Your summary judgment motion was denied. You have proceeded to trial. You are preparing a Rule 50 motion. Should you include those issues raised in your denied summary judgment motion? Must you do so?

We know from Ortiz v. Jordan, 562 U.S. 180 (2011), that you generally cannot appeal the order denying your summary judgment motion after trial. Rather, those issues must be preserved with Rule 50 motions, based on the full trial record. The Supreme Court has recognized an exception to this general rule when the order denying summary judgment involves “a purely legal issue” capable of resolution “with reference only to undisputed facts.” But it can be dangerous to put too much faith in that exception when framing your Rule 50 motions. We previously provided a tip on this in December.

Recently, in Frank C. Pollara Group, LLC, et al. v. Ocean View Inv. Holding, LLC, etc., et al., 784 F.3d 177 (3d Cir. Apr. 23, 2015), the Third Circuit confronted a situation where the appellants attempted to raise their gist-of-the-action argument on appeal, after their summary judgment motion on that argument was denied and they did not raise the argument in their Rule 50 motions at trial.  The appellants contended that the argument was a purely legal issue, such that they did not have to raise it again in their Rule 50 motions. The Third Circuit disagreed.  The court concluded that, critical to their gist-of-the-action argument, “the existence of contractual privity depends on certain predicate facts which, contrary to the Appellants' contentions, were vigorously disputed” and the appellants “failed to preserve their objections to the District Court's summary judgment ruling with motions for judgment as a matter of law under Rule 50, and they thus have lost their ability to raise them now.”

Preservation Issue: If you do not renew your arguments that were denied on summary judgment through your Rule 50 motions, you may not seek appellate review of those arguments, unless they present pure questions of law that can be decided with reference only to undisputed facts.

Tip:  Make a point of reviewing your denied summary judgment motion(s) when preparing your Rule 50 motions.  You may find issues that were raised there that have slipped to the margins as your trial themes developed.  To preserve the ability to raise such issues on appeal, you need to raise them in your Rule 50 motions or risk a determination on appeal that they are not “purely legal issues” and therefore waived. It can be difficult to identify which arguments are purely legal.  Some arguments that appear entirely legal in nature alternatively can be characterized as being predicated upon critical factual determinations.  Or as being veiled challenges to the sufficiency of the evidence.

Consequently, it is a good rule of thumb to be very cautious when omitting denied summary judgment arguments from your Rule 50 motions at trial.  State courts may vary in their approaches to this preservation issue, so consult relevant state authorities when preparing directed verdict/JNOV motions during and after state trials.