Yesterday the D.C. Circuit joined a circuit split over whether, to preserve the issue for appeal, counsel must raise a “purely legal” argument previously rejected at summary judgment in a Rule 50 motion for judgment as a matter of law.
The case involved estranged siblings who were reunited when their aunt passed away. Kenneth Feld invited his sister over to his condominium to join him in mourning the loss of their aunt. It wasn’t long, however, before the two got into a fight that led to the sister hurling her wine glass at one of the condominium security guards, who then promptly escorted her out of the building against her will.
After filing a lawsuit against her brother for a series of intentional torts, the sister filed “what was effectively a motion for summary judgment” in which she argued that “D.C. law does not permit a condominium owner to use force to exclude another from the building’s common areas.” The district court denied summary judgment, and the sister failed to raise the argument in a subsequent Rule 50 motion before the case went to trial.
Writing for the D.C. Circuit, Judge Thomas Griffith joined the majority of circuits in holding that a party is not required to file a Rule 50 motion to preserve a "purely legal" argument rejected at summary judgment:
It is true that we are powerless to review a challenge to the legal sufficiency of evidence that was rejected at summary judgment and not brought again in a Rule 50 motion. Ortiz v. Jordan, 131 S. Ct. 884, 892 (2011); Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 405 (2006). But the Supreme Court has left open the question whether the same rule applies to preserving “purely legal” arguments that were rejected at summary judgment. See Ortiz, 131 S. Ct. at 892 (declining to address this issue as unnecessary to the holding). At least six circuits have said it does not. See Houskins v. Sheahan, 549 F.3d 480, 489 (7th Cir. 2008); Banuelos v. Constr. Laborers’ Trust Funds for S. Cal., 382 F.3d 897, 902-03 (9th Cir. 2004); Rothstein v. Carriere, 373 F.3d 275, 284 (2d Cir. 2004); United Techs. Corp. v. Chromalloy Gas Turbine Corp., 189 F.3d 1338, 1344 (Fed. Cir. 1999); McPherson v. Kelsey, 125 F.3d 989, 995 (6th Cir. 1997); Ruyle v. Cont’l Oil Co., 44 F.3d 837, 841-42 (10th Cir. 1994). We agree.
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At least two circuits have taken the opposite approach and require a Rule 50 motion to preserve for appeal any issue first raised in a motion for summary judgment. See Ji v. Bose Corp., 626 F.3d 116, 128 (1st Cir. 2010); Chesapeake Paper Prods. Co. v. Stone & Webster Eng’g Corp., 51 F.3d 1229, 1235 (4th Cir. 1995).3 The Fourth Circuit has explained that the distinction we make would require courts “to engage in the dubious undertaking of determining the bases on which summary judgment is denied and whether those bases are ‘legal’ or ‘factual.’” Chesapeake, 51 F.3d at 1235. It is no doubt true that determining whether an issue is based in law or fact or some combination of the two is sometimes “vexing,” Pullman-Standard v. Swint, 456 U.S. 273, 288 (1982), and prudent counsel will make sure to renew their arguments in a Rule 50 motion. But it is equally true that there are cases in which it is clear the appellant has raised a pure issue of law, divorced from any dispute over the facts. See Chemetall, 320 F.3d at 719-20. And there is no question that the issue here was purely legal. Whether D.C. law permits a condominium owner to use force to exclude another individual from the building’s common areas does not depend on the record and turns on no facts. Karen’s pretrial motion presented the issue as a “question of law,” Pl.’s Trial Br. 11, and the district court treated it as such. After reviewing statutes and cases, the district court held that D.C. law permits a condominium owner to use reasonable force in ejecting a trespasser from the common areas of a condominium building. Pretrial Order 4. Nothing took place at trial that would have required the district court to revisit its analysis.
3. The Fifth and Eighth Circuits appear not to have settled on a position. Compare Becker v. Tidewater, Inc., 586 F.3d 358, 365 n.4 (5th Cir. 2009) (embracing the “purely legal” exception), and White Consol. Indus., Inc. v. McGill Mfg. Co., 165 F.3d 1185, 1190 (8th Cir. 1999) (same), with Black v. J.I. Case. Co., 22 F.3d 568, 571 n.5 (5th Cir. 1994) (rejecting it), and Metro. Life. Ins. Co. v. Golden Triangle, 121 F.3d 351, 354 (8th Cir. 1997) (same).
Feld v. Feld, No. 11-7066 (D.C. Circuit July 31, 2012).
[*Hat tip to Steven M. Klepper.]