Party's Right to Jury Poll Waived: First Circuit | Practical Law

Party's Right to Jury Poll Waived: First Circuit | Practical Law

In a case of first impression for the court, the US Court of Appeals for the First Circuit in Ira Green, Inc. v. Military Sales & Service Co. held that a failure to poll the jury under Federal Rules of Civil Procedure (FRCP) 48(c) was not reversible error where the requesting party did not act reasonably to preserve its rights.

Party's Right to Jury Poll Waived: First Circuit

Practical Law Legal Update 6-593-7166 (Approx. 3 pages)

Party's Right to Jury Poll Waived: First Circuit

by Practical Law Litigation
Published on 23 Dec 2014 • USA (National/Federal)
In a case of first impression for the court, the US Court of Appeals for the First Circuit in Ira Green, Inc. v. Military Sales & Service Co. held that a failure to poll the jury under Federal Rules of Civil Procedure (FRCP) 48(c) was not reversible error where the requesting party did not act reasonably to preserve its rights.
On December 19, 2014, in a case of first impression for the court, the US Court of Appeals for the First Circuit in Ira Green, Inc. v. Military Sales & Service Co. held that a failure to poll the jury under FRCP 48(c) was not reversible error where the requesting party did not act reasonably to preserve its rights (No. 14-1178, (Dec. 19, 2014)).
In this commercial dispute between two business rivals, the plaintiff, Ira Green, Inc. (Green) brought a lawsuit against the defendant, Military Sales & Service Co. (MilSal) in the US District Court for the District of Rhode Island for tortious interference and defamation.
At trial, the court submitted the case to the jurors with instructions to complete a verdict form. When the jury returned its verdict, the court asked the foreperson to report the jury's answers. When the court next inquired whether any party wished to poll the jurors individually, one of Green's attorney answered affirmatively and at the same time, pointed out that one of the jury's answers was not reported. After the foreman announced the jury's missing answer, the court discharged the jury. Green's attorneys did not remind the judge of the earlier request for a jury poll.
After trial, the district court entered final judgment for MilSal on tortious interference and defamation and for Green on the counterclaims. Green moved for a new trial under FRCP 59(a). After the district court denied Green's new trial motion, Green appealed. Green argued, among other things, that the failure to poll the jury constituted per se reversible error. The district court concluded that the failure to poll the jury was harmless.
The First Circuit affirmed. The court first recognized that FRCP 48(c) was amended in 2009 to make a jury poll mandatory after a timely request. However, the court held that Green's request for a jury poll was waived and therefore not reviewable on appeal because:
  • Green's counsel had ample opportunity to renew its jury poll request once it became clear that the district court had forgotten the earlier request. For example, Green's attorneys could have reminded the court when the court proposed to discharge the jury or when the jury was leaving the courtroom.
  • Green's counsel had a final opportunity to raise the jury poll matter. The district court had asked counsel "if there was anything left to say" after the jury left the courtroom.
  • Even if the jury poll request was merely forfeited (and not waived), the error did not affect a party's substantial rights. The court did not find any showing of lack of unanimity or assent among the jurors.
Practitioners should be aware that they must act reasonably to preserve the right to a jury poll to avoid waiver on appeal.