Due to conflicting panel opinions, the Eighth Circuit was originally identified as a circuit with an unclear position on whether purely legal arguments denied at summary judgment must be re-raised in a Rule 50 motion for preservation purposes. However, the Eighth Circuit has recently issued a decision indicating that it now falls squarely within the minority camp. See Lopez v. Tyson Foods, Inc., 690 F.3d 869, 875 (8th Cir. 2012).
Although acknowledging the conflicting panel opinions on the issue, the court ultimately relied on the principle that the earliest panel opinion must be followed, as it should have controlled subsequent panels. Thus, the Eighth Circuit followed Metropolitan Life Insurance Co. v. Golden Triangle, 121 F.3d 351 (8th Cir. 1997), in holding that “[a] denial of summary judgment is not appealable after a final judgment regardless of whether the issue is factual or ‘purely legal.’” Lopez, 690 F.3d at 875. Practitioners in the Eighth Circuit should therefore re-raise both legal and factual issues in a Rule 50 motion to preserve them for appeal.
Keywords: litigation, appellate practice, error preservation, summary judgment, Rule 50, purely legal argument
Kelli Benham Bills is an associate with Haynes and Boone LLP in Dallas, Texas.
Copyright © 2013, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).