A cyclist filed a negligence action in federal court in State A against a driver following an accident. After a jury of 12 persons returned a verdict for the cyclist, the presiding judge on her own motion, polled the jurors individually. The judge's polling revealed that the jury was not unanimous in
deciding that the cyclist had exercised due care and was not guilty of contributory negligence. As a result, the judge ordered a new trial. The cyclist then filed a timely notice of appeal.

Which, if any, of the following arguments would win on appeal?
The court of appeals should dismiss the appeal for lack of jurisdiction. (Civil Procedure-Appealability and Review)