United States: Going Through The (Rule 56 And Rule 50) Motions

How to preserve the appealability of arguments raised during summary judgment in federal court

Anyone practicing in the federal courts would be wise to study the U.S. Supreme Court's recent decision in Ortiz v. Jordan (No. 09-737), which serves as a how-to (or perhaps a cautionary how-not-to) preserve issues for appeal.

In Ortiz, the Court considered whether a party is permitted to appeal the denial of a summary judgment motion after a full trial on the merits. The answer to this question was a unanimous no. However, a majority of the Supreme Court went one step further. In addressing an issue that neither of the parties included in their petitions for certiorari, the Supreme Court ruled that, to be preserved for appeal, defenses raised at trial must be renewed through post-trial motions under both Rule 50(a) and Rule 50(b). In making this ruling, the Supreme Court not only resolved a split in the federal courts, but also provided a roadmap for practitioners to follow if they plan to appeal adverse decisions from the trial court.

Although the legal question in Ortiz involved a relatively sterile procedural issue, the underlying facts are disturbing. Ortiz was sexually assaulted by a corrections officer while serving a one-year sentence in an Ohio prison. When she reported the assault to two different supervisors at the prison, she was first ignored and then placed in solitary confinement for continuing to talk about the abuse with her fellow prisoners. Ortiz later sued the prison, the corrections officer, the two supervisors, and the governor of Ohio, alleging that they violated her constitutional rights by failing to protect her while she was incarcerated.

The individual defendants moved for summary judgment under Federal Rule 56, claiming, among other things, that they were entitled to qualified immunity. The district court denied these motions, and the defendants chose not to appeal under the collateral order doctrine. The defendants did move for judgment as a matter of law under Federal Rule 50(a) at the close of evidence, but this motion was denied. The case was then submitted to a jury, which awarded Ortiz $625,000 in compensatory and punitive damages. The defendants did not renew their motion for judgment as a matter of law after the verdict, but instead appealed to the Sixth Circuit, arguing that the trial court improperly denied their summary judgment motion.

The Sixth Circuit spent little time on the procedural issue that would later be argued to the Supreme Court. Instead, the court tersely concluded that while appellate courts normally do not review the denial of a summary judgment motion after trial, the defendants' appeal fell within an exception to this rule because they raised the defense of qualified immunity. The court then reviewed the evidence submitted at trial and concluded that the individual defendants were entitled to qualified immunity.

Although the Sixth Circuit did not elaborate on its conclusion on the procedural issue, it appears to be based on an exception that several U.S. Courts of Appeal had developed, which permits the appeal of summary judgment denials after trial, but only for questions of law. All the Courts of Appeal recognized the general rule that the denial of a summary judgment motion is not appealable after a full trial on the merits because the trial "supersedes" the summary judgment proceedings. However, the Sixth, Seventh and Ninth Circuits had carved out an exception to this rule that deemed questions of law raised in a summary judgment motion preserved for post-trial appeal.

On appeal to the Supreme Court, Ortiz argued that a party has several options following the denial of a summary judgment motion. First, if the denial involved a small category of so-called collateral issues, such as the qualified immunity defense raised in Ortiz, the party could take an immediate appeal under the collateral order doctrine. If the party declines this option, it could nonetheless raise the arguments again through a Rule 50 motion, or more accurately, two Rule 50 motions – one under Rule 50(a) after the close of evidence but before the jury gets the case, and a second under Rule 50(b) after the jury delivers its verdict.

In Ortiz, the individual defendants failed to appeal the denial of their summary judgment under the collateral order doctrine, but did move for judgment as a matter of law, under Rule 50(a), at the close of evidence. This motion was denied, and they failed to renew their motion under Rule 50(b) after the jury verdict. By failing to renew their motion, Ortiz argued, the trial superseded the denial of summary judgment, and the Sixth Circuit was powerless to review the district court's denial of both the summary judgment motion and the motion for judgment as a matter of law.

In response, the individual defendants argued that raising the qualified immunity defense in their summary judgment motion preserved the issue for appeal. Specifically, they claimed that a trial does not supersede the summary judgment proceedings; rather, the denial of a summary judgment motion merges into the final judgment and is preserved for review on appeal unless the trial moots the defense. Because their qualified immunity defense was legal rather than factual, the defendants argued that the evidence adduced at trial could not moot the defense, and it was thus properly before the Sixth Circuit for review.

During oral argument, the Supreme Court spent as much time trying to figure out exactly what question it was being asked to rule upon as it did on the merits of any issue. The question before the Court morphed from whether a summary judgment motion could be appealed after a trial on the merits to whether the issues raised in a failed summary judgment motion had to be renewed under both Rule 50(a) and Rule 50(b).

Moreover, when questioning turned to the merits, the Court struggled to develop a rule that could apply regardless of whether a summary judgment motion involved questions of fact, questions of law, or mixed questions of fact and law. The Court noted that Rule 50 was designed to allow district court judges, as the individuals closest to the evidence adduced at trial, to determine whether that evidence permitted judgment as a matter of law. As a result, to further these purposes, the Court seemed receptive to the idea that a summary judgment motion that involved either questions of fact or mixed questions of fact and law would have to be renewed under both Rule 50(a) and Rule 50(b), but seemed to consider such an approach a "pointless exercise" in connection with purely legal arguments.

Chief Justice Roberts echoed these concerns, but nonetheless seemed to advocate for a practical rule that could be easily understood by practitioners and applied by the courts: "Wouldn't it be easier if we just said: Here's the rule from now on, you've got to renew them all in a 50(b) motion and that makes it a lot easier for the trial courts and the appellate courts to figure out . . . when they can consider it and when they can't."

In her opinion for the Court, Justice Ginsburg adopted just such a rule. She began by noting that denial of a summary judgment motion is an interlocutory order that is "simply [one] step along the route to final judgment." Once the case proceeds past this step, the record developed at trial "supersedes the record existing at the time of the summary judgment motion." While the arguments raised on summary judgment do not "vanish" after trial, they are not automatically preserved for appeal, but must instead be renewed under Rule 50 to allow the trial court to evaluate them against the "character and quality of evidence received in court." In other words, the denial of the summary judgment motion cannot be appealed after trial on the merits, but the arguments raised in the motion can be appealed as long as they are properly preserved. This is where the individual defendants and the Sixth Circuit went astray.

The Sixth Circuit purported to review the trial court's denial of the summary judgment motion, but did so by evaluating the qualified immunity defense based on evidence presented at trial. The Supreme Court held that, by "incorrectly placing its ruling under a summary judgment headline," the Sixth Circuit "erred, but not fatally."

What ultimately proved fatal, however, was not that the Sixth Circuit mischaracterized what it did as a review of the summary judgment decision, but that it reviewed the sufficiency of the evidence in the first place. Because the individual defendants failed to renew their motion for judgment as a matter of law under Rule 50(b), the Sixth Circuit had "no warrant to reject the appraisal of the evidence by 'the judge who saw and heard the witnesses and had the feel of the case which no appellate transcript can impart.'" Stated differently, because the individual defendants did not renew their motion under Rule 50(b), the trial judge never had the opportunity to review whether the evidence supported the jury's verdict, and the Sixth Circuit was powerless to essentially take on that role and review the evidence on a cold record.

Ultimately, Ortiz stands for the somewhat unremarkable proposition that litigators must follow the rules. This simple advice is often lost in the complicated world of federal court litigation, but Ortiz makes clear that significant consequences can result if the rules are not followed to the letter.

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