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September 30, 2013 Articles

UPDATE: Rule 50 and Purely Legal Arguments: A Circuit Split

The Eighth Circuit clarifies its position.

By Kelli Benham Bills

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.

Read the original article.

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.

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