Commercial Litigation and Arbitration

Plain Error Doctrine — Applicability to Pretrial Rulings

The plain error doctrine applies to rulings at trial. It may be invoked on appeal with respect to (1) evidentiary rulings under Federal Rule of Evidence 103(d) (‛ Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court“), and (2) jury instructions under Federal Rule of Civil Procedure 51(d)(2) (‛A court may consider a plain error in the instructions affecting substantial rights that has not been preserved as required by Rule 51(d)(1)(A) or (B)“). These are the only two Rules of Evidence or Civil Procedure that use the phrase ‛plain error.“ To the extent that evidentiary rulings or decisions about jury instructions may, as a matter of administrative convenience, by made in advance of trial (see, e.g., Fed.R.Evid. 103(a)(2)), there is no doubt that the doctrine applies. But to what extent may an appellant invoke the plain error doctrine as to other pretrial rulings?

The complaint in Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 2007 U.S. App. LEXIS 19015 (10th Cir. Aug. 10, 2007), was filed in 1992 and the district judge entered a Rule 41(b) dismissal for failure to prosecute in 2005 — a span of years affording plenty of time to prosecute. In the district court, the plaintiff challenged the Rule 41(b) analysis that led to dismissal of its complaint, but it did not challenge the applicability of Rule 41(b), which was the thrust of its appeal. The Tenth Circuit found that the plaintiff failed to preserve the latter argument, emphasizing that ‛there is a palpable distinction between challenging the correctness of the district court's Rule 41(b) analysis and challenging the applicability of Rule 41(b) itself.“ The Tenth Circuit acknowledged that it had on at least one prior occasion ‛performed a plain-error analysis in civil litigation to address alleged pre-trial errors. See Employers Reinsurance Corp. v. Mid-Continent Cas. Co., 358 F.3d 757, 769-70 (10th Cir. 2004) (applying ‘plain error’ analysis to alleged error in resolution of summary judgment motions).“ The Ecclesiastes Court proceeded to tacitly accept the applicability of the doctrine to the challenge of the Rule 41(b) dismissal not argued below. It affirmed dismissal because, ‛like the plaintiff in Employers Reinsurance Corp., Ecclesiastes has failed in seeking plain-error review to carry its ‘nearly insurmountable burden.’“ The decision is important because of its continuing extension of the plain error doctrine outside its traditional sphere of application.

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