(Slip Opinion) OCTOBER TERM, 2005 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
UNITHERM FOOD SYSTEMS, INC. v. SWIFT-
ECKRICH, INC., DBA CONAGRA REFRIGERATED
FOODS
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
No. 04–597. Argued November 2, 2005—Decided January 23, 2006
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, and one of ConAgra’s direct competitors jointly
filed suit in an Oklahoma federal court. As relevant here, they
sought a declaration that ConAgra’s patent was invalid and unen-
forceable and alleged that ConAgra had violated §2 of the Sherman
Act by attempting to enforce a patent obtained by fraud on the Patent
and Trademark Office, see Walker Process Equipment, Inc. v. Food
Machinery & Chemical Corp., 382 U. S. 172, 174. The District Court
found the patent invalid and allowed the Walker Process claim to pro-
ceed to trial. Before the case was submitted to the jury, ConAgra
moved for a directed verdict under Federal Rule of Civil Procedure
50(a) based on legal insufficiency of the evidence. The court denied
the motion, the jury returned a verdict for Unitherm, and ConAgra
neither renewed its motion for judgment as a matter of law pursuant
to Rule 50(b) nor moved for a new trial on antitrust liability pursuant
to Rule 59. On appeal to the Federal Circuit, ConAgra maintained
that there was insufficient evidence to sustain the Walker Process
verdict. The court applied Tenth Circuit law, under which a party
that has failed to file a postverdict sufficiency of the evidence chal-
lenge may nonetheless raise such a claim on appeal, so long as the
party filed a Rule 50(a) motion before submission of the case to the
jury. The only available relief in such a circumstance is a new trial.
Freed to examine the sufficiency of the evidence, the Federal Circuit
2 UNITHERM FOOD SYSTEMS, INC. v. SWIFT-ECKRICH, INC.
Syllabus
vacated the judgment and ordered a new trial.
Held: Since respondent failed to renew its preverdict motion as speci-
fied in Rule 50(b), the Federal Circuit had no basis for reviewing re-
spondent’s sufficiency of the evidence challenge. Rule 50 sets forth
the requirements, establishing two stages, for challenging the suffi-
ciency of the evidence in a civil jury trial. Rule 50(a) allows a chal-
lenge prior to the case’s submission to the jury, authorizing the dis-
trict court to grant the motion at the court’s discretion. Rule 50(b),
by contrast, sets forth the requirements for renewing the challenge
after the jury verdict and entry of judgment. A party’s failure to file
a Rule 50(b) postverdict motion deprives an appellate court of the
“power to direct the District Court to enter judgment contrary to the
one it had permitted to stand.” Cone v. West Virginia Pulp & Paper
Co., 330 U. S. 212, 218. It also deprives an appellate court of the
power to order the entry of judgment in favor of that party where the
district court directed the jury’s verdict, Globe Liquor Co. v. San Ro-
man, 332 U. S. 571, and where the district court expressly reserved a
party’s preverdict directed verdict motion and then denied it after the
verdict, Johnson v. New York, N. H. & H. R. Co., 344 U. S. 48. A
postverdict motion is necessary because determining “whether a new
trial should be granted or a judgment entered under Rule 50(b) calls
for the judgment in the first instance of the judge who saw and heard
the witnesses and has the feel of the case which no appellate printed
transcript can impart.” Cone, supra, at 216. Moreover, the require-
ment “is not an idle motion” but “an essential part of the rule, firmly
grounded in principles of fairness.” Johnson, supra, at 53. These au-
thorities require reversal of the judgment below. This Court’s obser-
vations about the postverdict motion’s necessity and the benefits of
the district court’s input at that stage apply with equal force whether
a party is seeking judgment as a matter of law or simply a new trial.
Contrary to respondent’s argument, the Cone, Globe Liquor, and
Johnson outcomes underscore this holding. Those litigants all se-
cured new trials, but they had moved for a new trial postverdict in
the district court and did not seek to establish their entitlement to a
new trial based solely on a denied Rule 50(a) motion. This result is
further validated by the purported basis of respondent’s appeal,
namely the District Court’s denial of its Rule 50(a) motion. Cone,
Globe Liquor, and Johnson unequivocally establish that the precise
subject matter of a party’s Rule 50(a) motion cannot be appealed
unless that motion is renewed pursuant to Rule 50(b). Respondent,
rather than seeking to appeal the claim raised in its Rule 50(a) mo-
tion, seeks a new trial based on legal insufficiency of the evidence. If
a litigant that has failed to file a Rule 50(b) motion is foreclosed from
seeking the relief sought in its Rule 50(a) motion, then surely re-
Cite as: 546 U. S. ____ (2006) 3
Syllabus
spondent is foreclosed from seeking relief it did not and could not
seek in its preverdict motion. Rule 50(b)’s text confirms that respon-
dent’s Rule 50(a) motion did not give the District Court the option of
ordering a new trial, for it provides that a district court may only or-
der a new trial based on issues raised in a Rule 50(a) motion when
“ruling on a renewed motion” under Rule 50(b). If the District Court
lacked such power, then the Court of Appeals was similarly power-
less. Rule 50(a)’s text and application also support this result. A dis-
trict court may enter judgment as a matter of law when it concludes
that the evidence is legally insufficient, but it is not required to do so.
Thus, the denial of respondent’s Rule 50(a) motion was not error, but
merely an exercise of the District Court’s discretion. Pp. 4–12.
375 F. 3d 1341, reversed.
THOMAS, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and O’CONNOR, SCALIA, SOUTER, GINSBURG, and BREYER, JJ.,
joined. STEVENS, J., filed a dissenting opinion, in which KENNEDY, J.,
joined.
Cite as: 546 U. S. ____ (2006) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 04–597
_________________
UNITHERM FOOD SYSTEMS, INC., PETITIONER v.
SWIFT-ECKRICH, INC., DBA CONAGRA
REFRIGERATED FOODS
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FEDERAL CIRCUIT
[January 23, 2006]
JUSTICE THOMAS delivered the opinion of the Court.
Ordinarily, a party in a civil jury trial that believes the
evidence is legally insufficient to support an adverse jury
verdict will seek a judgment as a matter of law by filing a
motion pursuant to Federal Rule of Civil Procedure 50(a)
before submission of the case to the jury, and then (if the
Rule 50(a) motion is not granted and the jury subse-
quently decides against that party) a motion pursuant to
Rule 50(b). In this case, however, the respondent filed a
Rule 50(a) motion before the verdict, but did not file a
Rule 50(b) motion after the verdict. Nor did respondent
request a new trial under Rule 59. The Court of Appeals
nevertheless proceeded to review the sufficiency of the
evidence and, upon a finding that the evidence was insuf-
ficient, remanded the case for a new trial. Because our
cases addressing the requirements of Rule 50 compel a
contrary result, we reverse.
I
The genesis of the underlying litigation in this case was
ConAgra’s attempt to enforce its patent for “A Method for
2 UNITHERM FOOD SYSTEMS, INC. v. SWIFT-ECKRICH, INC.
Opinion of the Court
Browning Precooked Whole Muscle Meat Products,” U. S.
Patent No. 5,952,027 (’027 patent). In early 2000, Con-
Agra issued a general warning to companies who sold
equipment and processes for browning precooked meats
explaining that it intended to “ ‘aggressively protect all of
[its] rights under [the ’027] patent.’ ” 375 F. 3d 1341, 1344
(CA Fed. 2004). Petitioner Unitherm sold such processes,
but did not receive ConAgra’s warning. ConAgra also
contacted its direct competitors in the precooked meat
business, announcing that it was “ ‘making the ’027 Patent
and corresponding patents that may issue available for
license at a royalty rate of 10¢ per pound.’ ” Id., at 1345.
Jennie-O, a direct competitor, received ConAgra’s corre-
spondence and undertook an investigation to determine its
rights and responsibilities with regard to the ’027 patent.
Jennie-O determined that the browning process it had
purchased from Unitherm was the same as the process
described in the ’027 patent. Jennie-O further determined
that the ’027 patent was invalid because Unitherm’s
president had invented the process described in that pat-
ent six years before ConAgra filed its patent application.
Consistent with these determinations, Jennie-O and
Unitherm jointly sued ConAgra in the Western District of
Oklahoma. As relevant here, Jennie-O and Unitherm
sought a declaration that the ’027 patent was invalid and
unenforceable, and alleged that ConAgra had violated §2
of the Sherman Act, 15 U. S. C. §2, by attempting to en-
force a patent that was obtained by committing fraud on
the Patent and Trademark Office (PTO). See Walker
Process Equipment, Inc. v. Food Machinery & Chemical
Corp., 382 U. S. 172, 174 (1965) (holding that “the enforce-
ment of a patent procured by fraud on the Patent Office may
be violative of §2 of the Sherman Act provided the other
elements necessary to a §2 case are present”). The District
Court construed the ’027 patent and determined that it was
invalid based on Unitherm’s prior public use and sale of the
Cite as: 546 U. S. ____ (2006) 3
Opinion of the Court
process described therein. 35 U. S. C. §102(b). After dis-
missing Jennie-O for lack of antitrust standing, the District
Court allowed Unitherm’s Walker Process claim to proceed
to trial. Prior to the court’s submission of the case to the
jury, ConAgra moved for a directed verdict under Rule 50(a)
based on legal insufficiency of the evidence. The District
Court denied that motion.1 The jury returned a verdict for
Unitherm, and ConAgra neither renewed its motion for
judgment as a matter of law pursuant to Rule 50(b), nor
moved for a new trial on antitrust liability pursuant to Rule
59.2
On appeal to the Federal Circuit, ConAgra maintained
that there was insufficient evidence to sustain the jury’s
Walker Process verdict. Although the Federal Circuit has
concluded that a party’s “failure to present the district
court with a post-verdict motion precludes appellate re-
view of sufficiency of the evidence,” Biodex Corp. v. Lore-
dan Biomedical, Inc., 946 F. 2d 850, 862 (1991), in the
instant case it was bound to apply the law of the Tenth
Circuit. 375 F. 3d, at 1365, n. 7 (“On most issues related
to Rule 50 motions . . . we generally apply regional circuit
law unless the precise issue being appealed pertains
uniquely to patent law”). Under Tenth Circuit law, a
party that has failed to file a postverdict motion challeng-
——————
1 Petitioner contends that respondent’s Rule 50(a) motion pertained
only to the fraud element of petitioner’s Walker Process claim, and that
it did not encompass the remaining antitrust elements of that claim.
Because we conclude that petitioner is entitled to prevail irrespective of
the scope of respondent’s Rule 50(a) motion, we assume without decid-
ing that that motion pertained to all aspects of petitioner’s §2 claim.
But see Amendments to Federal Rules of Civil Procedure, 134 F. R. D.
525, 687 (1991) (“A post-trial motion for judgment can be granted only
on grounds advanced in the pre-verdict motion”).
2 While ConAgra did file a postverdict motion seeking a new trial on
antitrust damages, that motion did not seek to challenge the sufficiency
of the evidence establishing antitrust liability and thus has no bearing
on the instant case.
4 UNITHERM FOOD SYSTEMS, INC. v. SWIFT-ECKRICH, INC.
Opinion of the Court
ing the sufficiency of the evidence may nonetheless raise
such a claim on appeal, so long as that party filed a Rule
50(a) motion prior to submission of the case to the jury.
Cummings v. General Motors Corp., 365 F. 3d 944, 950–
951 (2004). Notably, the only available relief in such a
circumstance is a new trial. Id., at 951.
Freed to examine the sufficiency of the evidence, the
Federal Circuit concluded that, although Unitherm had
presented sufficient evidence to support a determination
that ConAgra had attempted to enforce a patent that it
had obtained through fraud on the PTO, 375 F. 3d, at
1362, Unitherm had failed to present evidence sufficient to
support the remaining elements of its antitrust claim. Id.,
at 1365 (“Unitherm failed to present any economic evi-
dence capable of sustaining its asserted relevant antitrust
market, and little to support any other aspect of its Sec-
tion 2 claim”). Accordingly, it vacated the jury’s judgment
in favor of Unitherm and remanded for a new trial. We
granted certiorari, 543 U. S. 1186 (2005), and now reverse.
II
Federal Rule of Civil Procedure 50 sets forth the proce-
dural requirements for challenging the sufficiency of the
evidence in a civil jury trial and establishes two stages for
such challenges—prior to submission of the case to the
jury, and after the verdict and entry of judgment. Rule
50(a) allows a party to challenge the sufficiency of the
evidence prior to submission of the case to the jury, and
authorizes the District Court to grant such motions at the
court’s discretion:
“(a) JUDGMENT AS A MATTER OF LAW.
“(1) If during a trial by jury a party has been fully
heard on an issue and there is no legally sufficient
evidentiary basis for a reasonable jury to find for that
party on that issue, the court may determine the issue
against that party and may grant a motion for judg-
Cite as: 546 U. S. ____ (2006) 5
Opinion of the Court
ment as a matter of law against that party with re-
spect to a claim or defense that cannot under the con-
trolling law be maintained or defeated without a fa-
vorable finding on that issue.
“(2) Motions for judgment as a matter of law may be
made at any time before submission of the case to the
jury. Such a motion shall specify the judgment sought
and the law and the facts on which the moving party
is entitled to the judgment.”
Rule 50(b), by contrast, sets forth the procedural require-
ments for renewing a sufficiency of the evidence challenge
after the jury verdict and entry of judgment.
“(b) RENEWING MOTION FOR JUDGMENT AFTER
TRIAL; ALTERNATIVE MOTION FOR NEW TRIAL. If, for
any reason, the court does not grant a motion for judg-
ment as a matter of law made at the close of all the
evidence, the court is considered to have submitted
the action to the jury subject to the court’s later decid-
ing the legal questions raised by the motion. The
movant may renew its request for judgment as a mat-
ter of law by filing a motion no later than 10 days af-
ter entry of judgment—and may alternatively request
a new trial or join a motion for a new trial under Rule
59. In ruling on a renewed motion, the court may:
“(1) if a verdict was returned:
“(A) allow the judgment to stand,
“(B) order a new trial, or
“(C) direct entry of judgment as a matter of
law . . . .”
This Court has addressed the implications of a party’s
failure to file a postverdict motion under Rule 50(b) on
several occasions and in a variety of procedural contexts.
This Court has concluded that, “[i]n the absence of such a
motion” an “appellate court [is] without power to direct the
6 UNITHERM FOOD SYSTEMS, INC. v. SWIFT-ECKRICH, INC.
Opinion of the Court
District Court to enter judgment contrary to the one it had
permitted to stand.” Cone v. West Virginia Pulp & Paper
Co., 330 U. S. 212, 218 (1947). This Court has similarly
concluded that a party’s failure to file a Rule 50(b) motion
deprives the appellate court of the power to order the entry
of judgment in favor of that party where the district court
directed the jury’s verdict, Globe Liquor Co. v. San Roman,
332 U. S. 571 (1948), and where the district court expressly
reserved a party’s preverdict motion for a directed verdict
and then denied that motion after the verdict was returned.
Johnson v. New York, N. H. & H. R. Co., 344 U. S. 48 (1952).
A postverdict motion is necessary because “[d]etermination
of whether a new trial should be granted or a judgment
entered under Rule 50(b) calls for the judgment in the first
instance of the judge who saw and heard the witnesses and
has the feel of the case which no appellate printed transcript
can impart.”3 Cone, supra, at 216. Moreover, the “require-
ment of a timely application for judgment after verdict is not
an idle motion” because it “is . . . an essential part of the
rule, firmly grounded in principles of fairness.” Johnson,
supra, at 53.
The foregoing authorities lead us to reverse the judg-
ment below. Respondent correctly points out that these
authorities address whether an appellate court may enter
judgment in the absence of a postverdict motion, as op-
——————
3 Neither Neely v. Martin K. Eby Constr. Co., 386 U. S. 317 (1967), nor
Weisgram v. Marley Co., 528 U. S. 440 (2000), undermine our judgment
about the benefit of postverdict input from the district court. In those
cases this Court determined that an appellate court may, in certain
circumstances, direct the entry of judgment when it reverses the district
court’s denial of a Rule 50(b) motion. But in such circumstances the
district court will have had an opportunity to consider the propriety of
entering judgment or ordering a new trial by virtue of the postverdict
motion. Moreover, these cases reiterate the value of the district court’s
input, cautioning the courts of appeals to be “ ‘constantly alert’ to ‘the trial
judge’s first-hand knowledge of witnesses, testimony, and issues.’ ” Id., at
443 (quoting Neely, supra, at 325).
Cite as: 546 U. S. ____ (2006) 7
Opinion of the Court
posed to whether an appellate court may order a new trial
(as the Federal Circuit did here). But this distinction is
immaterial. This Court’s observations about the necessity
of a postverdict motion under Rule 50(b), and the benefits
of the district court’s input at that stage, apply with equal
force whether a party is seeking judgment as a matter of
law or simply a new trial. In Cone, this Court concluded
that, because Rule 50(b) permits the district court to
exercise its discretion to choose between ordering a new
trial and entering judgment, its “appraisal of the bona
fides of the claims asserted by the litigants is of great
value in reaching a conclusion as to whether a new trial
should be granted.” 330 U. S., at 216 (emphasis added).
Similarly, this Court has determined that a party may
only pursue on appeal a particular avenue of relief avail-
able under Rule 50(b), namely the entry of judgment or a
new trial, when that party has complied with the Rule’s
filing requirements by requesting that particular relief
below. See Johnson, supra, at 54 (“Respondent made a
motion to set aside the verdict and for new trial within the
time required by Rule 50(b). It failed to comply with
permission given by 50(b) to move for judgment n. o. v.
after the verdict. In this situation respondent is entitled
only to a new trial, not to a judgment in its favor”).4
——————
4 The dissent’s suggestion that 28 U. S. C. §2106 permits the Courts
of Appeals to consider the sufficiency of the evidence underlying a civil
jury verdict notwithstanding a party’s failure to comply with Rule 50 is
foreclosed by authority of this Court. While the dissent observes that
§2106 was enacted after Cone and Globe Liquor Co. v. San Roman, 332
U. S. 571 (1948), post, at 2 (opinion of STEVENS, J.), it fails to note that
it was enacted prior to Johnson. Johnson explicitly reaffirmed those
earlier cases, concluding that “in the absence of a motion for judgment
notwithstanding the verdict made in the trial court within ten days
after reception of a verdict [Rule 50] forbids the trial judge or an
appellate court to enter such judgment.” 344 U. S., at 50. Moreover, in
Neely, this Court observed that §2106 is “broad enough to include the
power to direct entry of judgment n. o. v. on appeal,” 386 U. S., at 322,
8 UNITHERM FOOD SYSTEMS, INC. v. SWIFT-ECKRICH, INC.
Opinion of the Court
Despite the straightforward language employed in Cone,
Globe Liquor, and Johnson, respondent maintains that
those cases dictate affirmance here, because in each of
those cases the litigants secured a new trial. But in each
of those cases the appellants moved for a new trial post-
verdict in the District Court, and did not seek to establish
their entitlement to a new trial solely on the basis of a
denied Rule 50(a) motion. See Cone, supra, at 213 (noting
that respondent moved for a new trial);5 Globe Liquor, 332
——————
but nonetheless reaffirmed that Cone, Globe Liquor, and Johnson
“make it clear that an appellate court may not order judgment n. o. v.
where the verdict loser has failed to strictly comply with the procedural
requirements of Rule 50(b).” 386 U. S., at 325. Contrary to the dis-
sent’s suggestion, Neely confirms that the broad grant of authority to
the Courts of Appeals in §2106 must be exercised consistent with the
requirements of the Federal Rules of Civil Procedure as interpreted by
this Court.
The dissent’s approach is not only foreclosed by authority of this
Court, it also may present Seventh Amendment concerns. The implica-
tion of the dissent’s interpretation of §2106 is that a court of appeals
would be free to examine the sufficiency of the evidence regardless of
whether the appellant had filed a Rule 50(a) motion in the district court
and, in the event the appellant had filed a Rule 50(a) motion, regard-
less of whether the district court had ever ruled on that motion. The
former is squarely foreclosed by Slocum v. New York Life Ins. Co., 228
U. S. 364 (1913), and the latter is inconsistent with this Court’s explana-
tion of the requirements of the Seventh Amendment in Baltimore &
Carolina Line, Inc. v. Redman, 295 U. S. 654, 658 (1935) (explaining that
“under the pertinent rules of the common law the court of appeals could
set aside the verdict for error of law, such as the trial court’s ruling
respecting the sufficiency of the evidence, and direct a new trial, but could
not itself determine the issues of fact and direct a judgment for the
defendant, for this would cut off the plaintiff’s unwaived right to have the
issues of fact determined by a jury” (emphasis added)). Indeed, Rule 50
was drafted with such concerns in mind. See 9A C. Wright & A. Miller,
Federal Practice and Procedure §2522, pp. 244–246 (2d ed. 1995) (herein-
after Federal Practice).
5 While the precise nature of the new trial motion at issue in Cone is
difficult to ascertain from this Court’s description of that motion, the
Court of Appeals opinion in that case confirms that the movant had
properly objected to the admission of certain evidence, and then moved
Cite as: 546 U. S. ____ (2006) 9
Opinion of the Court
U. S., at 572 (“The respondents . . . moved for a new trial
on the ground . . . that there were many contested issues
of fact”). Indeed, Johnson concluded that respondent was
only entitled to a new trial by virtue of its motion for such
“within the time required by Rule 50(b).” 344 U. S., at 54.
Accordingly, these outcomes merely underscore our hold-
ing today—a party is not entitled to pursue a new trial on
appeal unless that party makes an appropriate postverdict
motion in the district court.
Our determination that respondent’s failure to comply
with Rule 50(b) forecloses its challenge to the sufficiency of
the evidence is further validated by the purported basis of
respondent’s appeal, namely the District Court’s denial of
respondent’s preverdict Rule 50(a) motion. As an initial
matter, Cone, Globe Liquor, and Johnson unequivocally
establish that the precise subject matter of a party’s Rule
50(a) motion—namely, its entitlement to judgment as a
matter of law—cannot be appealed unless that motion is
renewed pursuant to Rule 50(b). Here, respondent does
not seek to pursue on appeal the precise claim it raised in
its Rule 50(a) motion before the District Court—namely,
its entitlement to judgment as a matter of law. Rather, it
seeks a new trial based on the legal insufficiency of the
evidence. But if, as in Cone, Globe Liquor, and Johnson, a
litigant that has failed to file a Rule 50(b) motion is fore-
closed from seeking the relief it sought in its Rule 50(a)
motion—i.e., the entry of judgment—then surely respon-
dent is foreclosed from seeking a new trial, relief it did not
and could not seek in its preverdict motion. In short,
——————
postverdict “for a new trial [on the basis of the inadmissible evidence]
and later renewed this motion upon the basis of newly-discovered
evidence.” West Virginia Pulp & Paper Co. v. Cone, 153 F. 2d 576, 580
(CA4 1946). This Court did not disturb the Court of Appeals holding
that formed the basis of the movant’s entitlement to a new trial,
namely “the Circuit Court of Appeals’ holding that there was prejudi-
cial error in the admission of evidence.” 330 U. S., at 215.
10 UNITHERM FOOD SYSTEMS, INC. v. SWIFT-ECKRICH, INC.
Opinion of the Court
respondent never sought a new trial before the District
Court, and thus forfeited its right to do so on appeal.
Yakus v. United States, 321 U. S. 414, 444 (1944) (“No
procedural principle is more familiar to this Court than
that a . . . right may be forfeited . . . by the failure to make
timely assertion of the right before a tribunal having
jurisdiction to determine it”).
The text of Rule 50(b) confirms that respondent’s pre-
verdict Rule 50(a) motion did not present the District
Court with the option of ordering a new trial. That text
provides that a district court may only order a new trial on
the basis of issues raised in a preverdict Rule 50(a) motion
when “ruling on a renewed motion” under Rule 50(b).
Accordingly, even if the District Court was inclined to
grant a new trial on the basis of arguments raised in
respondent’s preverdict motion, it was without the power
to do so under Rule 50(b) absent a postverdict motion
pursuant to that Rule. Consequently, the Court of Ap-
peals was similarly powerless.
Similarly, the text and application of Rule 50(a) support
our determination that respondent may not challenge the
sufficiency of the evidence on appeal on the basis of the
District Court’s denial of its Rule 50(a) motion. The Rule
provides that “the court may determine” that “there is no
legally sufficient evidentiary basis for a reasonable jury to
find for [a] party on [a given] issue,” and “may grant a
motion for judgment as a matter of law against that party
. . . .” (Emphasis added.) Thus, while a district court is
permitted to enter judgment as a matter of law when it
concludes that the evidence is legally insufficient, it is not
required to do so. To the contrary, the district courts are,
if anything, encouraged to submit the case to the jury,
rather than granting such motions. As Wright and Miller
explain:
“Even at the close of all the evidence it may be de-
Cite as: 546 U. S. ____ (2006) 11
Opinion of the Court
sirable to refrain from granting a motion for judgment
as a matter of law despite the fact that it would be
possible for the district court to do so. If judgment as
a matter of law is granted and the appellate court
holds that the evidence in fact was sufficient to go to
the jury, an entire new trial must be had. If, on the
other hand, the trial court submits the case to the
jury, though it thinks the evidence insufficient, final
determination of the case is expedited greatly. If the
jury agrees with the court’s appraisal of the evidence,
and returns a verdict for the party who moved for
judgment as a matter of law, the case is at an end. If
the jury brings in a different verdict, the trial court
can grant a renewed motion for judgment as a matter
of law. Then if the appellate court holds that the trial
court was in error in is appraisal of the evidence, it
can reverse and order judgment on the verdict of the
jury, without any need for a new trial. For this reason
the appellate courts repeatedly have said that it usu-
ally is desirable to take a verdict, and then pass on
the sufficiency of the evidence on a post-verdict mo-
tion.” 9A Federal Practice §2533, at 319 (footnote
omitted).
Thus, the District Court’s denial of respondent’s preverdict
motion cannot form the basis of respondent’s appeal,
because the denial of that motion was not error. It was
merely an exercise of the District Court’s discretion, in
accordance with the text of the Rule and the accepted
practice of permitting the jury to make an initial judgment
about the sufficiency of the evidence. The only error here
was counsel’s failure to file a postverdict motion pursuant
to Rule 50(b).6
——————
6 Respondent claims that its failure to renew its Rule 50(a) motion
was in reliance on the Tenth Circuit’s determination that it could order
a new trial in the absence of a Rule 50(b) motion. But respondent
12 UNITHERM FOOD SYSTEMS, INC. v. SWIFT-ECKRICH, INC.
Opinion of the Court
* * *
For the foregoing reasons, we hold that since respondent
failed to renew its preverdict motion as specified in Rule
50(b), there was no basis for review of respondent’s suffi-
ciency of the evidence challenge in the Court of Appeals.
The judgment of the Court of Appeals is reversed.7
It is so ordered.
——————
cannot credibly maintain that it wanted the Court of Appeals to order a
new trial as opposed to entering judgment. And, as the Tenth Circuit
has recognized, respondent could not obtain the entry of judgment
unless it complied with Rule 50(b). Cummings v. General Motors Corp.,
365 F. 3d 944, 951 (2004). Respondent therefore had every incentive to
comply with that Rule’s requirements. Accordingly, we reject its
contention that our application of Rule 50(b) to the instant case is
impermissibly retroactive. See also Harper v. Virginia Dept. of Taxation,
509 U. S. 86, 97 (1993) (“[W]e can scarcely permit the substantive law to
shift and spring according to the particular equities of individual parties’
claims of actual reliance on an old rule and of harm from a retroactive
application of the new rule” (internal quotation marks and brackets
omitted)).
7 We reject respondent’s contention that it is entitled to a remand for
reconsideration in light of Phillips v. AWH Corp., 415 F. 3d 1303 (CA
Fed. 2005). The Federal Circuit has already denied respondent’s
petition for rehearing raising this issue.
Cite as: 546 U. S. ____ (2006) 1
STEVENS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 04–597
_________________
UNITHERM FOOD SYSTEMS, INC., PETITIONER v.
SWIFT-ECKRICH, INC., DBA CONAGRA
REFRIGERATED FOODS
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FEDERAL CIRCUIT
[January 23, 2006]
JUSTICE STEVENS, with whom JUSTICE KENNEDY joins,
dissenting.
Murphy’s law applies to trial lawyers as well as pilots.
Even an expert will occasionally blunder. For that reason
Congress has preserved the federal appeals courts’ power
to correct plain error, even though trial counsel’s omission
will ordinarily give rise to a binding waiver. This is not a
case, in my view, in which the authority of the appellate
court is limited by an explicit statute or controlling rule.
The spirit of the Federal Rules of Civil Procedure favors
preservation of a court’s power to avoid manifestly unjust
results in exceptional cases. See Johnson v. New York, N.
H. & H. R. Co., 344 U. S. 48, 62 (1952) (Frankfurter, J.,
dissenting) (“ ‘Procedure is the means; full, equal and exact
enforcement of substantive law is the end’ ” (quoting Pound,
The Etiquette of Justice, 3 Proceedings Neb. St. Bar Assn.
231 (1909))). Moreover, we have an overriding duty to
obey statutory commands that unambiguously express the
intent of Congress even in areas such as procedure in
which we may have special expertise.
Today, relying primarily on a case decided in March
1947, Cone v. West Virginia Pulp & Paper Co., 330 U. S.
212, and a case decided in January 1948, Globe Liquor Co.
v. San Roman, 332 U. S. 571, the Court holds that the
2 UNITHERM FOOD SYSTEMS, INC. v. SWIFT-ECKRICH, INC.
STEVENS, J., dissenting
Court of Appeals was “powerless” to review the sufficiency
of the evidence supporting the verdict in petitioner’s favor
because respondent failed to file proper postverdict mo-
tions pursuant to Rules 50(b) and 59 of the Federal Rules
of Civil Procedure in the trial court. Ante, at 10. The
majority’s holding is inconsistent with a statute enacted
just months after Globe Liquor was decided. That statute,
which remains in effect today, provides:
“The Supreme Court or any other court of appellate
jurisdiction may affirm, modify, vacate, set aside or
reverse any judgment, decree, or order of a court law-
fully brought before it for review, and may remand the
cause and direct the entry of such appropriate judg-
ment, decree, or order, or require such further pro-
ceedings to be had as may be just under the circum-
stances.” 28 U. S. C. §2106.
Nothing in Rule 50(b) limits this statutory grant of
power to appellate courts; while a party’s failure to make a
Rule 50(b) motion precludes the district court from direct-
ing a verdict in that party’s favor, the Rule does not pur-
port to strip the courts of appeals of the authority to re-
view district court judgments or to order such relief as
“may be just under the circumstances.” Nor do general
principles of waiver or forfeiture have that effect. Cf. ante,
at 9–10. It is well settled that a litigant’s waiver or forfei-
ture of an argument does not, in the absence of a contrary
statutory command, preclude the courts of appeals from
considering those arguments. See Singleton v. Wulff, 428
U. S. 106, 121 (1976). Arguments raised for the first time on
appeal may be entertained, for example, if their considera-
tion would prevent manifest injustice. Ibid.*
——————
* The Court suggests that the Seventh Amendment limits appellate
courts’ power to review judgments under 28 U. S. C. §2106. See ante, at
7, n.4. I disagree with the Court’s analysis in two respects. First,
although the right to trial by jury might be implicated if no Rule 50(a)
motion had been made, such a motion was made in this case. The Rule
Cite as: 546 U. S. ____ (2006) 3
STEVENS, J., dissenting
For the reasons articulated by the Court in Cone, 330
U. S., at 216, it may be unfair or even an abuse of discre-
tion for a court of appeals to direct a verdict in favor of the
party that lost below if that party failed to make a timely
Rule 50(b) motion. Likewise, it may not be “just under the
circumstances” for a court of appeals to order a new trial
in the absence of a proper Rule 59 motion. Finally, a court
of appeals has discretion to rebuff, on grounds of waiver or
forfeiture, a challenge to the sufficiency of the evidence
absent a proper Rule 50(b) or Rule 59 motion made in the
district court. None of the foregoing propositions rests,
however, on a determination that the courts of appeals
lack “power” to review the sufficiency of the evidence and
order appropriate relief under these circumstances, and I
can divine no basis for that determination.
I respectfully dissent.
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50(a) motion triggered the automatic reservation of “legal questions,”
Fed. Rule Civ. Proc. 50(b), and that reservation, in turn, averted any
Seventh Amendment problem, see Baltimore & Carolina Line, Inc. v.
Redman, 295 U. S. 654 (1935). Second, the Seventh Amendment imposes
no greater restriction on appellate courts than it does on district courts in
these circumstances; “[a]s far as the Seventh Amendment’s right to jury
trial is concerned, there is no greater restriction on the province of the jury
when an appellate court enters judgment n. o. v. than when a trial court
does.” Neely v. Martin K. Eby Constr. Co., 386 U. S. 317, 322 (1967).