Making the Rule 50(a) Motion

Rule 50(a)(2) says when and how to ask for judgment as a matter of law, and its two sentences impose two separate requirements. The first sets a deadline: the motion “may be made at any time before the case is submitted to the jury.” The second sets the content: the motion “must specify the judgment sought and the law and facts that entitle the movant to the judgment.”¹ Rule 50(a)(1) tells the court what it may decide once a party has been fully heard, and Rule 50(a)(2) tells the movant what to do to obtain that decision. A party with a strong insufficiency argument can still lose it by moving too late, or by moving in generalities that give the court nothing specific to rule on.

Both requirements serve one concern. One court read the two paragraphs together and reasoned that Rule 50(a)(2) says when a party may make the motion without eliminating the requirement that the opponent be “fully heard” on the issue before judgment is granted. It read the timing language as a safeguard against a movant who waits until it is too late for the non-moving party to perfect its case.² The 1991 advisory committee notes say the same thing: the motion must come before the close of trial “to assure the responding party an opportunity to cure any deficiency in that party’s proof that may have been overlooked until called to the party’s attention.”³ The motion also matters after the trial, because what a party does here decides whether it may seek judgment once the verdict is in. A problem that asks whether a movant is entitled to judgment as a matter of law therefore often has a procedural question inside it, and the timing requirement comes first.

Timing of the Motion

Rule 50(a)(2) fixes the last moment for the motion at submission to the jury, which in practice means before the jury retires to deliberate.⁴ The fully-heard condition from the preceding subsection marks the other edge of the window, because the court may not act on an issue until the opponent has presented its proof on it. A party therefore chooses a moment between the two edges. The words “at any time” describe that freedom of choice, and they do not authorize a motion before the opponent has put on its evidence. The court that read the two provisions together said as much: Rule 50(a)(2) “is not intended to permit pre-trial motions.”⁵

Two moments account for nearly every motion in practice. A defendant may move at the close of the plaintiff’s case, because the plaintiff has by then been fully heard on the relevant issues, and after both sides have rested either party may move.⁶ A chart of the devices that can end a case describes the same window, running from the time the opponent has presented its case until the case goes to the jury.⁷ The judge often does not rule on the spot. The judge reserves decision and submits the case to the jury, and if the verdict goes against the movant and no reasonable jury could have found against the movant, the judge may overturn the verdict by granting the motion.⁸ That sequence explains why the deadline falls at submission while the ruling may come later: the movant must ask before the jury leaves, and the judge may answer afterward. The party who won the verdict is not left without recourse when the judge answers that way. Rule 50(d) lets her, once the judge grants j.n.o.v. for the other side, move for a new trial on her objections to the trial within twenty-eight days of the judgment for the opposing party.⁹ Rule 50(e) covers the parallel case in which the court of appeals concludes that j.n.o.v. should have been granted.¹⁰ Those protections are taken up later in this chapter.

A party who lets the jury retire without ever moving is in serious trouble. In the standard fact pattern, the defendant makes no motion before the case is submitted, the jury returns a verdict for the plaintiff, and the defendant then moves for judgment as a matter of law for the first time. The court should deny the motion. A party may renew the motion after the verdict only if it made a Rule 50(a) motion before the case went to the jury, so a defendant who made none has waived the right to seek judgment as a matter of law.¹¹ Law professors frequently stage exactly this sequence, with the jury retiring while no motion is pending and the verdict loser moving afterward, and the answer is that it is too late.¹² The renewed motion is open only to a party that previously sought judgment as a matter of law sometime during the trial, and it must be filed within 28 days after entry of judgment, so a post-verdict motion with no earlier motion behind it has nothing to renew.¹³

That prerequisite asks only for a motion made “sometime during the trial.” A defendant who moves on a missing element when the plaintiff rests, and then presents a defense without repeating the motion, therefore still has the earlier motion on which a renewal depends.¹⁴ The motion did its work when it was made. The plaintiff had been fully heard and learned of the claimed weakness while the trial was open and the plaintiff could still try to fill the gap. What the renewed motion may argue is a separate question, taken up in the next section.

The deadline sits at submission because that is where the opponent’s chance to respond ends. A party who could stay silent until the verdict could accept a favorable result and attack the proof for the first time after an unfavorable one, at a moment when the opponent could no longer reopen to fill the gap. Requiring the motion before the jury retires forces the movant to say what is missing while the missing proof can still be supplied.¹⁵ The two edges of the window serve the same concern from opposite sides. The fully-heard condition keeps a ruling from coming before the opponent has built a record, and the submission deadline keeps the objection from arriving after the opponent has lost the chance to repair it.

Specificity Requirement

The second sentence of Rule 50(a)(2) asks three things of the movant. It must say what judgment it wants, whether on a whole claim, on a defense, or on a single issue. It must name the law, meaning the element or rule that makes the contested issue necessary. And it must point to the facts, usually the gap in the opponent’s proof.¹⁷ These items track the relief Rule 50(a)(1) offers. The court may resolve an issue against a party, and it may then grant judgment against that party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.¹⁸ A motion that identifies no issue and no legal basis leaves the judge and the opponent guessing at the question the rule treats as decisive.

Consider Penny, who has sued Desmond for negligence after a collision at an intersection and has rested without offering testimony about the color of the light when he drove in. Desmond cannot simply declare that she has failed to prove her case. His motion must say that she offered no evidence of his negligence, and why: no witness has placed him in the intersection against the light. Once the motion puts that gap on the table, Penny’s lawyer may ask to recall her to the stand so that she can give the omitted testimony. A Rule 50(a) motion thus helps ensure that a case turns on its merits and not on an inadvertent omission of trial testimony.¹⁹

Why would Desmond point out the hole in Penny’s case instead of keeping quiet and hoping the jury overlooks it? The answer depends on what he believes about the evidence. If Penny could not have seen the light when he entered the intersection and no other witness could have seen it either, her lawyer’s chance to cure is empty, and the judge may grant the motion. That ruling saves Desmond the time and expense of presenting his side and the risk of a verdict for Penny, and it spares the judge and jury the rest of a case whose outcome is clear.²⁰ If the testimony exists and was only overlooked, Penny supplies it and the jury decides the dispute on the evidence. A movant who wants judgment on a failure of proof accepts the cost of naming that failure, because the motion is the route to the ruling.

The requirement also does work for the court. A motion for judgment as a matter of law asks a question of legal sufficiency and not for a detailed consideration of the evidence,²¹ so the judge needs to know which element is said to lack support. That is a different inquiry from the weighing of evidence, often including live testimony, that a new-trial motion on the great-weight ground requires, and which only the trial judge has had a full opportunity to observe.²² A movant who must write down the issue, the rule, and the facts has to find them first, and a motion that supplies them gives the judge a definite question to decide.

The 1991 advisory committee notes describe Rule 50(a)(2) as imposing “a requirement that the moving party articulate the basis on which a judgment as a matter of law might be rendered,” so that the non-moving party can see how to correct its deficiencies.²³ The timing sentence and the content sentence therefore work as a pair. Timing gives the opponent a chance to respond, and specificity tells the opponent what to respond to. A motion that arrives on schedule but names nothing in particular delivers only half of that protection.

The notice a motion gives reaches only as far as the grounds it states.

One purpose of the pre-verdict motion is to alert the court and the opposing party to an apparent failure of proof and let the non-moving party fill the evidentiary gap if it can. For that reason a post-verdict motion may not expand the grounds on which judgment is sought.²⁴ Had the publisher’s motion included the validity argument, the photographer would have had the chance Penny had in the Desmond example, to offer the missing proof or concede that none exists. A movant should therefore list every element it contends is unsupported. The renewal section returns to how that limit is enforced under Rule 50(b).

Courts do not demand mathematical precision in matching the two motions. Some appellate courts apply Rule 50 in a liberal spirit and have treated a general motion seeking judgment on all counts of the complaint as enough to support a renewed motion that goes into greater detail.²⁵ That generosity concerns how a renewed motion is matched to the original, and it gives a movant no reason to be vague at the start. The safe course is the one the rule describes: state the judgment sought, the legal rule that makes the issue essential, and the facts showing that the proof falls short.