Toward a liberal application of the 'Close of All the Evidence' requirement of Rule 50(b) of the Federal Rules of Civil Procedure: embracing fairness over formalism.

• Author: Ransom, Rollin A.

INTRODUCTION

Rule 50 of the Federal Rules of Civil Procedure(1) allows a trial judge to grant judgment as a matter of law(2) against a party, during or after a trial, on any claim lacking a legally sufficient evidentiary basis.(3) The first sentence of rule 50(b) states:

Whenever a motion for judgment as a matter of law made at the close of

all the evidence is denied or for any reason is not granted, the court is

deemed to have submitted the action to the jury subject to a later determination

of the legal questions raised by the motion.(4) Section (b) therefore requires that in order to move for judgment as a matter of law after a jury verdict has been returned, the movant must first have moved for judgment as a matter of law on the issue in question at the close of all the evidence.(5) Despite this explicit language, when the purposes underlying the "close of all the evidence" requirement have been served,(6) a majority of the circuits have not strictly enforced its terms, thereby creating a "flourishing body of case law on the subject of when a motion for judgment [as a matter of law] may be entertained despite failure to move for a directed verdict at the close of the case."(7) Even those circuits that take a liberal approach to rule 50 use a variety of standards in determining whether excusal is appropriate.(8)

To understand better the controversial application of rule 50(b) at issue here, consider the case of DeMarines v. KLM Royal Dutch Airlines.(9) In DeMarines, the plaintiff boarded an airplane traveling from Zurich to Amsterdam, and ultimately to the United States. During the flight to Amsterdam, he experienced discomfort in his head, apparently due to changes in cabin pressure, causing numbness, garbled speech, and a persistent loss of equilibrium. DeMarines filed suit against the airline under the Warsaw Convention.(10) To prevail under the Convention, a plaintiff must present evidence that he or she suffered bodily injury on board an aircraft as the result of an "accident,"(11) defined by relevant case law as "an unusual or unexpected happening."(12)

In his case-in-chief, DeMarines introduced evidence that six of the 191 passengers on board had experienced aural discomfort, and that an unidentified flight attendant informed another passenger that there was a problem with the air pressure. This constituted his only evidence on the question of whether an accident had occurred.(13) The airline moved for a directed verdict at the close of DeMarines' case-in-chief, arguing that the passenger had not demonstrated the existence of "unusual or unexpected events" sufficient to constitute an accident.(14) The trial judge denied KLM's motion. Although this motion arguably put DeMarines on notice that the airline contended that he had not introduced sufficient evidence to demonstrate the occurrence of an accident, he presented no additional evidence.(15)

In its case-in-chief, the airline introduced the testimony of six crew members, all of whom refuted the plaintiff's claim of insufficient cabin pressurization.(16) The defense then introduced evidence on unrelated issues and rested, but failed to move again for a directed verdict.(17) After the jury returned a verdict for DeMarines, the airline moved for judgment notwithstanding the verdict. The trial court denied the motion and KLM appealed, again arguing that DeMarines did not prove the existence of an accident.(18)

In its opinion, the Third Circuit noted the paucity of evidence on the "accident" question and strongly suggested that DeMarines had failed to establish an element necessary to recover under the Warsaw Convention.(19) Despite this fact, the court refused to reverse the district court's denial of judgment notwithstanding the verdict, in accordance with the Third Circuit's strict approach to rule 50(b).(20) The airline's failure to renew its motion for a directed verdict at the close of all the evidence precluded it from obtaining judgment notwithstanding the verdict, or appealing its denial. Although the court found that the airline likely deserved judgment as a matter of law, the airline's procedural error limited its remedy to a costly and time-consuming new trial.(21)

DeMarines well illustrates the importance of rule 50 interpretation. Under a strict reading of rule 50, a party that fails to move for judgment as a matter of law at the close of all the evidence may not challenge the verdict or appeal the judgment based on insufficient evidence. Some circuits, including the Third Circuit, have taken this approach.(22) Others, however, have adopted a more liberal view of rule 50, and excuse noncompliance with the "close of all the evidence requirement" under certain circumstances.(23) In those circuits, the airline's initial motion in DeMarines, which arguably served to inform DeMarines of the deficiencies in his case, might have adequately preserved the airline's right to obtain a postverdict judgment as a matter of law, or to challenge its denial on appeal.

This Note examines the language and purposes of rule 50 to determine if and when a relaxed application of its requirements is appropriate. Part I considers the terms and goal of the rule and concludes that its purpose is to put the party opposing the motion for judgment as a matter of law on notice of the movant's assertion that the evidence is insufficient as a matter of law, and to provide the opposing party an opportunity to "cure." Part II discusses courts' varying application of the requirement that a motion for judgment as a matter of law made at the close of all the evidence precede a renewal of such a motion after the jury has returned its verdict. Part III analyzes the approaches and argues that, given the purpose behind rule 50(b) and the spirit of the Federal Rules, a liberal interpretation of this requirement is appropriate. This last Part proposes an amendment to the rule which alters its language to reflect better the purposes the rule is intended to serve.

1. THE LANGUAGE AND PURPOSE OF RULE 50(B)

   The advisory committee's note to the 1963 amendments to rule 50 makes clear that "[a] motion for judgment notwithstanding the verdict will not lie unless it was preceded by a motion for a directed verdict made at the close of all the evidence."(24) Many courts, however, have looked to the rule's purposes to determine when its terms should be enforced strictly.(25) This Part therefore considers the reasons behind the rule's enactment.

   1. The Seventh Amendment

      An original purpose of the "close of all the evidence" requirement was to comply with the Seventh Amendment's jury trial guarantee.(26) Although the directed verdict motion existed when the Seventh Amendment was ratified, judgment notwithstanding the verdict did not.(27) As a result, the Supreme Court in 1913 held that the Seventh Amendment prohibited a court from entering judgment in favor of one party when a jury had returned a verdict for the other.(28) Twenty-two years later, however, in Baltimore & Carolina Line, Inc. v. Redman,(29) the Supreme Court undermined this absolutist interpretation. There, the Court stated that when the trial judge had expressly reserved ruling on a motion for a directed verdict at trial, the judge could then legitimately grant judgment notwithstanding the verdict, because the latter action was technically a grant of the constitutionally acceptable directed verdict which the judge had reserved.(30) The Federal Rules of Civil Procedure, originally promulgated two years after Redman in 1937, eliminated the need for an express reservation. Then, as now, rule 50(b) provided that a court is "deemed" to have reserved the determination of legal issues whenever a motion for judgment as a matter of law made at the close of all the evidence "is denied or for any reason is not granted."(31)

      Although the Third Circuit continues to rely upon the constitutional rationale in strictly enforcing the "close of all the evidence" requirement of rule 50(b),(32) the continuing viability of this particular constitutional concern is questionable. This Note argues that when a court applies the proper standard for the granting of a postverdict motion for judgment as a matter of law, it does not deny a litigant's Seventh Amendment rights, even when the court does not strictly enforce the "close of all the evidence" requirement, because the court does not reexamine the facts found by the jury. Rather, the court merely considers whether a sufficient legal basis exists for a party's verdict.(33) The advisory committee notes to the Federal Rules, as well as most courts and commentators, support this view.

      1. The Advisory Committee View

         The constitutional basis for the "close of all the evidence" requirement has long been considered suspect. In 1946, the advisory committee noted that the automatic reservation provision of rule 50(b) was likely unnecessary:

         The provision in the original rule that the court "is deemed to have submitted

         the action to the jury subject to a later determination of the legal

         questions raised by the motion" to direct, resulted from an over-meticulous

         effort to stay within the limits of Baltimore & Carolina Line Inc. v.

         Redman and Slocum v. New York Life Ins. Co. It is an awkward fiction.

         The Advisory Committee thinks it should be eliminated and that it is not

         a denial of the constitutional right to jury trial to grant a judgment,

         notwithstanding a verdict, whether or not the trial court reserved or may

         be "deemed" to have reserved the question of law raised by a motion to

         direct.(34)

         The advisory committee's note to the 1991 amendments similarly downplays this "constitutional" basis of rule 50(b). The 1991 note states, "At one time, this [fictional reservation] requirement was held to be of constitutional stature, being compelled by the Seventh Amendment."(35) In the note accompanying section (b) of the rule, the advisory committee states, "One purpose of this concept was to avoid any...