# 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 entere d 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

### -2-

super vise jury deliberations and to dismiss a juror for cause; (2) th e magistrate judge’s ex parte communications with the juror were proper; and (3) the ju ry instruction that defined the term “seaman” was a correc t statement of law. Harris also challenges several evidentiary rulings of the district court.

On cross-appeal, Folk contests the district court’s denial of it s motion fo r costs, pursuant to Rule 68 of the Federal Rules of Civi l Pro cedure. In addition, Folk moves this court to amend the record t o include the affidavit of the deputy courtroom cl erk of the district court, Mary Ann Rawls.

For the r easons discussed below, we reverse the judgment of th e district court, remand the case for further proceedings, and dismiss Folk’ s motion and cross-appeal as moot.

Jurisdiction

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

. § 68 8 et seq. , and 28 U.S.C. § 1332. Jurisdiction on appeal is prope r 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 fact s supp orting the underlying claims is required. Harris was injured o n 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 purs uant to a contract between Fol k and the United States Corps of Engineers. Folk ran the dredgin g operation. Harris was an employee of Folk.

## The suit was originally filed by Harris and his wife, Luvenia Harris, wh o 1 

## asserte da claim against Folk for loss of society and consortium. The district court dismi ssed her claim by order dated August 15, 1995. In addition, the district court dismiss ed(James Earl) Harris’s claim for punitive damages by order of February 1 , 19 96, and reaffirmed the dismissal by order of May 3, 1996. Harris asserts that hi s failure to c hallenge these rulings in his briefs on appeal “should not be deemed a n accepta nce of the Court’s rulings on these issues.” Appellant’s Brief at 5. Harri s acknowledg es that these issues would be rendered moot if this court affirms th e 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 W L 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, inclu ding 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.
-3- On Decembe r 15, 1993, Harris filed a claim to recover for th e injuries that he sustained in the accident. Harris’s causes of actio n 1

wer e based on the Jones Act, 46 U.S.C. § 688 et seq. , and the genera l maritime doctrine of unseaworthiness. Each clai m required Harris to prove tha t he was a “seaman” at the time of the accident. A jury was charge d 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 wa s instructed to return on Monday, May 13, 1996, to continue deliberations. Howe ver, in reliance on the parties’ estimations that the case woul d concl ude 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 thi s conflict, the deputy courtroom clerk, Mary Ann Rawls, advised counsel for the parties that a magistrate judge would presid e over jury deliberations. Neither party objected to this arrangement. However, a formal consent for m 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 thi s 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 mad e up! She put her hand o n 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 s he could tell me what I wanted to know. I said that I was not supposed to ask anot her juror. After Jim said that he would vot e 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 ma

de up and I will not change it. I said “I will ask the judge for
a mistr ial”. One juror said “You will never get a mistrial. You will b e 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

-4- On Monday , May 13, 1996, eight of the nine jurors reported to th e jury room. Juror Loraine Waschalk (“Waschalk”) refused. Instead, she wen t to Deputy United States Marshal Max Bellew (“Bellew”) and told him that sh e “was sc ared of the other jurors” and that “she was unsure of her safet y withi n the jury room.” Order at 2 (July 31, 1996). Waschalk also gav e Bellew a note to deliver to the magistrate judge which stated, among other thing s, 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).
-5- Deputy Be llew was put under oath and his statements regarding these events a re part of the record. See Joint Appendix, Vol. III at 702-0 3 (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 consol e her, but she had the idea [he] was trying to lock her up, [and] . . . bega n 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 sh e eventually calmed down some and told Bellew that she had gotten very littl e sleep over the weeken d, was very worried for her safety, and did not want to be with the jury any longer. Id.

Af ter speaking to a member of the district court’s staff, Belle w faxed Waschalk’s note to the district judge. The district judge reviewed the no te, obtained Bellew’s oral statement, and then instructed th e mag istrate judge to bring Waschalk into chambers and discuss the matte r with Waschalk. The district judge further instr ucted the magistrate judge “not only to listen to Ms. Waschalk’s concerns and feelings about th e situation and to determine her willingness to continue on the jury, bu t 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 fro m the jury i f the magistrate judge determined that she was unwilling t o contin ue her service and too emotionally unstable to serve competently

. Id.

The magistrate judge met with Waschalk in chambers without th e knowledge of either party’s counsel. This conversation was not recorded
as part of the record nor were there any reported witnesses. Based on thi s
conv ersation and Waschalk’s note, the magistrate judge determined tha t Waschalk was “unreasonably upset” and “very

## Fed. R. Civ. P. 47(c). 5


## Fed. R. Civ. P. 58. 6



### -6- emotionally unstable. ” Order at 3 (July 31, 1996). The magistrate judge then dismissed Waschalk for cause pursuant to Rule 47(c) of the Federa l Rules of Civil Procedure. 5
The magis trate judge then convened the parties and informed them of what had transpired. Harris objected to Waschalk’s dismissal and moved fo r
a mistr ial. This motion was denied by the magistrate judge. The eigh t remaini ng jurors were called back into the courtroom and advised tha t Waschalk had been exc used from further participation in the deliberations and that “the reason behind [Waschalk’s dismissal] is not anything tha t [they] need[ed] to concern [themselves] with.” Joint Appendix, Vol. III at 708 (Transcript of Verdict of the Jury, May 13, 1996, at 9). Th e magistrate judge then directed the jury to return to the jury room an d
resume deliberating in a manner consistent with the district judge’ s earlier instructions.

After only seven minutes of deliberation, the jury reached a unanim ous verdict in favor of Folk. Harris renewed his motion for a mistrial, which the magistrate judge again denied. The district judg e later entered a judgment consistent with the jur y verdict. Harris in turn
mov ed the district court for a new trial, for relief from judgment o r order, for a post-trial evidentiary hearing, and to complete the record. Folk filed a motion f or costs pursuant to Rule 58 of the Federal Rules of Civil Procedure. By order dated Ju ly 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 s upervise the jury deliberations and, more important, to dismiss a juror because the

## 28 U.S.C. § 636(c)(1), provides in part that: 7


## Up onthe 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.

-7- 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 di d 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 p reside
over various aspects of civil litigation in two situations. First, th e parties to a civil matter may consent to the magistrate judge performing any and all proceedings, including those adjudic atory duties traditionally reserved f or 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 2 8

th U.S.C. § 636(c) and further holding that, “insof ar as Article III protects individual litigants, those protections can be w aived”), cert. denied , 469 U.S. 11 58 (1985). The Act also has a catchall provision which allows a judge to delegate to a magistrate judge “additional duties” that are not inconsiste nt with the Constitution and laws of the United States. 2 8 U.S.C. § 636(b)(3). The facts of the instant ca se implicate both of these provisions.

Folk ar gues that Harris consented to the magistrate judge’ s
su pervising the jury deliberations, including the magistrate judge’ s authorityto 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 tha t Harris wai ved the consent requirement in § 636(c). In addition, Fol k conten ds that the district judge properly delegated authority to th e magi strate judge as an additional duty, pursuant to § 636(b)(3). T o resolve these issues, this court must determine whether the requirements of § 636(c), which expressly authorize the magis trate judge’s authority in question, were met, and, if not, whether the functions performed by th e magistr ate judge in this case qualify as “additional duties” that ar e delegable pursuant to § 636(b)(3).

We turn first to Folk’s waiver argument which caselaw in this c ircuit makes clea r is without merit. Indeed, we have consistently held tha t “‘[s]ection 636(c) requires a clear and unambiguous statement in the recor d of the affected parties’ consent to the magistra te 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 93 1, 933 (8 Cir. 1994) th ( J.C. Henry ) (rejecti ng waiver argument and remanding for new trial where part ies neither objected nor expressly consented to magistrate judge’ s authorityin conducting jury trial)); see also Gleason v. Secretary o f 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 th e record of the affected parties’ consent to the magistrate judg e judg e’s jurisdiction”)). This consent requirement is the basis of § 636(c)’s constitutionality. See, e.g. , Adams v. Heckler , 794 F.2d 303, 30 7 (7 Cir. 1986) (“[V]alid consent is the linchpin o f the constitutionality th of 28 U.S.C. § 636(c).” 

### ). Without clear and unambiguous consent , litig ants cannot be deemed to have forfeited their right to proceed i n front of an Article III judge. See J.C. Henry , 33 F.3d at 933 (holdin g that ma gistrate judge lacked authority to enter final judgment wher e record contained no c lear statement of consent by party which had not yet entered appearance inaction). 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 approac h th “does violence” to Congress’s consent requirement in section 636(c)).
Folk relies, among other cases, on P eretz v. United States , 501 U.S. 923, 9 32 (1991), in which the Supreme Court held that “[t]here is n o Article III problem when a district court judge permits a magistrate judge to conduct voir dire in accordance with the defe ndant’s consent.” Id. We find that Peretz is the most persuasive case in favor of Folk’s waive r argument. However, this court has distinguished Peretz from cases like th e insta nt one where there was no discernible statement of consent by th e litiga nts. See Reiter , 104 F.3d at 1073 (noting that in Peretz “th e partie s expressly consented to the magistrate judge’s conducting of th e voir dire, the action about which they later complained” on appeal)

. Ind eed, 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 , 50 1 U.S. at 932 (emphasis added). Thus, there is little support for Folk’ s position in the cases on which it relies.

The r ecord in the instant case reveals and indeed, Folk concedes , that nei ther party gave express consent to the magistrate judge t o supervise the jury, evaluate a juror’s competency or, more important, to dis miss a juror. Instead, the parties merely failed to object to th e magistrate judge’s au thority after being informed that a magistrate judge would oversee jury deliberations. Thus, Harris’s silence, if deeme d consent, i s neither a clear nor unambiguous statement of consent. W e therefor e conclude that there was no valid consent under § 636(c)

. Moreover, while parties are encouraged to challenge as early as possible the deleg ation of authority to a magistrate judge, failure to do s o immediately does not constitute waiver of the ri ght to appeal. See Fowler

v. Jones , 899 F.2d 1088, 1092-93 (11 Cir. 1990) (rejecting waive r th argument and reversing and remanding for new tri al where parties failed to contest magistrate judge’s authority until after trial)



### . Accordingly, we hold that Harris did not

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con sent to the magistrate judge’s jurisdiction nor did Harris waive hi s right to challenge that authority on appeal.

Where no consent is given under § 636(c), a magistrate judge i s confined to his or her limited authority under t he 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 § 63 6(b)(3). To be sure, “[a] purported section 636(b) referral may not act as a section 636(c) referral and bypass the consen t requirement of that section.” Reiter , 104 F.3d at 1073-74 (c iting In re Wickline , 796 F.2d 1055, 1058 (8 Cir. 1986))

. th Therefore, the authority conferred upon the magistrate judge in the instan t
case m ust be independently delegable to facilitate the performance o f “additional duties.” See 28 U.S.C. § 636(b)(3).
Harris maintains that § 636(b)(3) ca nnot be the proper basis for the magistr ate 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 functio n, it follows, a fortiori , that he is also prohibited from communicating with a juror regarding her competency to proceed with deliberations.” Appel lant’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 v erdict
on behalf of an Article III judge are among those additional dutie s 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 als o Unit ed States v. Foster , 57 F.3d 727, 732 (9 Cir. 1995) (agreeing wit h th this court’s holding in Demarrias and noting that the magistrate judg e judge “did nothing mo re than accept and file the verdict”). By contrast, in Gomez , the Supreme Court excluded from this category of judicia l func tions acts such as voir dire because it involves making judicia l determinations. 490 U.S. at 874-75. Specifically, the Court held that jury selection is not an additional duty, and further noted that, i n 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 t o ob jectto the magistrate judge’s role. Gomez v. United States , 490 U.S. 850, 87 5 (1989); s ee also United States v. Foster , 57 F.3d 727 (9 Cir. 1995); United States v. th 

## John son , 962 F.2d 1308 (8 Cir. 1992) (holding that a magistrate judge has th e th 

## authori ty to accept a jury verdict, even in a felony case where the parties have no t con sentedto such authority). Moreover, although the Court later interpreted th e holding in Gomezas “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 a n expression of consent other than silence

. -11- such functions, “the court must scrutinize not only spoken words but also gestur es 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 distric t 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 accep t its ver dict without depriving a defendant of due process or violatin g Article III of the Constitution of the United States. 876 F.2d at 677

. This court observed t hat, although the magistrate judge communicated with the jury, the district judge was in constant contact with the magistrate judge. Id. The dist rict judge gave the magistrate judge instructions to telephone if the jury had any questions so that the district judge could dictat e the magistrate judge’s response. Id. When the jury asked a question during delib erations, the district judge was called and dictated a response which the magistrate judge signed. Id. This court upheld the magistrate judge’s an d district judge’s actions, noting that the district judge “maintained ful l control of the proceedings by telephone.” Id . We further stated that, insofar as the magistrate j udge communicated with the jury, it did so “simply as an intermediary.” Id.

### -12- From thes e decisions we conclude that, absent clear and unambiguous consent of the affected parties, a district judge may not delegate , purs uant to § 636(b)(3), duties that require a final and independen t determination of fact or law by the magistrate judge. Those duties includ e such adjudicatory functions as evaluating a juror for purposes of Rul e 47(c) dis missal. Indeed, just like voir dire, the dismissal of a juro r pursuant to Rule 47(c) calls for scrutiny of “not only spoken words bu t also gestures and attitudes . . . to ensure the jury’s impartiality” and competenc e. Gomez , 490 U.S. at 875. However, where a magistrate judg e 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 d uties.” See id. Thus, we hold that the evaluation and subsequent dismissal of a juror are no t minist erial or “additional duties”; rather, those are traditiona l adjudicatory functions that may only be performe d by or under the constant
an d direct supervision of an Article III judge, absent clear an d unambiguous consent to delegation



### .

In the instant case, the district judge instructed the magistrat e judge “not only to listen to Ms. Waschalk’s concerns and feelings abou t 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). I n following these instructions, the magistrate judge necessarilydid much more than act as a mere intermediary. The district judge never spoke to the juror or dictated a res ponse to her inquiry. The magistrat e judge even instructed the jury as to what effect, if any, t o give Waschalk’s dismissal without any additional guidance from the distric t court noted in the record. In light of the foregoing, we hold that th e magist rate judge lacked the requisite authority to evaluate and the n 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 suggest s 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 s uch juror had been communicated with 9 

## by an unknown person about t he trial, the district judge ordered the Federal Bureau of Inve stigationto investigate and make a report on the incident. Remmer v. Unite d States , 347 U.S. 227, 288 (1954).
-13- but rather because she was unable to serve competently as a juror due to her emoti onal instability. Order at 3, 5, 7-8 (July 31, 1996). Thi s 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, e ven assuming that the magistrate judge was acting as
a me re intermediary under the constant and direct supervision of th e district judge, because the magistrate judge failed to make a record of th e
exparte p roceedings, we are unable to determine the propriety of th e decision to dismiss Waschalk.

Rule 47 (c) of the Federal Rules of Civil Procedure permits a cour t to excuse for good cause a juror from service during trial or deliberation

. The Sup reme Court has held that, in investigating allegations of jur y 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 vacate d
a j udgment of conviction against the defendant where the district judg e
con ducted an ex parte investigation of a juror regarding allegations o f jury tampering. Id. (citing the absence of the ex parte proce eding). The 9 Court sta ted: “We do not know from this record, nor does the petitione r know wh at actually transpired, or whether the incidents that may hav e occurred were harmful or harmless.” Id. at 229.
Relying i n part on Remmer , this court held that, “[w]hile the trial judge gen erally should not conduct any part of the hearing ex parte , e x 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).

-14- 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 advanc e, declined to participate, and raised no objection. Id. Moreover, the conversation with the parties was reported by the court rep orter. Id. at 1267. We held that, under these circumstances, th e district judge had “s ubstantially complied with the Remmer requirements.” Id. at 1268.

In the i nstant case, neither the district judge nor the magistrat e judge attempted to follow the Remmer requirements. The district judg e
con cluded that “no useful purpose would be served by a hearing on th e question of Ms. Waschalk’s dismissal” and that any interrogation would hav e upset her fragile emo tional 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 ther e would have been no po int in doing that.”)). We do not dispute the latter findin g; we merely hold that, absent exigent circumstances, suc h proceedings must be c onducted in the presence of the parties and a record of the p roceedings must be made for the benefit of the parties and th e reviewing court. Waschalk was interrogated at an ex parte hearing i n chambers of which neither party had notice until after it occurred. The hear ing was not conducted on the record nor were there any witnesse s 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 w arrant 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

### -15-

important where it concerns the potentially prejudicial effects o f dismissing a lone hold-out juror. Moreover, we can have no way of knowing what effe ct, if any, Waschalk’s dismissal might have had on th e deliberations of the remaining jurors because the remaining jurors were no t questioned regarding the dismissal. However, the rapidity with which the jury returned its ver dict following Waschalk’s dismissal tends to support Harris’s theory that either Waschalk was the lone hold-out or her dismissa l sufficiently discouraged other jurors from not joining in the verdict. Se e Fed. R. Civ. P. 47(c), advisory committee note (1991 amendment) (“It is no t 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 becau se 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 hav e 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 th e distri ct court’s instruction regarding the definition of seaman, on th e other hand, is waivedfor failure to object. See Fed. R. Civ. P. 51 (“No party may assign as error the giving or the fail ure to give an instruction unless that party obj ects thereto before the jury retires to consider its verdict, stating dist inctly the matter objected to and the grounds of the objection .”) (emphasi s added); see also Dupre v. Fru-Con Eng’g, Inc. , 112 F.3d 329, 334 (8 Cir. 1997) (holding that indefini te objections to a jury th instru ction without stating on the record the specific grounds therefo r does not preserve issue for appeal).

Folk’s cross-appeal for reversal of the district court’s denial o f its motion for costs and Folk’s motion to amend the record to include the Affidavit of Mary Ann Rawls are dismissed as moot.

### -16- Accordingly, the judgment of the district court is reversed an d remanded for further proceedings consistent with this opinion.

A true copy.

Attest:

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