Civil procedure - sufficiency of evidence not reviewable in absence of post-verdict judgment as a matter of law or new trial motion - Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc.

• Author: Dennis, Corey M.

Civil Procedure--Sufficiency of Evidence Not Reviewable in Absence of Post-Verdict Judgment as a Matter of Law or New Trial Motion--Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., 546 U.S. 394 (2006)

The Federal Rules of Civil Procedure were enacted in 1938 to "secure the just, speedy, and inexpensive determination of every action." (1) The Federal Rules provide three avenues for challenging the sufficiency of a party's evidence presented at trial: a Rule 50(a) pre-verdict motion for judgment as a matter of law (JMOL), a Rule 50(b) post-verdict renewed motion for JMOL, and a Rule 59 motion for a new trial. (2) In Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., (3) the United States Supreme Court considered whether a party may challenge the sufficiency of evidence on appeal where the party lost on a pre-verdict motion for JMOL, but neither renewed that motion nor moved for a new trial after the verdict. (4) The Court held that a party's failure to make either post-verdict motion in the district court precluded appellate review of the sufficiency of the evidence. (5)

In early 2000, Swift-Eckrich, Inc., doing business as ConAgra Refrigerated Foods (ConAgra), issued a general warning to its competitors that it intended to enforce its rights under U.S. Patent No. 5,952,027 ('027 Patent). (6) The patent, which the U.S. Patent Office issued in 1999, was for "A Method for Browning Precooked Whole Muscle Meat Products." (7) Upon discovering that it invented the process several years earlier, Unitherm brought a lawsuit against ConAgra in the Western District of Oklahoma. (8) Unitherm alleged that ConAgra committed fraud on the Patent and Trademark Office by procuring the '027 Patent and violated [section] 2 of the Sherman Act by attempting to enforce the patent. (9)

Before the court submitted the case to the jury, ConAgra filed a Rule 50(a) motion for JMOL based on legal insufficiency of the evidence, but the court denied the motion. (10) The jury returned a verdict for Unitherm, but ConAgra did not renew its motion for JMOL under Rule 50(b) or move for a new trial under Rule 59. (11) On appeal, the Federal Circuit agreed with ConAgra's position that, despite these omissions, a new trial based on insufficiency of the evidence was proper. (12) The court vacated the jury's judgment for Unitherm and remanded for a new trial. (13) The Supreme Court reversed, holding that a court of appeals may not review the legal sufficiency of evidence where the party requesting relief made a pre-verdict motion for JMOL, but did not renew that motion or move for a new trial after the verdict. (14)

Under the Federal Rules of Civil Procedure, a movant may challenge the sufficiency of the non-movant's presented evidence by filing a Rule 50(a) motion for JMOL, a Rule 50(b) motion for JMOL, or a Rule 59 motion for new trial. (15) A Rule 50(a) motion for JMOL challenges the sufficiency of evidence before the court submits the case to the jury. (16) A movant making a Rule 50(b) renewed motion for JMOL--formerly called a motion for judgment notwithstanding the verdict (JNOV)--requests that the district court enter judgment in her favor even though the jury returned a verdict for the non-movant. (17) A district court will generally grant a new trial under Rule 59 if the verdict is against the clear weight of the evidence, the damages are excessive, the trial was unfair, or the court made erroneous evidentiary rulings. (18)

A movant may not make a Rule 50(b) post-verdict motion for JMOL unless she made a Rule 50(a) pre-verdict motion for JMOL on the same grounds. (19) If a movant files a pre-verdict motion but fails to renew it post-verdict, the appellate court cannot enter judgment in the movant's favor. (20) The Tenth Circuit, however, has held that a new trial may be ordered in such circumstances. (21) In addition, under the plain error doctrine, an appellate court may review an unpreserved claim when refusing to do so would result in a miscarriage of justice. (22)

In Neely v. Martin K. Eby Construction Co., (23) the Supreme Court held that courts of appeals have the power to direct entry of JMOL for a verdict loser where there is insufficient evidence as a matter of law to support the jury's verdict. (24) The Court concluded that the exercise of this power is consistent with the Seventh Amendment, 28 U.S.C. [section] 2106, and Rule 50. (25) The Court later extended Neely, holding that courts of appeals have the power to direct entry of JMOL where expert testimony was inadmissible and thus unavailable to support the jury's verdict. (26) In both cases, however, the movant made a pre-verdict and post-verdict motion for JMOL. (27)

In Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., the Supreme Court considered whether a party who filed a Rule 50(a) motion for JMOL, but failed to renew that motion and failed to move for a new trial, may challenge the sufficiency of evidence on appeal. (28) Relying on the analyses in "The Trilogy," the Court reasoned that the decision whether to grant a new trial or enter judgment under Rule 50(b) "calls for the judgment in the first instance of the judge who saw and heard the witnesses and has the feel of the case which no appellate printed transcript can impart." (29) The Court also concluded that the plain language of Rule 50(b) supports its decision. (30) The Court held that the movant's failure to make either a post-verdict motion for JMOL or motion for new trial in the district court precluded review of the sufficiency of the evidence on appeal. (31)

Although the Court properly concluded that ConAgra's failure to make a Rule 50(b) motion precluded the district court from directing a verdict in favor of ConAgra, this does not necessarily imply that the courts of appeals are without power to review district court judgments or to order fair relief under the...