Stanley Ray Fletcher, Plaintiff-appellant, v. Mccreary Tire and Rubber Company, Defendant-appellee, 773 F.2d 666 (5th Cir. 1984)

Plaintiff Stanley Ray Fletcher contends that the trial court erred in requiring Fletcher to try this action before a jury composed of only eleven members. The presiding magistrate¹  denied Fletcher's motion for a new trial after the eleven-member jury returned an unanimous verdict for the defendant McCreary Tire and Rubber Company ("McCreary"). This Court holds that the trial court did not err in proceeding to trial before an eleven-member jury. The judgment of the trial court is affirmed.

Fletcher was injured on April 12, 1982, when a tire allegedly manufactured by McCreary exploded. For the damages allegedly resulting from the tire's explosion, Fletcher filed this diversity action against McCreary on April 29, 1983, in the United States District Court for the Southern District of Mississippi. This case was tried before a magistrate by consent.

For purposes of this appeal, the crucial facts relate to the selection and seating of the jury. During voir dire conducted on October 25, 1984, the parties agreed to twelve jurors. The parties also agreed to waive the selection of any alternate jurors. However, on November 6, 1984, the day before the trial commenced, the presiding magistrate excused one of the jurors for good cause leaving only eleven of the originally selected jurors. After learning that the magistrate had excused one juror, Fletcher moved for a mistrial or a continuance until the absent juror could return or be replaced. The magistrate denied Fletcher's motion stating that the practice in the Southern District of Mississippi was to either secure an agreement that the parties would abide by an unanimous verdict of the remaining jurors or to select an alternate juror.²  The magistrate added:

That's the purpose of asking whether or not you will waive an alternate juror. It is implicit in the waiving of an alternate juror that you do agree to abide by the unanimous verdict of the remaining jurors; otherwise, we would select an alternate juror.

Record Vol. III at 5-6. Alternatively, the magistrate offered to bring in a new panel on the following day so a twelve-member jury could be selected, but Fletcher objected because "the notice was too short." Record Vol. III at 6.

The case was tried with the eleven remaining jurors returning an unanimous verdict for McCreary on November 8, 1984. Fletcher filed a motion for a new trial on November 16, 1984, alleging that the magistrate violated the federal constitution, laws, and rules in not granting to Fletcher a mistrial or a continuance so that this case could be tried by a jury composed of twelve persons; the magistrate overruled such motion. Timely notice of appeal brings this case to this Court. On appeal, Fletcher argues that the magistrate erred in failing to provide a twelve-member jury.

The right to a jury trial in federal diversity cases is determined by federal law. Simler v. Conner, 372 U.S. 221, 83 S. Ct. 609, 9 L. Ed. 2d 691 (1963). Moreover, the number of jurors, as distinct from the right to a jury, is not an integral part of the state-created rights at issue in a diversity case, and state law does not control. Wilson v. Nooter Corp., 475 F.2d 497, 503-04 (1st Cir.), cert. denied, 414 U.S. 865, 94 S. Ct. 116, 38 L. Ed. 2d 85 (1973).

Under federal law, neither the Seventh Amendment nor the Federal Rules of Civil Procedure mandate twelve-member juries in civil cases. In Colgrove v. Battin, 413 U.S. 149, 93 S. Ct. 2448, 37 L. Ed. 2d 522 (1973), the Supreme Court sustained a local rule of the Montana district courts providing that a jury for the trial of civil cases should consist of six persons. The Supreme Court concluded that "it cannot be said that 12 members is a substantive aspect of the right of trial by jury" as guaranteed by the Seventh Amendment. Id. at 158, 93 S. Ct. at 2453. Similarly, the Federal Rules of Civil Procedure do not mandate twelve-member juries. Rule 48 provides that:

The parties may stipulate that the jury shall consist of any number less than twelve or that a verdict or a finding of a stated majority of the jurors shall be taken as the verdict or finding of the jury.

Fletcher argues that Rule 48 presupposes that in the absence of a stipulation a civil jury will consist of twelve members. However, as this Court has previously stated, "Rule 48 does not, on its face, guarantee a twelve-member jury, and we cannot imply such a guarantee in the rule."³  Cooley v. Strickland Transportation Co., 459 F.2d 779, 784 (5th Cir.), cert. denied, 413 U.S. 923, 93 S. Ct. 3069, 37 L. Ed. 2d 1045 (1972).

The only remaining federal source for Fletcher's asserted entitlement to a twelve-member jury is the local rules and practices of the United States District Court for the Southern District of Mississippi. Fed. R. Civ. P. 83 permits district courts to regulate their practice in any manner not inconsistent with the Federal Rules in all situations not regulated by the Federal Rules. The Southern District of Mississippi has informally followed the practice of impanelling twelve-member juries in civil cases. However, the Southern District of Mississippi also informally limits that practice in cases where the parties by agreement waive selection of an alternate juror. In such cases, the parties consent to abide by the unanimous verdict of the remaining jurors. Thus, the same informal practice which entitled Fletcher to twelve jurors also permitted trial by eleven jurors in the instant case because Fletcher waived selection of an alternate juror.

Moreover, Fletcher waived any right to trial by twelve jurors by refusing the trial court's offer to select a new panel of twelve jurors. Since the right to a jury trial itself can be waived in civil cases, see, e.g., Country (Social) Club of Savannah, Inc. v. Sutherland, 411 F.2d 599, 600 (5th Cir. 1969), the right to the full number of jurors provided by local rules or practice can also be waived. That selection on the day following the trial court's offer would have been inconvenient to Fletcher's counsel did not render the waiver involuntary. Given the choice between proceeding with eleven jurors or selecting a new panel of twelve jurors on the following day, Fletcher knowingly elected to proceed with eleven jurors. Fletcher cannot now claim that the magistrate erred by proceeding to trial with eleven jurors.⁴ 

The trial court did not err in trying this action before an eleven-member jury. The judgment of the trial court is

AFFIRMED.