Saturday, October 15, 2005

Ninth Circuit Rebuffs Effort to Use Rule 50 on First Day of Trial

In McSherry v. City of Long Beach, 423 F.3d 1015 (9th Cir. Sep. 08, 2005) the Ninth Circuit had the opportunity to resolve whether Rule 50 could be usedat the outset of a trial prior to the presentation of evidence. Here's an excerpt:

Leonard McSherry appeals the district court's order granting defendant City of Long Beach's ("City's") motion for judgment as a matter of law under Federal Rule of Civil Procedure 50. The court granted defendant's motion on the first day scheduled for trial, prior to the presentation of any evidence in the case.

. . .

The pre-trial use of Rule 50 in this case presents a matter of first impression in this circuit. Indeed, it is difficult to find any case making a comparable use of the rule. We review the grant of judgment as matter of law de novo to determine whether the use of Rule 50 at the outset of trial, prior to the presentation of any evidence, is appropriate. See City Solutions, Inc. v. Clear Channel Comm. Inc., 365 F.3d 835, 839 (9th Cir.2004). We conclude that this use of Rule 50 is not supported by the language of the rule, the advisory committee's notes, or caselaw governing the proper use of Rule 50. Accordingly, we remand for further proceedings.

The text of Rule 50(a) provides: "If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue." Fed.R.Civ.P. 50(a)(1). Thus, Rule 50(a) presumes that a jury trial has begun, and that the nonmoving party "has been fully heard" on the issue prior to the court's ruling. However, Rule 50(a)(2) provides: "Motions for judgment as a matter of law may be made at any time before submission of the case to the jury. Such a motion shall specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment." Fed.R.Civ.P. 50(a)(2). Defendants urge that their motion is proper under Rule 50(a)(2), pointing to the language authorizing motions "at any time before submission of the case to jury" as supporting the principle that a Rule 50 motion may be made at, literally, "any time" once a trial has commenced, regardless of the state of evidence admitted.

We decline to adopt this interpretation of Rule 50(a)(2). Nothing about the language or structure of the provisions suggests that Rule 50(a)(2) has a force independent of Rule 50(a)(1). Reading the two provisions together, it is apparent that Rule 50(a)(1) sets forth the standards under which a court may grant judgment as a matter of law, while Rule 50(a)(2) explains when a party may make a motion. The latter section thus supplements the former by instructing the moving party that it may file a motion until the case is submitted to the jury, but does not eliminate the substantive requirement that a party be "fully heard" on an issue prior to the grant of judgment as a matter of law.


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