When can a discovery order be appealed?
Juneteenth 2023

Preserving denial of summary judgment in federal court

Let’s say you represent a defendant in federal court. You file a motion for summary judgment, which is denied (erroneously, in your opinion). You proceed to trial and lose. To preserve for appeal the denial of summary judgment, do you have to re-urge the issue via a post-trial motion for judgment as a matter of law under Fed. R. Civ. P. 50?

Last month, the U.S. Supreme Court answered that question, making a distinction between motions involving factual issues and those involving purely legal issues. Dupree v. Younger, No. 22-210 (May 25, 2023).

If the summary-judgment motion depends on facts developed in discovery, then the losing party must re-urge the issue after trial through a post-judgment motion under Rule 50. The rationale is that the facts developed pre-trial (e.g. in depositions, affidavits, admissions, etc.) are superseded by the facts developed at trial. "So after trial,” the Supreme Court explained, “a district court's assessment of the facts based on the summary-judgment record becomes ancient history and is not subject to appeal." Slip op. at 5 (cleaned up). Thus, to be preserved for appeal, the issue must be re-urged in a Rule 50 motion, with the trial record superseding the summary-judgment record.

On the other hand, if the issue raised in the summary-judgment motion is “purely legal,” meaning that it “can be resolved without reference to any disputed facts,” then there is no need to re-urge the issue in a Rule 50 motion to preserve it for appeal.  Id. at 6. The rationale is that, unlike the factual record, the law is the same after trial as it is before. Writing for the Court, Justiice Barrett explained the difference:

[A]n appellate court’s review of factual challenges after a trial is rooted in the complete trial record, which means that a district court’s factual rulings based on the obsolete summary-judgment record are useless. A district court’s resolution of a pure question of law, by contrast, is unaffected by future developments in the case. From the reviewing court’s perspective, ther is no benefit to having a district court reexamine a purely legal issue after trial, because nothing at trial will have given the district court any reason to question its prior analysis. We therefore hold that a post-trial motion under Rule 50 is not required to preserve for appellate review a purely legal issue resolved at summary judgment.
[Slip op. at 6.]


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