. Jones, 899 F.2d 1088, 1092-93 (11 Cir. 1990) (rejecting waiver

th

argument and reversing and remanding for new trial where parties failed to

contest magistrate judge’s authority until after trial). Accordingly, we

hold that Harris did not
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consent to the magistrate judge’s jurisdiction nor did Harris waive his

right to challenge that authority on appeal. 

Where no consent is given under § 636(c), a magistrate judge is

confined to his or her limited authority under the remaining provisions of

the Act. Folk argues that the magistrate judge’s authority to supervise

the jury deliberations, including the dismissal of a juror, was properly

delegated as an additional duty pursuant to § 636(b)(3). To be sure, “[a]

purported section 636(b) referral may not act as a section 636(c) referral

and bypass the consent requirement of that section.” Reiter, 104 F.3d at

1073-74 (citing In re Wickline, 796 F.2d 1055, 1058 (8 Cir. 1986)).

th

Therefore, the authority conferred upon the magistrate judge in the instant

case must be independently delegable to facilitate the performance of

“additional duties.” See 28 U.S.C. § 636(b)(3).

Harris maintains that § 636(b)(3) cannot be the proper basis for the

magistrate judge’s exercise of authority. Harris urges that, “[i]f a

magistrate [judge] is prohibited from selecting a jury at the onset of the

proceedings because of the nature of the function, it follows, a fortiori,

that he is also prohibited from communicating with a juror regarding her

competency to proceed with deliberations.” Appellant’s Brief at 11 (citing

Gomez v. United States, 490 U.S. 858, 875-76 (1989) (Gomez)). We agree.

The ministerial tasks of supervising a jury and receiving its verdict

on behalf of an Article III judge are among those additional duties

delegable under § 636(b)(3). See United States v. Johnson, 962 F.2d 1308,

1312 (8 Cir.) (citing United States v. Demarrias, 876 F.2d 674, 677 (8 th th

Cir. 1989) (Demarrias)), cert. denied, 506 U.S. 928 (1992); see also

United States v. Foster, 57 F.3d 727, 732 (9 Cir. 1995) (agreeing with

th

this court’s holding in Demarrias and noting that the magistrate judge

judge “did nothing more than accept and file the verdict”). By contrast,

in Gomez, the Supreme Court excluded from this category of judicial

functions acts such as voir dire because it involves making judicial

determinations. 490 U.S. at 874-75. Specifically, the Court held that

jury selection is not an additional duty, and further noted that, in

performing
The Court further held that, in a felony case, a defendant’s consent to having a 8

magistrate judge preside over jury selection may be effected by his or her failure to

object to the magistrate judge’s role. Gomez v. United States, 490 U.S. 850, 875

(1989); see also United States v. Foster, 57 F.3d 727 (9 Cir. 1995); United States v. th

Johnson, 962 F.2d 1308 (8 Cir. 1992) (holding that a magistrate judge has the

th

authority to accept a jury verdict, even in a felony case where the parties have not

consented to such authority). Moreover, although the Court later interpreted the

holding in Gomez as “narrow,” Peretz v. United States, 501 U.S. 923, 927 (1991), the

facts of the instant case clearly fall within its purview because there was never an

expression of consent other than silence. 

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such functions, “the court must scrutinize not only spoken words but also

gestures and attitudes of all participants to ensure the jury’s

impartiality.” Id. at 875; see also Peretz, 501 U.S. at 933 (holding that 8

voir dire is not an “additional duty” under § 636(b)(3), although a

district court may permit a magistrate judge to conduct voir dire in a

criminal trial in accordance with the defendant’s consent).

 

Similarly, in Demarrias, this court held that a district court judge

may allow a magistrate judge to supervise a deliberating jury and to accept

its verdict without depriving a defendant of due process or violating

Article III of the Constitution of the United States. 876 F.2d at 677.

This court observed that, although the magistrate judge communicated with

the jury, the district judge was in constant contact with the magistrate

judge. Id. The district judge gave the magistrate judge instructions to

telephone if the jury had any questions so that the district judge could

dictate the magistrate judge’s response. Id. When the jury asked a

question during deliberations, the district judge was called and dictated

a response which the magistrate judge signed. Id. This court upheld the

magistrate judge’s and district judge’s actions, noting that the district

judge “maintained full control of the proceedings by telephone.” Id. We

further stated that, insofar as the magistrate judge communicated with the

jury, it did so “simply as an intermediary.” Id.
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From these decisions we conclude that, absent clear and unambiguous

consent of the affected parties, a district judge may not delegate,

pursuant to § 636(b)(3), duties that require a final and independent

determination of fact or law by the magistrate judge. Those duties include

such adjudicatory functions as evaluating a juror for purposes of Rule

47(c) dismissal. Indeed, just like voir dire, the dismissal of a juror

pursuant to Rule 47(c) calls for scrutiny of “not only spoken words but

also gestures and attitudes . . . to ensure the jury’s impartiality” and

competence. Gomez, 490 U.S. at 875. However, where a magistrate judge

serves as a mere intermediary in the performance of adjudicatory functions

and is under constant and direct supervision of an Article III judge, such

functions are freely assignable as “additional duties.” See id. Thus, we

hold that the evaluation and subsequent dismissal of a juror are not

ministerial or “additional duties”; rather, those are traditional

adjudicatory functions that may only be performed by or under the constant

and direct supervision of an Article III judge, absent clear and

unambiguous consent to delegation.

In the instant case, the district judge instructed the magistrate

judge “not only to listen to Ms. Waschalk’s concerns and feelings about

this situation and to determine her willingness to continue on the jury,

but also to gauge her state of mind and emotional well-being.” Order at

3 (July 31, 1996). In following these instructions, the magistrate judge

necessarily did much more than act as a mere intermediary. The district

judge never spoke to the juror or dictated a response to her inquiry. The

magistrate judge even instructed the jury as to what effect, if any, to

give Waschalk’s dismissal without any additional guidance from the district

court noted in the record. In light of the foregoing, we hold that the

magistrate judge lacked the requisite authority to evaluate and then

dismiss Waschalk.

In addition, we hold that the manner in which Waschalk was dismissed

was reversible error. Despite Folk’s arguments to the contrary, Waschalk’s

note strongly suggests that she was the lone hold-out in favor of Harris.

The district court’s order indicates that the magistrate judge dismissed

Waschalk was not because of her vote,
After receiving notice from a juror that such juror had been communicated with 9

by an unknown person about the trial, the district judge ordered the Federal Bureau of

Investigation to investigate and make a report on the incident. Remmer v. United

States, 347 U.S. 227, 288 (1954).

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but rather because she was unable to serve competently as a juror due to

her emotional instability. Order at 3, 5, 7-8 (July 31, 1996). This

determination of her competency was derived not only from Waschalk’s note

but also from the magistrate judge’s ex parte discussions with Waschalk.

Id. at 3. However, even assuming that the magistrate judge was acting as

a mere intermediary under the constant and direct supervision of the

district judge, because the magistrate judge failed to make a record of the

ex parte proceedings, we are unable to determine the propriety of the

decision to dismiss Waschalk.

Rule 47(c) of the Federal Rules of Civil Procedure permits a court

to excuse for good cause a juror from service during trial or deliberation.

The Supreme Court has held that, in investigating allegations of jury

misconduct, trial courts “should not decide and take final action ex parte

on information . . . , but should determine the circumstances, the impact

thereof upon the juror, and whether or not it was prejudicial, in a hearing

with all interested parties permitted to participate.” Remmer v. United

States, 347 U.S. 227 (1954) (emphasis added). In Remmer, the Court vacated

a judgment of conviction against the defendant where the district judge

conducted an ex parte investigation of a juror regarding allegations of

jury tampering. Id. (citing the absence of the ex parte proceeding). The 9

Court stated: “We do not know from this record, nor does the petitioner

know what actually transpired, or whether the incidents that may have

occurred were harmful or harmless.” Id. at 229. 

Relying in part on Remmer, this court held that, “[w]hile the trial

judge generally should not conduct any part of the hearing ex parte, ex

parte communications have been upheld where the circumstances warrant and

fundamental fairness is not
Bellew was put under oath to verify the note and its contents. Joint Appendix, 10

Vol. III, at 702-03 (Transcript of Verdict of the Jury at 3-4).

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sacrificed.” United States v. Behler, 14 F. 3d 1264, 1268 (8 Cir.),

th

cert. denied, 513 U.S. 960 (1994). This court held that it was not plain

error to conduct a hearing outside of the parties’ presence for purposes

of investigating allegations of jury tampering where both sides knew about

the hearing in advance, declined to participate, and raised no objection.

Id. Moreover, the conversation with the parties was reported by the court

reporter. Id. at 1267. We held that, under these circumstances, the

district judge had “substantially complied with the Remmer requirements.”

Id. at 1268.

In the instant case, neither the district judge nor the magistrate

judge attempted to follow the Remmer requirements. The district judge

concluded that “no useful purpose would be served by a hearing on the

question of Ms. Waschalk’s dismissal” and that any interrogation would have

upset her fragile emotional state. Order at 7-8; see also Joint Appendix

at 706 (Transcript of Verdict of the Jury at 7 (“I want to explain so the

record is clear the reason that she wasn’t placed under oath and brought

into court [is] because she was so emotionally fragile and upset there

would have been no point in doing that.”)). We do not dispute the latter

finding; we merely hold that, absent exigent circumstances, such

proceedings must be conducted in the presence of the parties and a record

of the proceedings must be made for the benefit of the parties and the

reviewing court. Waschalk was interrogated at an ex parte hearing in

chambers of which neither party had notice until after it occurred. The

hearing was not conducted on the record nor were there any witnesses

present. In addition, Waschalk was never placed under oath to verify her

note to the court.10

Although the lack of consent and the failure to follow Remmer warrant

reversal without a showing of prejudice to Harris, we also note that the

existing record does not support Waschalk’s dismissal. The note suggests

that Waschalk was the lone hold-out in favor of Harris. A complete record

of an ex parte juror communication is especially
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important where it concerns the potentially prejudicial effects of

dismissing a lone hold-out juror. Moreover, we can have no way of knowing

what effect, if any, Waschalk’s dismissal might have had on the

deliberations of the remaining jurors because the remaining jurors were not

questioned regarding the dismissal. However, the rapidity with which the

jury returned its verdict following Waschalk’s dismissal tends to support

Harris’s theory that either Waschalk was the lone hold-out or her dismissal

sufficiently discouraged other jurors from not joining in the verdict. See

Fed. R. Civ. P. 47(c), advisory committee note (1991 amendment) (“It is not

grounds for the dismissal of a juror that the juror refuses to join with

fellow jurors in reaching a unanimous verdict.”); see also United States

v. Hernandez, 862 F.2d 17 (2d Cir. 1988) (“That a juror may not be removed

because he or she disagrees with the other jurors as to the merits of a

case requires no citation.”), cert. denied, 489 U.S. 1032 (1989).

Harris raises several other grounds for reversal which we have

examined closely and found are without merit. As to Harris’s challenge

to the district court’s exclusion of certain evidence, we have carefully

considered the record and the parties’ arguments and find that there was

not an abuse of discretion. Harris’s right to challenge on appeal the

district court’s instruction regarding the definition of seaman, on the

other hand, is waived for failure to object. See Fed. R. Civ. P. 51 (“No

party may assign as error the giving or the failure to give an instruction

unless that party objects thereto before the jury retires to consider its

verdict, stating distinctly the matter objected to and the grounds of the

objection.”) (emphasis added); see also Dupre v. Fru-Con Eng’g, Inc., 112

F.3d 329, 334 (8 Cir. 1997) (holding that indefinite objections to a jury th

instruction without stating on the record the specific grounds therefor

does not preserve issue for appeal).

Folk’s cross-appeal for reversal of the district court’s denial of

its motion for costs and Folk’s motion to amend the record to include the

Affidavit of Mary Ann Rawls are dismissed as moot.
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Accordingly, the judgment of the district court is reversed and

remanded for further proceedings consistent with this opinion.

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.