United States: Supreme Court Rules That Failure to Renew Post-Trial Motion Eliminates Possibility of Appeal

On January 23, 2006, in Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., the Supreme Court continued its trend of requiring strict compliance with procedural litigation rules. After respondent ConAgra warned companies selling equipment and processes for browning precooked meats that it intended to protect its rights under its patent for that process, petitioner Unitherm, whose president had invented the process six years before ConAgra filed its patent application, sued ConAgra for a Walker Process Antitrust violation, alleging that ConAgra was attempting to enforce a patent that was obtained through fraud on the Patent and Trademark Office.

The Supreme Court’s decision arose out of defendant ConAgra’s motion practice at trial. Following the conclusion of Unitherm’s case-in-chief, ConAgra made an oral motion for judgment ("JMOL") as a matter of law under Fed. R. Civ. P. 50(a) with respect to "all the counts." In the five minutes afforded by the district court to elaborate on its motion, ConAgra argued that the evidence was insufficient for a reasonable jury to conclude that it had defrauded Unitherm or improperly interfered with Unitherm’s prospective business relations. ConAgra made no mention of the antitrust claim or any of its legal elements, including antitrust injury, intent to monopolize, or any other aspect of monopolization. ConAgra renewed its oral motion for JMOL at the conclusion of evidence and prior to the judge’s submission of the case to the jury.

The jury ultimately found in favor of Unitherm on its antitrust, patent invalidation and improper interference with business relations claims. ConAgra failed to renew its motion for JMOL under Rule 50 following the verdict. On appeal, however, the United States Court of Appeals for the Federal Circuit remanded the antitrust claim for a new trial, finding the evidence was insufficient to prove the legal elements for antitrust liability. The Supreme Court granted certiorari to determine whether the appellate court was entitled to review the sufficiency of the evidence presented by Unitherm, where ConAgra failed to renew its oral motion for JMOL following verdict.

Relying on three cases decided shortly after World War II, the Supreme Court held that appellate courts do not have the power to apply rules flexibly. The Court emphasized that the literal text of Rule 50 required renewal of JMOL motions post-verdict in order for the sufficiency of the evidence issue to be preserved for appellate review. Noting that certain circuit courts had read flexibility into Rule 50, the Supreme Court indicated that no flexibility was appropriate.

The Unitherm ruling is important to trial attorneys because it forces the reduction of oral motions for directed verdict into writing. Unlike oral motions made during the heat of trial, a written motion made post-verdict serves the forces of contemplation and review. Given the page limitations and circumstances surrounding complex litigation, parties are often required to make difficult decisions in post-trial JMOLs. It is now clear that arguments not included in post-trial motion papers cannot be considered by appellate courts. As a result, any party that thinks there may be a chance it will want to raise a sufficiency of the evidence argument should reserve space in its briefing papers for such argument.

Finally, this ruling reinforces the importance of trial counsel paying special attention to procedural requirements during the swirl of events at trial – the Supreme Court requires strict and literal compliance with the rules.

© 2006 Sutherland Asbill & Brennan LLP. All Rights Reserved.

This article is for informational purposes and is not intended to constitute legal advice.