Assume that all matters take place in federal court and that diversity jurisdiction is proper. Assume that all questions stand on their own.
|1. Motion for JMOL. Paul sues Debbie for negligence. After putting on his case-in-chief, Paul moves for judgment as a matter of law (“JMOL”) under Rule 50(a). May he?||Discussion: No. Rule 50(a) does not permit Paul to move for JMOL yet because Debbie has not yet been fully heard on the issue of her negligence. Debbie, however, could move at this time because Paul has finished his case-in-chief.|
|2. Renewed motion for JMOL. Paul sues Debbie for negligence. After the jury comes back with a verdict for Paul, Debbie moves for JMOL. May she?||Discussion: No. Rule 50(b) permits a renewed motion for JMOL (“RJMOL”), but requires that the movant have previously made a motion for JMOL during trial under 50(a).|
|3. Grounds for RJMOL. Paul sues Debbie for negligence. At the close of all the evidence, Debbie moves for JMOL on the basis that she owes no duty to Paul. The motion is denied and the jury later finds for Paul. Two days after entry of judgment, Debbie moves for RJMOL, arguing that no reasonable juror could have found that Paul suffered any damages. May she?||Discussion: No. Motions for JMOL/RJMOL must specify the judgment sought and the law and facts that entitle the movant to the judgment. Rule 50(a)(1). Generally speaking, the grounds of a motion for RJMOL are limited to the grounds asserted in the earlier motion for JMOL. (For discussion of possible exceptions, see Moore’s Federal Practice § 50.43, available on Lexis.) Here, Debbie likely cannot raise new grounds in her RJMOL motion.|
|4. Close of all the evidence. Paul sues Debbie for negligence. At the close of Paul’s case-in-chief, Debbie moves for JMOL on the basis that no reasonable juror could find for Paul. The court denies the motion. Debbie then puts on her defense. The case is submitted to the jury and the jury finds for Paul. Within 10 days after entry of judgment, Debbie moves for RJMOL, asserting the same grounds in her earlier motion. May she?||Discussion: Finally, a yes. Under the pre-2006 version of Rule 50, many courts held the answer was no. This is because the pre-2006 version of Rule 50(b) had language requiring the predicate 50(a) motion to be made “at the close of all the evidence” as a precondition to a renewed motion under 50(b). Thus, under the pre-2006 Rule, if D moved for JMOL (DV) after P’s case in chief but not also at the “close of all the evidence,” D would be foreclosed from putting forth a renewed motion for JMOL (JNOV). This is a huge trap for the unwary. (Prior to the 2006 amendments, many courts liberalized their practice, “permit[ing] post-verdict motions for judgment despite the movant’s failure to reassert a previously made Rule 50(a) motion at the literal ‘’close of all the evidence.’” Moore‘s Federal Practice § 50.40. Compare the current Rule. The “at the close of all the evidence” language is gone. The advisory comments make clear that in accordance with trends in caselaw (noted above), the amendment omitted any requirement that the 50(a) motion be made “at the literal close of all the evidence.”|
|5. Motion for new trial, too. Paul sues Debbie for negligence. At the close of all the evidence, Debbie moves for JMOL, which is denied. The jury finds for Paul. The same day the court enters judgment for Paul, Debbie moves for a new trial and joins a motion for RJMOL. Is this inconsistent motion practice?||Discussion: No, this is ok. Rule 50(b) expressly permits a person to either move for RJMOL alone, or to join a motion for new trial under Rule 59, or to request a new trial under Rule 59 in the alternative. The reason? More options for the trial judge, as well as more options for the court of appeals in case there is a timely appeal. See question 6 for further explanation why.|
|6. Two motions, what to do. Paul sues Debbie for negligence. During trial, Debbie objects to the submission of hearsay evidence. The objection is denied. At the close of all the evidence, Debbie moves for JMOL on the basis of insufficient evidence such that no reasonable juror could find for Paul. That motion is denied. After the jury finds for Paul, and before entry of judgment, Debbie moves for RJMOL (on the basis of insufficient evidence) and for a new trial (on the basis of inadmissible and prejudicial hearsay evidence). The court agrees with both motions. What may the court do?||Discussion: Regarding the motion for RJMOL, the court here (where a verdict was returned) may allow the judgment to stand, order a new trial, or direct entry of JMOL. If the judge believes that the evidence is insufficient as a matter of law to support the jury’s verdict, then she should grant the motion for RJMOL. That will end the case and permit immediate appeal by Paul. However, the judge shouldn’t ignore the motion for a new trial. She must also conditionally rule on the motion for new trial. Here, the judge believes that the disputed evidence was inadmissible hearsay and that it was prejudicial (not harmless error). The court should conditionally grant the motion for new trial as well. This saves time during an appeal. Thus, on appeal:
Counterfactual raising issues of appealability: Suppose the district judge denies the motion for RJMOL but grants the motion for a new trial. Can Paul immediately appeal? Probably not because the grant of a motion for a new trial is interlocutory and not immediately appealable. (In the paragraph above, the order was final because the district judge granted RJMOL, ending the case; in contrast, denying RJMOL and granting a new trial does not end the case because there’s going to be a new trial.) That doesn’t mean that Paul can never appeal the grant of new trial. Suppose Paul loses at trial # 2 and he appeals. At that time, he can then assert the earlier grant of a new trial as error. If the appellate court agrees with him, it will reinstate the verdict from trial # 1. If this series of events sounds complicated, it might help to create a timeline or a flowchart.
|7. Standards. The district court is faced with motions for RJMOL and for a new trial. What are the standards?||Discussion: This is a matter for discussion and exam review. Regarding JMOL/RJMOL, it appears that the scintilla rule, if used by federal courts at all, may be limited to cases under FELA, the Jones Act, or similar plaintiff-friendly federal statutes. But for the most part, federal courts use the so-called “substantial evidence” rule. For motions for a new trial, many grounds can serve as the basis. Examples may include prejudicial legal error by the court (such as an erroneous jury instruction or erroneous introduction of evidence) and lawyer misconduct. Another basis is when the judge believes the jury verdict was against the “clear weight” of the evidence or similarly worded standards. Unlike a motion for JMOL/RJMOL, a district judge deciding a motion for new trial may consider the credibility of witnesses and the weight of the evidence.|
|8. Remittitur. Debbie runs over Paul’s big toe. Paul is wearing a steel boot and suffers minor injuries. He has no loss of wages and no mental anguish. He sues Debbie for negligence. The jury awards Paul $1 million. Debbie moves for a new trial on the basis of excessive damages. The judge believes that the facts support the finding of negligence but nevertheless finds the verdict shockingly excessive. Can the judge do anything short of granting a new trial on damages?||Discussion: The federal court might be able to avoid a new trial by ordering “remittitur” to a lower amount (say, $1000). Remittitur is a conditional new trial: Paul can either accept lower damages, or the court will grant Debbie’s motion for a new trial on damages. This gives Paul an uncomfortable choice: he can either accept the damages reduction or risk a new trial where he could get even lower damages. A federal court may not, however, unilaterally lower Paul’s damages – it’s up to Paul whether he accepts remittitur or the partial new trial. Question: what if a statute limited the amount of damages that Paul could get as a matter of law? Could the court unilaterally reduce the damages without giving Paul an option for a new trial?|
|9. Additur. Debbie runs over Paul’s big toe, crushing it beyond medical repair. Paul was a professional football player who won the Superbowl MVP award, but unfortunately, the injury ended his career. Paul has also suffered tremendous emotional harm and has difficulty getting new work. He sues Debbie for negligence. The jury finds for Paul, but unbelievably, awards him only $10,000. Paul moves for a new trial on the issue of damages. The judge finds the damages award to be shockingly low. May the court order a conditional new trial on damages unless Debbie agrees to increase the damages to $50,000,000?||Discussion: Not in federal court. In Dimick, the Supreme Court held that the practice of “additur” (telling D to either pay more damages or suffer a new trial on damages) violates the Seventh Amendment. Some commentators believe that if the issue were to arise again, the Supreme Court would overrule Dimick. Regarding state courts, because the Seventh Amendment does not apply to the states, some states permit additur.
Counterhypothetical: suppose Paul sues Debbie for violation of a consumer protection statute that requires minimum statutory damages of $1000 per violation. The jury finds that Debbie violated the statute once and awards Paul $1 damages. Could the judge increase the damages to $1000 without violating the Seventh Amendment? What arguments might you make?
Revised Apr. 9, 2015