Moving for a Judgment on the Merits During a Bench Trial: Fed.R.Civ.P. 52(c) and SCRCP 41(b), 0318 SCBJ, SC Lawyer, March 2018, #24

AuthorAbby Kobrovsky and Jennifer Thiem, J.
PositionVol. 29 Issue 5 Pg. 24

Moving for a Judgment on the Merits During a Bench Trial: Fed.R.Civ.P. 52(c) and SCRCP 41(b)

Vol. 29 Issue 5 Pg. 24

South Carolina BAR Journal

March, 2018

Abby Kobrovsky and Jennifer Thiem, J.

It’s that moment every lawyer hopes for in a bench trial. Opposing counsel has finished presenting all of the evidence supporting an issue critical to their client’s case, and the evidence is simply not enough to establish their claim. At this point, a lawyer may consider moving for a judgment on the merits. One may be tempted to move for a judgment as a matter of law under Federal Rule of Civil Procedure 50(a), but the correct procedure in federal court is to move for judgment on the merits pursuant to Federal Rule of Civil Procedure 52(c) or, in state court, for involuntary non-suit under SCRCP 41(b). While these two sets of rules are commonly confused by lawyers, such a mistake need not occur. The purpose of this article is to clarify the scope of Rule 52(c) and SCRCP 41(b) and explore the differences be- t ween a motion brought under this rule and other dispositive motions.

Scope of Rule 52(c)

Rule 52(c) provides: If a party has been fully heard on an issue during a non jury trial and the court finds against the party on that issue, the court may enter judgment against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue. The court may, however, decline to render any judgment until the close of the evidence. A judgment on partial findings must be supported by findings of fact and conclusions of law as required by Rule 52(a).

A judgment under Rule 52(c) “operates as a decision on the merits in favor of the moving party.”[1] Importantly, judgment may be “entered against both plaintiffs and defendants with respect to issues or defenses that may not be wholly dispositive of a claim or defense.”2 The current version of Rule 52(c) incorporates a former version of Rule 41(b), which provided for bench trials to be involuntarily dismissed as a matter of law when the plaintiff failed to carry its burden of proof. In 1991, this provision was deleted from Rule 41(b) and inserted into Rule 52(c),3 although that transfer was never made to the South Carolina rules. A judgment rendered under this rule is properly referred to as a “judgment on partial findings” or “judgment,”4 although it is often still called an involuntary dismissal.5

Rule 52(c) contemplates that a judge in a bench trial is to fully engage in fact finding when entering a judgment on partial findings. Specifically, when considering a motion under Rule 52(c), the court “applies the same standard of proof and weighs the evidence as it would at the conclusion of the trial.”6 In other words, the court “does not view the evidence through a particular lens or draw inferences favorable to either party.”[7] An appellate court will review the court’s findings of fact under Rule 52(c) under the clearly erroneous standard.8


Rule 52(c) expressly permits the court to enter judgment “at any time that it can appropriately make a dispositive finding of fact on the evidence.”9 This may occur “earlier than the close of the case of the party against whom judgment is rendered.”[10] In addition, a court may enter judgment on partial fundings sua sponte “at any time during a bench trial, so long as the party against whom judgment is to be rendered has been ‘fully heard’ with respect to an issue essential to the party’s case.”[11] While the Rule implies that a party need not wait until the close of the opposing party’s case to move for a judgment, logistically, that is when this motion is most likely to be made. Regardless, if the motion is made before the end of the trial, the court can choose to take it under advisement and proceed with the trial.12 Under such circumstances, the movant should renew the motion at the close of the case.13


Importantly, if the court denies or reserves ruling on a Rule 52(c) motion made during trial, and the moving party puts additional evidence on the issue raised in the motion, the movant waives its right to appeal the court’s denial of, or failure to rule on, the motion.14 “The significance of this rule is that on appeal from a final judgment the court will look to all of the evidence and not merely that put in as part of the plaintiff’s case.”[15] Thus, a lawyer should consider carefully when to make a motion under Rule 52(c) and what evidence to put on if the motion is not immediately granted. A lawyer may ultimately conclude that the prospect of waiver renders the motion unsuitable and wait to challenge the sufficiency of the evidence on appeal. Such a strategy is possible, as failure to make a Rule 52(c) motion does not preclude appealing the court’s findings based on insufficiency of the evidence supporting the court’s conclusions.16

Comparison to judgment as a matter of law under Rule 50(a)

As noted above, a motion for judgment on partial findings can easily be confused with a motion for judgment as a matter of law under Rule 50(a). Rule 50(a)(1) provides: If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for...

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