CIVIL PROCEDURE | Is 10th Cir. out of step on motion rules?

The 10th U.S. Circuit Court of Appeals plans to review a lower court's refusal to order judgment despite the moving party's failure to renew a preverdict motion.

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Almost alone among the circuits, the 10th U.S. Circuit Court of Appeals will review a trial court’s preverdict refusal to order judgment as a matter of law, even if the moving party fails to renew its preverdict motion under Federal Rule of Civil Procedure 50(a) with a post-verdict motion under Rule 50(b). As the court noted in April’s Cummings v. General Motors Corp., No. 02-6340, “the vast majority of other circuits have held that the failure to renew a motion for judgment as a matter of law following a jury verdict precludes an appellate court from reviewing the sufficiency of the evidence,” pointing to cases from the 1st, 2d, 3d, 5th, 6th, 8th, 9th and Federal circuits. (The 10th Circuit is not entirely alone, since the 4th and 5th circuits have taken the same approach, at least on occasion.) The 10th Circuit doesn’t let negligent litigants entirely off the hook. For instance, Tracey Cummings, who claimed that a faulty General Motors seat and seat belt caused her paralysis in an accident, was allowed to challenge a trial judge’s denial of her Rule 50(a) motion for a directed verdict even though she failed to follow it up with a Rule 50(b) motion after the jury ruled in favor of GM. But under the 10th Circuit’s practice, the most she could hope for would be a new trial; given her procedural neglect, she could not expect the appellate panel to go ahead and direct the verdict in her favor. Ordinarily, when a panel finds that its circuit is out of step with a lopsided majority, it will at least explain the reasons why the circuit chose the path it did. The Cummings decision is curiously silent on that score. The panel said only that it is duty-bound to follow a precedent the original reasons for which, the court seemed to hint, are lost in the mists of time. ‘Johnson’ One can imagine a defense the 10th Circuit might make for its idiosyncrasy-if a party puts a trial judge and the other parties on notice of a sufficiency of the evidence claim through a Rule 50(a) motion at the close of the evidence, what prejudice is there to anyone when the party fails to raise what is essentially the same claim in a Rule 50(b) motion? But that defense would appear to be closed off by the U.S. Supreme Court’s 1952 decision in Johnson v. New Haven & Hartford R.R. Co., 344 U.S. 48. The court ruled that Rule 50(b)’s “requirement of a timely application for judgment after verdict is not an idle motion.” Among its reasons was the idea that a Rule 50(b) motion is not simply a repeat of a Rule 50(a) motion, but has been transformed by the fact of a jury verdict: “This verdict solves factual questions against the post-verdict movant and thus emphasizes the importance of the legal issues.” The Cummings panel cited Johnson to explain why it could not direct a verdict in the absence of a timely Rule 50(b) motion in the trial court. But on what grounds does the 10th Circuit reserve the right to order a new trial in the absence of a Rule 50(b) motion, which would seem to go against the spirit, if not the letter, of Johnson? The Cummings panel didn’t say. Could the 10th Circuit’s precedents rest on a misreading of Johnson? The first line of Johnson reads: “This case raises questions concerning the power of a Court of Appeals to render judgment for a defendant instead of merely ordering a new trial.” But in Johnson, the power to grant a new trial was predicated on a timely motion for a new trial and was not merely the residue of a Rule 50(a) motion. Young’s e-mail is [email protected].

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