Appellate Procedure,  Federal Procedure,  Post-Trial Practice,  Waiver of Issues

Unitherm Precludes Plain Error Review, Too

Watch rule 50 of the Federal Rules of Civil Procedure!

In Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc. (2006) 546 U.S. 394, the Supreme Court held that a party who fails to renew a Rule 50(a) pre-verdict motion for judgment as a matter of law by moving under Rule 50(b) post-verdict waives any review of the sufficiency of the evidence.¬† Prior to Unitherm, an appellant in the Ninth Circuit likewise waived sufficiency of the evidence review in such circumstances, but the Court of Appeals could review for plain error on the face of the record that would result in a “manifest miscarriage of justice” if not corrected¬† See Patel v. Penman (1996) 103 F.3d 868, 878.

In Nitco Holding Corp. v. Boukijian, case no. 05-16438 (June 25, 2007), the Ninth Circuit holds that such plain error review is likewise precluded by Unitherm.  In the absence of both a Rule 50(a) motion and a post-verdict Rule 50(b) motion either for judgment as a matter of law or for a new trial, the Court of Appeals cannot review even for plain error.

So don’t forget those post-verdict motions.