To preserve a purely legal question for appeal, a party need not move for judgment as a matter of law pursuant to Rule 50 of the Federal Rules of Civil Procedure, if she has already moved for and lost summary judgment on the issue. So says the D.C. Circuit in Feld v. Feld, joining the majority of courts in a circuit split. The minority view of the First and Fourth Circuits is that a Rule 50 motion is necessary to preserve such issues for appeal.
Judge Griffith’s opinion cautions that, even after this decision, “prudent counsel will make sure to renew their arguments in a Rule 50 motion,” because “determining whether an issue is based in law or fact or some combination of the two is sometimes vexing.” In this case, however, the issue was purely legal, and “[n]othing took place at trial that would have required the district court to revisit its analysis” at summary judgment.
After finding the plaintiff had preserved her issue for appeal, the court made short work of the merits: Under D.C. law, the defendant condominium owner acted within his rights in forcibly ejecting a guest–in this case his estranged sister whom he had invited to their aunt’s shiva–from the building’s common areas.
The successful defendant, who is chairman and CEO of Feld Entertainment Inc., has a history in the D.C. Circuit. His company, which owns the Ringling Brothers and Barnum & Bailey Circus, prevailed in an appeal by animal rights activists seeking to enjoin the circus’s treatment of elephants. Feld Entertainment then sued the activist groups for racketeering. In July, the district court denied in part a motion to dismiss.
- Nicholas J. Wagoner, D.C. Circuit Joins Split Over the Preservation of Purely Legal Issues for Appeal, Circuit Splits (Aug. 1, 2012)
- Crocodile Tears Thwart Elephant Plaintiffs, D.C. Circuit Review (Oct. 31, 2011)