The Doing of a Pointless Thing: The Requirement of Filing Post-Verdict Motions for Judgment as a Matter of Law
The United States Supreme Court recently granted certiorari in Unitherm Food Systems, Inc. v. Smith-Eckrich, Inc. d/b/a Conagra Refrigerated Foods, a patent case decided by the Federal Circuit in 2004. The issue before the Supreme Court will be whether failure to renew a motion for judgment as a matter of law (JMOL) following the entry of judgment precludes an appellate court from reviewing the sufficiency of the evidence supporting the jury’s verdict.
In Unitherm, the plaintiff sought a declaration that Conagra’s patent was invalid and alleged that Conagra was liable for attempted monopolization and tortious interference with prospective economic advantages. The district court granted summary judgment of invalidity and the jury returned a verdict in favor of Unitherm on its monopolization and tortious interference claims. Conagra appealed to the Federal Circuit, but failed to file a post-verdict motion for JMOL pursuant to Rule 50(b). This failure, according to Unitherm, prevented Conagra from challenging the sufficiency of the evidence supporting the jury’s antitrust verdict on appeal.
The Federal Circuit rejected Unitherm’s argument, holding that under 10th Circuit law the failure to file a post-verdict JMOL does not bar a party from appealing the sufficiency of the evidence, provided the party filed a motion for JMOL at the close of evidence. Unitherm Food Systems, Inc. v. Smith-Eckrich, Inc., 375 F.3d 1341, 1365 n.7 (Fed. Cir. 2004). Because Conagra filed such a motion at the close of the evidence, the Federal Circuit reasoned, it was not barred from challenging the sufficiency of the evidence on appeal. Id. Under this standard, the Federal Circuit vacated the judgment and remanded for a new trial on the monopolization issue.
The Tenth Circuit rule applied by the Federal Circuit in Unitherm is clearly the minority view. Eight Circuits have explicitly held that failure to file a post-verdict motion for JMOL or a motion for a new trial waives a sufficiency of the evidence challenge on appeal. See Velaquez v. Figueroa-Gomez, 996 F.2d 425 (1st Cir. 1993); Varda, Inc. v. Insurance Co. of North America, 45 F.3d 634 (2d Cir. 1995); Woods v. Nat’l Life & Accident Ins. Co., 347 F.2d 760 (3d Cir. 1965); Adames v. Perez, 331 F.3d 508 (5th Cir. 2003); Dixon v. Montgomery Ward, 783 F.2d 55 (6th Cir. 1986); Cross v. Cleaver, 142 F.3d 1059 (8th Cir. 1998); Patel v. Penman, 103 F.3d 868 (9th Cir. 1996); Biodex Corp. v. Loredan Biomedical, Inc., 946 F.2d 850 (Fed. Cir. 1991). Only the 4th and 10th Circuits allow a sufficiency of the evidence challenge on appeal if no post-verdict JMOL was filed. See Benner v. Naitonwide Mut. Ins. Co., 93 F.3d 1228, 1234 (4th Cir. 1996); Cummings v. General Motors Corp., 365 F.3d 944, 950 (10th Cir. 2004). The 7th and 11th Circuits have not directly addressed the issue.
In Biodex, supra, the Federal Circuit offered several justifications for requiring a post-verdict motion for JMOL. First, in most circumstances, the district court will produce a thorough written or oral opinion, providing the appellate court with a reasoned opinion stating the grounds for denying the motion. Biodex, 946 F.2d at 860. Second, the district court can review all of the evidence relied upon by the jury, including many considerations not adequately found in a transcript:
The district court has the same opportunity that jurors have for seeing the witnesses and for noting all those matters in a trial not capable of record. The trial judge sits as the 13th juror in evaluating the weight to be given to all of the evidence, or in determining that a particular witness’s testimony is so inherently incredible that a reasonable mind could not accept it. Beyond credibility, the weight given to particular testimony by the jury can be affected by the demeanor and responsiveness of a witness during direct testimony and upon cross-examination.
Id.
A third justification for requiring a post-verdict JMOL is that such a requirement “promotes fair and equitable jurisprudence” by affording the trial judge the opportunity to correct any errors by the jury and by putting the opposing party on notice of the issues that may be challenged on appeal. Id. Lastly, according to the Federal Circuit, requiring a post-verdict motion for JMOL is not burdensome. Id.
The persuasiveness of these justifications, however, is suspect in light of the language of Rule 50(b) and applicable precedent of the Supreme Court. Contrary to the Federal Circuit’s discussion of the trial court’s broad role in ruling on a motion for JMOL, the Supreme Court has made clear the trial court’s role is actually very limited:
[I]n entertaining a motion for judgment as a matter of law, the court should review all of the evidence in the record. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge
Reeves v. Sanderson Plumbing Products, 50 U.S. 133, 150 (2000). Since the Reeves decision, every Circuit has stated that judges may not weigh the evidence or make credibility determinations when ruling on motions for JMOL. See Tapalian v. Tusino, 377 F.3d 1 (1st Cir. 2004); Fabri v. United Techs. Int’l Inc., 387 F.3d 109 (2nd Cir. 2005); Ambrose v. Township of Robinson, 303 F.3d 488 (3rd Cir. 2002); Ferguson v. City of Charleston, 308 F.3d 380 (4th Cir. 2002); Brown v. Parker Drilling Offshore Corp., 396 F.3d 619 (5th Cir. 2005); McCombs v. Meijer, Inc., 395 F.3d 346 (6th Cir. 2005); E.E.O.C. v. Bd. Of Regents of Univ. of Wisconsin, 288 F.3d 296 (7th Cir. 2002); Anderson v. Independent School District, 357 F.3d 806, 809 (8th Cir. 2004); Miller v. Eby Realty Group, 396 F.3d 1105 (10th Cir. 2005); Edic v. Century Prods. Co., 346 F.3d 1276 (11th Cir. 2004). The Federal Circuit also follows this rule, as it applies the law of the regional circuits when ruling on whether a motion for JMOL was properly granted or denied. BBA Nonwovens Simpsonville Inc. v. Superior Nonwovens, LLC, 303 F.3d 1332 (Fed. Cir. 2002).
Because the trial judge cannot weigh the evidence or make credibility determinations, prevailing on a post-verdict motion for JMOL seems unlikely, particularly if the judge denied the motion at the close of evidence. When reviewing a JMOL made at the close of evidence, the trial judge must determine whether “there is no legally sufficient evidentiary basis for a reasonable jury to find for [the non-movant] on that issue.” Fed. R. Civ. P. 50(a). Similarly, when considering a post verdict motion for judgment as a matter of law, the district court must: (1) consider the evidence in the light most favorable to the prevailing party; (2) assume that all conflicts in the evidence were resolved in favor of the prevailing party; (3) assume as proved all facts that the prevailing party's evidence tended to prove; (4) give the prevailing party the benefit of all reasonable inferences that may reasonably be drawn from the facts proved; and (5) disregard the evidence favoring the moving party. See, e.g. Stryker Corp. v. Davol, Inc., 234 F.3d 1252, 1257-58 (Fed. Cir. 2000); Hopper v. Hallmark Cards, Inc., 87 F.3d 983, 987 (8th Cir. 1996). In application, both of these standards are identical. See, e.g., Raspente v. National R.R. Passenger Corp., 111 F.3d 239, 241 n.3 (2nd Cir. 1997); The Jeanery Inc. v. James Jeans Inc., 849 F.2d 1148, 1151 (9th Cir. 1151); Smith v. Holtz, 30 F. Supp. 2d 468, 471 (E.D. Pa. 1998); In re: Lone Star Indus. Inc., 882 F. Supp. 481, 495 (D. Md. 1995).
Under this rigorous standard, the approach of the 4th and 10th Circuits is the better one. If the plaintiff has presented sufficient evidence to survive a motion for JMOL made at the close of evidence, a post verdict motion for JMOL is unlikely to be granted. To succeed on the latter, the movant must, in effect, show that the court’s denial of its motion for JMOL at the close of the evidence was in error as the same standard applies to both motions. This is a heavy burden that, needless to say, is not easily met.
The Federal Circuit’s concern over providing the non-moving party with notice of issues that may be appealed is also unpersuasive. As numerous courts have held, a litigant may only raise issues in a post-verdict JMOL that were raised in a previously filed motion for JMOL made at the close of evidence. See, e.g., SHF Inc. v. Millard Refrigerated Services, Inc., 339 F.3d 738, 745 n.7 (8th Cir. 2003); Duro-Last, Inc. v. Custom Seal Inc., 321 F.3d 1098, 1105 (Fed. Cir. 2003); Fed. R. Civ. P. 50(b). Accordingly, the non-movant is provided notice of alleged shortcomings in its case well before a post-verdict JMOL must be filed.
The approach of the 4th and 10th Circuits is also more congruent with the language of Rule 50(b), which provides in pertinent part:
If, for any reason, the court does not grant a motion for judgment as a matter of law made at the close of all the evidence, the court is considered to have submitted the action to the jury subject to the court’s later deciding the legal questions raised by the motion. The movant may renew its request for judgment as a matter of law by filing a motion no later than 10 days after entry of judgment — and may alternatively request a new trial or join a motion for a new trial under Rule 59.
(Emphasis added). Logically, there are only two situations in which the court would not have “granted the motion”: (1) the trial judge deferred ruling on the motion until after the jury returned its verdict; or (2) the trial judge denied the motion. Therefore, in both of these situations, the emphasized language of the Rule makes clear that the court must reconsider the motion following the jury’s verdict.
If the district court adheres to this language in the Rule, no post-verdict motion for JMOL should be required. Moreover, the Federal Circuit has explicitly stated that a post-verdict motion for JMOL is not required where the district court rules on a motion for JMOL at the close of all the evidence after the jury returns its verdict:
The district court remains free to defer action upon a motion for directed verdict until after the jury’s deliberations … and … under Rule 50(b), make a later determination of the legal questions raised by the motion without first receiving a motion for JNOV. In such circumstances, the ruling by the district court on the deferred motion, whether by grant or denial, will have the legal consequence on appellate review of a similar ruling by the district court on a motion for JNOV.
Biodex, 946 F.2d 850. Requiring the district court to provide a thorough opinion supporting its “deferred ruling” would satisfy the Federal Circuit’s remaining justification for requiring a post-verdict motion for JMOL; namely, providing an adequate, objective review of the evidence supporting the jury’s verdict. With each of the Federal Circuit’s justifications overcome, the post-verdict motion for JMOL becomes superfluous.
Conclusion
The Federal Circuit’s justifications for requiring a party to file a post-verdict JMOL are, ultimately, unpersuasive. If a party presents sufficient evidence to survive a motion for JMOL made at the close of evidence, success on a post-verdict motion for JMOL is remote at best. The standard applied to the two motions is identical, effectively requiring the moving party to convince the district court that its denial of the previously filed motion was in error. Such a high burden is unlikely to be met.
While the movant remains free to renew its motion for JMOL, and alternatively request a new trial, it should not be punished for choosing not to incur the time and expense of filing a motion that almost certainly will not be granted. This is particularly true where, under Federal Circuit precedent, a post-verdict motion for JMOL is unnecessary if the district court complies with the language of Rule 50(b) and rules on a motion for JMOL made at the close of evidence after the jury returns its verdict.