Commercial Litigation and Arbitration

Denial of Summary Judgment Unreviewable after Trial on Merits — Failure to Raise Sufficiency of the Evidence in 50(b) Motion Likely Precludes Appellate Review

From EEOC v. Southwestern Bell Tel., LP, 2008 U.S. App. LEXIS 26105 (8th Cir. Dec. 19, 2008):

We will not review a district court's denial of a motion for summary judgment after a trial on the merits. See Eaddy v. Yancey, 317 F.3d 914, 916 (8th Cir. 2003) ("Even a cursory review of precedent in this Circuit reveals that we do not review a denial of a summary judgment motion after a full trial on the merits."); see also Metro. Life Ins. Co. v. Golden Triangle, 121 F.3d 351, 354 (8th Cir. 1997) ("[W]e are unable to review the denied summary judgment motion because Met Life had a full and fair opportunity to litigate its position before a jury."). Therefore, because the parties had a full trial on the merits, we will not review the district court's decision to deny AT&T's motion for summary judgment.


It is undisputed that AT&T never filed a renewed motion for judgment as a matter of law after the entry of judgment pursuant to Rule 50(b). The Supreme Court has held that when a party fails to file a motion under Rule 50(b), "there [is] no basis for review of [the party's] sufficiency of the evidence challenge in the Court of Appeals." Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 407 (2006). ***

[Footnote 2] Although the Court in Unitherm did not explicitly hold that courts of appeals lack jurisdiction based on a party's failure to renew its motion for judgment as a matter of law under Rule 50(b), several courts of appeals have considered the issue. The First Circuit has observed that "[t]he Unitherm dissenters suggest that this holding establishes that courts of appeals lack subject-matter jurisdiction over unrenewed sufficiency [of the evidence] challenges in civil cases. There are legitimate questions as to whether the Unitherm holding is jurisdictional." United States v. Maldonado-Garcia, 446 F.3d 227, 230 n.4 (1st Cir. 2006) (internal citation omitted). The Sixth Circuit concluded that, after Unitherm, "it is now clear that renewing the motion postverdict is jurisdictional and cannot be waived" and that the court was "without jurisdiction to consider the merits" of the party's claim. Allison v. City of East Lansing, 484 F.3d 874, 876 (6th Cir. 2007). Yet most recently, the Tenth Circuit acknowledged that the question is open, stating that "we need not definitely decide this jurisdictional question—a matter of first impression—here." Kelley v. City of Albuquerque, 542 F.3d 802, 817 n.15 (10th Cir. 2008). The Tenth Circuit questioned if the Supreme Court's decision in Bowles v. Russell, 551 U.S. , 127 S. Ct. 2360 (2007), has altered the legal analysis concerning whether Unitherm is jurisdictional before concluding that it need not resolve the jurisdictional question. Id. Although we discern little difference between lacking a "basis for review" and lacking jurisdiction, we likewise conclude that we need not decide the issue.

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