For Federal Rules junkies only

This is a case that only a federal litigator will love, including trial and appellate lawyers. The Supreme Court is telling us when a party that files an unsuccessful motion for summary judgment can take up those issues on appeal after losing at trial even if they fail to preserve their objection to that issue during trial. The bottom line is that purely legal issues may be raised on appeal even if the party did not assert an objection at trial.  

The case is Dupree v. Younger, issued on May 25. The decision is unanimous, which is often the case when the Supreme Court interprets the Federal Rules of Civil Procedure. 

Here is how things work in practice. You are defending a lawsuit and file a summary judgment motion, arguing that the plaintiff does not have enough evidence to win at trial. The district court denies the motion, the case goes to trial, defendant loses and then takes up an appeal, challenging the verdict on the basis that plaintiff did not have enough evidence to win the trial. Defendant cannot do that. The real appeal from the verdict will be from the trial court's ruling under Rule 50(a), as that motion for judgment as a matter of law will be based on the evidence at trial, not the summary judgment record, which by the time the case reaches trial everyone has forgotten about. So a defendant has to make that evidence-sufficiency motion at trial under Rule 50(a) and then renew that motion post-trial under Rule 50(b) if the trial judge denied the motion for JMOL at trial. 

The exception to that above rule has now been endorsed by the Supreme Court. Here is what happened. Plaintiff is an inmate who claims the correction officer assaulted him. Dupree moved for summary judgment prior to trial, claiming that plaintiff did not comply with the grievance requirements under the Prison Litigation Reform Act, which requires inmates to file an internal complaint before he proceeds in court. At trial, the jury found for the plaintiff and awarded him $700,000 in damages, which could very well make him the wealthiest man in the building. At trial, defendant did not raise the administrative exhaustion defense. But he raises that issue on appeal, claiming the trial court should have granted him summary judgment on that issue.

Plaintiff opposed that appeal, citing case law in some circuits that you cannot raise any issue on appeal that was denied on the summary judgment that you did not renew at trial. The Supreme Court agrees with the defendant correction officer and says the Fourth Circuit may in fact find that defendant did not have to renew that objection under Rule 50(a) at trial since it is possible that nothing would have happened at trial that would have further developed the record and it therefore may have been a purely legal issue.   

What it means for this case in particular is that the Fourth Circuit has consider this issue on remand. The Court of Appeals has to consider if defendant's PLRA objection is "purely legal." If it finds the issue was purely legal, and the Court of Appeals finds that plaintiff did not file the proper grievance under the PLRA, then plaintiff's verdict will disappear.