The bar exam, and so the saying goes, is like fording a river that is a mile wide but but an inch deep.  Cliché though it may exist, the analogy serves as a useful reminder that the exam tests candidates largely on settled, blackness-alphabetic character police rather than novel questions typical of police force school exams.  Most readers, I assume, will accept had at least one experience preparing for and taking the bar exam, and most, I farther assume, volition have at to the lowest degree i line of questioning forever burned into their brains, regardless of utility to later practise.  For me, that line of questioning is ceremonious process, and more specifically, judgment as a affair of law ("JMOL").  Lest I exist tempted to believe I latched onto this dominion considering I'yard a litigator, the reality is I remember the dominion because information technology's then unproblematic: if y'all fail to move for JMOL before the case is submitted to the jury, you tin't brand a renewed JMOL motion afterward a verdict has been rendered.  Simple.  Settled.  And an inch-deep.

I was therefore surprised to learn that the Sixth Circuit had never expressly decided the question—i.eastward., whether a party tin make a renewed movement for JMOL under FRCP 50(b) if it has not made a pre-verdict JMOL motility under FRCP 50(a).  In Hanover American Insurance Co. v. Tattooed Millionaire Entertainment, the Sixth Excursion linked arms with its sister circuits and held, unequivocally (and to the great relief of bar review courses everywhere), "no."

Unusual Procedural Posture

Tattooed Millionaire arises from insurance fraud for ostensible arson, break-in, and vandalism of the historic House of Blues music studio in Memphis, Tennessee.  Chris Dark-brown, possessor of Tattooed Millionaire Entertainment production company and the House of Blues, along with studio lessees John Falls and Daniel Mott, filed an approximate $ten.v one thousand thousand claim with Hanover Insurance for property impairment and theft extending from a November 5, 2015 intermission-in at the studio.  Hanover'south investigation revealed that the receipts on which the insurance claims were based were fraudulent, and that Dark-brown had been the "unfortunate victim" of three remarkably similar arson events in just four years, each leading to insurance claims for lost musical equipment.

At trial, the jury found that Brown and Mott had made cloth misrepresentations to Hanover and were liable for insurance fraud.  Falls, on the other mitt, was different.  Rather than faulting Falls for insurance fraud, the jury institute Hanover had breached its contract with Falls, who was entitled to recover his policy limits of $3 million for business property and income losses.  Following the jury verdict, Hanover filed a motion under FRCP fifty(b) for renewed JMOL as to Falls.  Nonetheless Falls' argument that Hanover forfeited renewed JMOL by declining to first move for JMOL under FRCP fifty(a), the commune court granted Hanover'southward Rule 50(b) motility, turning the tables on Falls who now owed Hanover $250,000 in repayment for the insurance advance he received earlier trial.

On appeal, Hanover argued that information technology had, in fact, made a Rule 50(a) motility "considering earlier the instance was submitted to the jury, all parties agreed on the tape, with the district  courtroom'due south approving, to reserve and preserve all Dominion 50 motions."  Put differently, Hanover argued that it either made a Rule 50(a) move or the district court accounted such a motility to have been made, and the 6th Circuit ought to hold such a ruling sufficient to satisfy the strictures of Rule 50.  To be sure, the district court sent "mixed signals" to the parties as to when and even whether they should actually make Rule 50(a) motions, or "simply be taken as a given" that such motions were deemed to accept been made.  Nevertheless, Hanover made a proper Rule 50(a) motion every bit to Tattooed Millionaire Enterprise and Brown, but, curiously, not as to Falls.

6th Excursion Establishes Bright-Line Rule

The Sixth Circuit console in Tattooed Millionaire (Boggs, J., Guy & White, J.J.) left no dubiousness that failure to make a pre-verdict Rule 50(a) motion irredeemably precludes a post-verdict Rule 50(b) move.  Starting time, the court was persuaded that Hanover'south Rule 50(a) motion equally to Chocolate-brown and Tattooed Millionaire Enterprise, simply not Falls, showed that Hanover understood the commune court's signals to mean an actual, non deemed, Dominion l(a) motion was needed to preserve a Rule 50(b) motion post-verdict.

Second, the panel made clear that fifty-fifty if the district court believed it could simply "deem" Rule 50(a) motions made as if on the record, it has no ability to do and so.  Turning to the text of Rule 50(a), the court stressed that such a movement "must specify the judgment sought and the police and facts that entitled the movant to the judgment." The court explained that Rule fifty(a)'s specificity requirement is rooted in the 7th Subpoena'south jury right (too as basic fairness), and "informs the opposing political party of the challenge to the sufficiency of the testify and affords a clear opportunity to provide additional evidence that may be bachelor" before the case is submitted to a jury.

Third, the court's holding is a clear admonition to litigants that when a rule is articulate—as is Rule 50(b)'s prerequisite that a l(a) motility have been fabricated—ambiguity from the bench volition non salvage a party from failure to comply with a rule'due south apparently requirements.  Agreeing with the Ninth Excursion in Tortu v. Las Vegas Metropolitan Police Department, the 6th Circuit panel constitute "meritless" the argument that ambiguous statements from the commune court could "absolve" a litigant of their procedural obligations nether the articulate requirements of Rule 50.

Finally, the courtroom rejected Hanover'south policy arguments that courts should entertain a Dominion fifty(b) movement in the absence of a preceding fifty(a) motion if the 50(b) motion raises only pure questions of law.  The courtroom explained that such policy arguments, while "not without some merit," fail because: (1) it goes against the plain meaning of the Rule (and the explicit instructions in the Notes to the Rule); (ii) information technology presents a constitutional issue nether the Seventh Subpoena's guaranty of a jury trial in ceremonious suits because Rule 50(a) "requir[es] that parties enhance important problems earlier the case is submitted to the jury"; (3) it creates perverse incentives to "sandbag" legal arguments rather than "lay ane's cards on the table and enable[] the other side to counter them"; and (4) it would be incongruous for the court to prohibit a Rule l(b) movement from proceeding because it was too different from the litigant'due south Rule 50(a) motion (as the court held in Ford five. Cnty. of Chiliad Traverse, 535 F.3d 483 (6th Cir. 2008)), simply then say it would be happy to hear a Rule 50(b) motion when the litigant made no Dominion 50(a) motion at all.

In sum, a litigant cannot make a Dominion fifty(b) motion if it has not previously made a Dominion l(a) motility.  Full terminate.