Tenth Circuit Holds Parties Must Assert a Defense in a Pre-Verdict Rule 50(a) Motion to Assert the Defense Again in a Post-Verdict Motion Under Rule 5

Per Marshall v. Columbia Lea Regional Hosp., 474 F.3d 733 (10th Cir. Jan. 09, 2007):

We begin by sua sponte addressing one procedural hurdle. Although the officers raised the qualified immunity defense in their answer to Mr. Marshall's amended complaint, in their motion for summary judgment prior to the first appeal in this case, and later in their post-verdict motion for judgment as a matter of law under Rule 50(b)(1)(C), the officers apparently did not raise qualified immunity in their pre-verdict Rule 50(a) motion, which is a prerequisite to a post-verdict motion under Rule 50(b). The renewed motion under Rule 50(b) cannot assert grounds for relief not asserted in the original motion. See Anderson v. United Tel. Co., 933 F.2d 1500, 1503 (10th Cir.1991) (using the “directed verdict” and “judgment n.o.v.” nomenclature of Rule 50 prior to its amendment in 1991); McCardle v. Haddad, 131 F.3d 43, 51 (2d Cir.1997) (“In sum, a posttrial motion for judgment as a matter of law can properly be made only if, and to the extent that, such a motion specifying the same grounds was made prior to the submission of the case to the jury.”). “To hold otherwise would be in contravention of the purposes of Rule 50(a).” Miller v. Eby Realty Group LLC, 396 F.3d 1105, 1115 (10th Cir.2005).

The provisions of Rule 50(a) and (b) thus serve two purposes: they “ ‘protect[ ] the Seventh Amendment right to trial by jury, and ensur[e] that the opposing party has enough notice of the alleged error to permit an attempt to cure it before resting.’ ” Id. (quoting FSLIC v. Reeves, 816 F.2d 130, 138 (4th Cir.1987)). Mr. Marshall does not mention this issue in his response brief before us, although at oral argument, counsel reminded the panel that qualified immunity was not raised until after the jury reached its verdict. Mr. Marshall's failure to challenge the Rule 50(b) motion in his brief specifically on the grounds that the issue was waived by an inadequate Rule 50(a) motion results in a waiver of the issue. State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n. 7 (10th Cir.1994) (stating that failure to raise an issue in appellate brief waives the issue). We thus proceed to qualified immunity issue.