Law Practice
Jul. 20, 2002
After the Verdict
Column by John F. Libby and Jonathan M. Eisenberg - The most potent post-trial motion in federal court is the motion for judgment as a matter of law, which can lead to a reversal of a jury's verdict and entry of judgment, or partial judgment, in the losing party's favor.
The most potent post-trial motion in federal court is the motion for judgment as a matter of law, which can lead to a reversal of a jury's verdict and entry of judgment, or partial judgment, in the losing party's favor.
Bringing such a motion successfully is difficult, however, because the moving party must demonstrate that the verdict cannot be supported by the evidence. In addition, the court will consider all reasonable inferences from the evidence that favor the nonmoving party, but will disregard much evidence favoring the moving party.
Recent decisions from the U.S. Supreme Court and the 9th U.S. Circuit Court of Appeals attempting to apply the legal standard for judgment-as-a-matter-of-law motions - previously called JNOV, for judgment notwithstanding the verdict - illustrate these difficulties.
A motion for judgment as a matter of law functions much like a motion for summary judgment.
In a federal jury trial, before a verdict, if one "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 the issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable ruling on that issue.
"Such a motion shall specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment." Federal Rule of Civil Procedure 50(a)(1) and (2).
A party seeking a judgment as a matter of law after the jury reaches its verdict must have made a Rule 50(a) motion before or at the close of all the evidence.
"If, for any reason, the court does not grant a motion for judgment as a matter of law 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 deciding the legal questions raised by the motion." See Rule 50(b). '
The moving party may renew the motion by filing another motion no later than 10 days after entry of judgment, and may alternatively request a new trial or jointly request a judgment as a matter of law and a new trial.
Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133 (2000), clarified the legal standard for a judgment as a matter of law both pre- and post-verdict.
The questions to be answered are whether, prior to the jury verdict, and under Rule 50(a), there is sufficient evidence to submit an issue to the jury; and, after the jury has reached a verdict, and under Rule 50(b), sufficient evidence supports the verdict.
"[T]he standard for granting summary judgment mirrors the standard for judgment as a matter of law," wrote the Reeves court, "such that the inquiry under each is the same. ... [I]n entertaining a motion for judgment as a matter of law, the court should review all evidence in the record. ... [H]owever, the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence."
According to Reeves, "the court ... must disregard all evidence favorable to the moving party that the jury is not required to believe. That is, the court should give credence to the evidence favoring the nonmovant as well as that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that evidence comes from a disinterested witness." The moving party has a heavy burden to bear before a jury's decision will be overturned.
Reeves' application of this standard to the facts of the case is also instructive. Plaintiff-appellant Roger Reeves, 57 years old, worked 40 years for defendant-respondent Sanderson Plumbing but was fired because of timekeeping errors and misrepresentations of employees he and 35-year-old Joe Oswalt directly supervised.
Sanderson Plumbing did not terminate Oswalt. Reeves sued Sanderson Plumbing for age discrimination.
At trial, Reeves introduced evidence - which Oswalt corroborated - that Powe Chestnut, the director of manufacturing and spouse of the company president, made derogatory, age-based comments to Reeves (e.g., Reeves "was too damn old to do [his] job") and treated Reeves contemptuously while tolerating Oswalt's defiant behavior.
Reeves offered evidence to show that Chestnut "was the actual decisionmaker behind" the termination; Oswalt acknowledged that Chestnut had "absolute power" within the company.
The jury returned a verdict in Reeves' favor, and the trial judge denied Sanderson Plumbing's motion for JMOL. On appeal, the 5th Circuit granted Sanderson Plumbing's motion.
The Supreme Court unanimously reversed, criticizing the 5th Circuit for "disregard[ing] critical evidence favorable to petitioner - namely, the evidence supporting petitioner's prima facie case and undermining respondent's nondiscriminatory explanation. The court also failed to draw all reasonable inferences in favor of petitioner."
In particular, the 5th Circuit improperly discounted Chestnut's derogatory comments to Reeves on the seemingly narrow ground that the comments were not made in the direct context of Reeves' termination.
Also, the 5th Circuit incorrectly discredited the evidence of Chestnut's central role in the firing by observing that it did not appear that the other company decision makers were motivated by age prejudice.
Finally, the 5th Circuit placed undue emphasis on the fact that Oswalt and another employee were cited for poor record keeping, just as Reeves was, and that many Sanderson Plumbing managers were over age 50.
"In concluding that these circumstances so overwhelmed the evidence favoring petitioner that no rational trier of fact could have found that petitioner was fired because of his age," said the high court, "the Court of Appeals impermissibly substituted its judgment concerning the weight of this evidence for the jury's."
Following Reeves, in Johnson v. Paradise Valley Unified School District, 251 F.3d 1222 (9th Cir. 2001), the 9th Circuit reversed the trial court's grant of a judgment as a matter of law motion in a disability discrimination case.
Plaintiff-appellant Linda Johnson, who had worked for about 14 years as a custodian and groundskeeper for defendant-appellee Paradise Valley before suffering a severe on-the-job injury, claimed the district had forced her to resign and refused to consider rehiring her after she healed.
The trial court found that certain evidence "standing in isolation might be said to support an inference that [Teri] Traeen [Paradise Valley's director of employment] believed Johnson was disabled within the meaning of the [Americans with Disabilities Act]."
Yet the trial court reversed a jury verdict for Johnson because the "evidence is not such that reasonable people could find it adequate to support the conclusion that Traeen - and through her the District - regarded Johnson as disabled."
The 9th Circuit stated that Reeves and other authority "delineat[e] the trial judge's limited role in reviewing a jury's factual findings," and that "[s]ubstantial evidence is evidence adequate to support the jury's conclusion, even if it is also possible to draw a contrary conclusion from the same evidence."
Therefore "the district court's conclusion that 'standing in isolation' [the evidence before the jury] might be said to support an inference that Traeen believed Johnson was disabled ... should have ended the court's inquiry. That there was also evidence favorable to the District was simply not relevant, since the jury was free to disbelieve, and therefore to disregard, that evidence."
Thus, it did not matter that Johnson's evidence of disability discrimination "was far from overwhelming," as long as the jury's conclusion was supported by adequate evidence.
Recently, in Winarto v. Toshiba Amer. Electronic Components Inc., 274 F.3d 1276 (9th Cir. 2001), a three-judge panel could not agree on the correct application of the Reeves standard for a judgment as a matter of law, thereby revealing the difficulties for litigants making these motions and trial courts ruling on them.
Plaintiff-appellant Marjati Winarto, a woman of Indonesian ancestry employed by defendant-appellee Toshiba, claimed that, on the job, co-worker Ron Birtch verbally harassed Winarto, calling her a "lesbian" and "clueless," and repeatedly kicked her.
Winarto's supervisors and Toshiba's human resources department apparently did not take Winarto's complaints seriously. In addition, the supervisors gave Winarto relatively low job performance ratings.
When Winarto was laid off as part of a reduction in force, she sued on multiple theories of discrimination in employment and harassment. The jury's verdict in Winarto's favor on all claims was reversed by the trial court.
The 9th Circuit reinstated the verdict as to all claims but one. The majority labeled it error that the lower court, and the dissenting judge on the appellate court panel, found that Winarto's job performance ratings had been sufficiently verified as to constitute essentially unimpeachable evidence that Winarto deserved to be laid off, while disregarding evidence that reasonably implied the low scores were unfair - the result of resentment and retaliation because Winarto complained about harassment.
Notably, the majority observed twice that the dissenting position required the court to resolve direct conflicts in testimony, which is the function of the jury alone. The majority further found that "a reasonable jury" could infer animus from the evidence presented.
A heated dissent stated that the trial court had applied the standard for a judgment as a matter of law "exactly" correctly, and accused the majority of "indulging in its own speculation" about the evidence to "build a whole edifice of alleged harassment and retaliation."
The dissent claimed, for example, that it was uncontroverted that Winarto's written complaints to Toshiba's human resources department occurred after the lay-off decision had been made, so that decision could not have been retaliation.
It appears that the dissent is mistaken that there was no evidence of earlier complaints to human resources by Winarto, although the jury's special verdict form findings were arguably ambiguous as to which evidence the jury actually believed.
The Supreme Court and the 9th Circuit have set a high hurdle for a party bringing a motion for a judgment as a matter of law to clear. However, different federal judges, reviewing the same complex evidentiary record containing myriad ambiguities in the facts asserted, may apply the judgment as a matter of law standard quite differently.
As a result, courts probably will consider many future motions for judgment as a matter of law to be "close calls." Therefore, attorneys should be especially careful and meticulous in making and opposing these important motions.
John F. Libby is a partner and Jonathan M. Eisenberg an associate in Manatt, Phelps & Phillips' litigation and advocacy division in Los Angeles. Libby chairs the firm's California litigation practice.
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