Ordinarily, a party cannot appeal a denial of summary judgment after trial has taken place, unless the arguments were renewed in a motion for judgment as a matter of law under Federal Rule of Civil Procedure 50. A growing majority of appellate courts, however, has carved out an exception to this general rule allowing appeals of summary judgment denials based on “purely legal” arguments even if they were not raised again at trial in Rule 50 motions. Other courts, however, continue to adhere strictly to the rule, declining to review after trial any summary judgment denials, whether the decision was fact-based or a question of law. The U.S. Supreme Court has dodged the issue, leaving the circuit split in place.
The general rule. Denials of summary judgment generally cannot be appealed after a full trial on the merits. The reason is straightforward enough. On summary judgment the court decides only whether entry of judgment is warranted based on the undisputed, material facts before the court at that time; a denial does nothing more than allow a contested issue to be resolved at trial. Once a trial has taken place, the “focus is on the evidence actually admitted and not on the earlier summary judgment record.” Chemetall GmbH v. ZR Energy Inc., 320 F.3d 714, 718 (7th Cir. 2003). Therefore, to preserve an argument for appeal based on the sufficiency of the evidence, a party must raise the challenge in a Rule 50(a) motion before the case is submitted to the jury and, if unsuccessful, renew the motion under Rule 50(b) after the verdict. What is appealable at that point is the denial of the party’s motion for judgment under Rule 50, not the earlier denial of summary judgment.
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