A Post-Trial Motion for Judgment as a Matter of Law under Rule 50(b) May Only be Made on the Same Specific Grounds as the Pre-Verdict Motion under Rule 50(a)

Lore v. City of Syracuse, 2012 U.S. App. LEXIS 1954 (2d Cir. Feb. 2, 2012):

Rule 50 of the Federal Rules of Civil Procedure provides in part that "[a] motion for judgment as a matter of law may be made at any time before the case is submitted to the jury." Fed. R. Civ. P. 50(a)(2). The principal purpose of the requirement that any such motion be made before the case is submitted to the jury is "to assure the responding party an opportunity to cure any deficiency in that party's proof." E.g., Piesco v. Koch, 12 F.3d at 340; see, e.g., Baskin v. Hawley, 807 F.2d 1120, 1134 (2d Cir. 1986). To ensure that that opportunity is a "fair" one, Piesco v. Koch, 12 F.3d at 340, Rule 50(a) also provides that "[t]he motion must specify the judgment sought and the law and facts that entitle the movant to the judgment," Fed. R. Civ. P. 50(a)(2) (emphases added). "[T]he specificity requirement is obligatory." Holmes v. United States, 85 F.3d 956, 962 (2d Cir. 1996) (internal quotation marks omitted). A Rule 50(a) motion requesting judgment as a matter of law on one ground but omitting another is insufficient to preserve a JMOL argument based on the latter. See, e.g., id. at 961-63; Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 164 (2d Cir. 1998).

If the Rule 50(a) motion is not granted, the movant may, no later than 28 days after the entry of a judgment, "file a renewed motion for judgment as a matter of law." Fed. R. Civ. P. 50(b) (emphasis added). However,

[b]ecause the Rule 50(b) motion is only a renewal of the preverdict motion, it can be granted only on grounds advanced in the preverdict motion. The earlier motion informs the opposing party of the challenge to the sufficiency of the evidence and affords a clear opportunity to provide additional evidence that may be available. The earlier motion also alerts the court to the opportunity to simplify the trial by resolving some issues, or even all issues, without submission to the jury.

Fed. R. Civ. P. 50 Advisory Committee Note (2006) (emphasis added); see, e.g., id. Advisory Committee Note (1991) ("[a] post-trial motion for judgment can be granted only on grounds advanced in the pre-verdict motion"); Holmes v. United States, 85 F.3d at 962. As to any issue on which proper Rule 50 motions were not made, JMOL may not properly be granted by the district court, or upheld on appeal, or ordered by the appellate court unless that action is required in order to prevent manifest injustice. See, e.g., Kirsch v. Fleet Street, Ltd., 148 F.3d at 164; Galdieri-Ambrosini v. National Realty & Development Corp., 136 F.3d 276, 287 (2d Cir. 1998).

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