Post-Trial Motions: No Rest for the Post-Trial Attorney

A party's case-in-chief is closed or a verdict has just been delivered, and now it's time for a variety of critically important post-trial motions to preserve a victory or overturn a defeat, or at least to preserve the right to appeal an issue that was just tried. This blog post discusses generally the types of motions a party should consider filing, and/or should expect to be filed against it.

Motion for Judgment as a Matter of Law ("JMOL"), aka Directed Verdict. A JMOL motion is technically not a post-trial motion, but it serves as a critical foundation for post-trial motions, which is why we cover it here. After a party has presented all of its evidence on an issue in a civil jury trial, but before the issue goes to the jury, the opposing party should move for JMOL under Federal Rule of Civil Procedure 50(a). This was formerly called a motion for a "directed verdict." The Court will grant JMOL if it determines that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue. If the Court grants JMOL, the issue is removed from the jury's consideration. Motions for JMOL are rarely granted but are critically important procedurally because they preserve a party's ability to move for Renewed JMOL after trial and, if necessary, for appeal.

Renewed JMOL, aka Judgment Notwithstanding the Verdict ("JNOV"). After a jury trial, a party may file a renewed motion for JMOL (formerly known as a "judgment notwithstanding the verdict" or "JNOV") under Federal Rule of Civil Procedure 50(b). As the name suggests, the standard for renewed JMOL is similar to the standard for a Rule 50(a) JMOL: a court may grant such a motion if it finds that no reasonable jury could have returned the verdict that was given. Importantly, a motion for renewed JMOL can only encompass issues raised during a previous motion for JMOL. Thus, if an issue was not raised in a party's Rule 50(a) motion for JMOL, then that issue will be deemed waived. For example, in one patent case, a defendant was deemed to have waived its obviousness defense because its JMOL motion only addressed the issues of inequitable conduct and anticipation.[1]

A motion for renewed JMOL must generally be filed no later than 28 days after entry of judgment.[2] On appeal, the Federal Circuit will review a district court's JMOL ruling under the appropriate standard for the regional circuit, which generally will require that the verdict be supported by substantial evidence, although questions of law are reviewed de novo.[3]

Motion for a New Trial. A party may also move for a new trial under Federal Rule of Civil Procedure 59. A motion for a new trial is typically made in the alternative to a request for a renewed JMOL, and ordinarily the requests are presented in a single motion. However, the scope of a Rule 59 motion is not limited by the scope of previous Rule 50(a) motions. The Federal Circuit has instructed that "a trial court should grant a motion for a new trial if (1) the jury instructions were erroneous or inadequate, (2) the court made incorrect and prejudicial admissibility rulings, or (3) the verdict is contrary to the great weight of the evidence."[4] As with a motion for renewed JMOL, a motion for a new trial generally must be filed no later than 28 days after entry of judgment.[5] The denial of a motion for a new trial is reviewed for abuse of discretion.[6]

Remittitur. Sometimes a court will determine that the amount of damages awarded by a jury is excessive in light of the evidence presented at trial and a remittitur is issued. In such situations, in lieu of a new trial, a court may allow the plaintiff the option of agreeing to a reduced damages award in a specified amount (also known as a "remittitur").[7] The Federal Circuit follows the "maximum recovery rule," which calculates the amount to remit based on the highest amount of damages that the jury could properly have awarded based on the relevant evidence.[8] A district court's denial of a motion for remittitur is reviewed for an abuse of discretion.[9]

Motion for Relief from Judgment. After trial, a party may also move for relief from judgment under Federal Rule of Civil Procedure 60. Upon such a motion, the court may relieve a party from a final judgment or order for a variety of reasons, including: "mistake, inadvertence, surprise, or excusable neglect; newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); [and] fraud..., misrepresentation, or misconduct by an opposing party," among other reasons.[10] A motion under Rule 60 must be made within a "reasonable time," and for most issues must be filed no more than a year after entry of judgment.[11] The Federal Circuit reviews a district court's denial of a Rule 60 motion according to the law of the regional circuit, which is generally review for abuse of discretion.[12]

Motion for Attorneys' Fees. When the Court deems a patent case to be "exceptional," the court may award reasonable attorney fees to the prevailing party.[13] An exceptional case "is simply one that stands out from others with respect to the substantive strength of a party's litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated."[14] A prevailing party typically also requests costs, which are generally available under Federal Rule of Civil Procedure 54(d). A motion for attorney fees must be filed no later than 14 days after entry of final judgment pursuant to Federal Rule of Civil Procedure 54(d)(2); notably, a judgment is generally not final until merits-based post-trial motions are resolved.[15] The Federal Circuit reviews a district court's attorney fees determination for abuse of discretion.[16]

Motion to Stay. Finally, a defendant who has lost at trial should be sure to take action pursuant to Federal Rule of Civil Procedure 62 in order to prevent the execution of judgment until after appeal. In particular, the defendant may obtain a stay of proceedings to enforce the judgment by providing a bond or other security.[17]

More questions? Contact the authors or visitFish's Intellectual Property Law Essentials.

[1] Duro-Last, Inc. v. Custom Seal, Inc., 321 F.3d 1098, 1108 (Fed. Cir. 2003).

[2] Fed. R. Civ. P. 50(b).

[3] See, e.g., Mirror Worlds, LLC v. Apple Inc., 692 F.3d 1351, 1357 (Fed. Cir. 2012); WBIP, LLC v. Kohler Co., 829 F.3d 1317, 1326 (Fed. Cir. 2016).

[4] Chiron Corp. v. Genentech, Inc., 363 F.3d 1247, 1258 (Fed. Cir. 2004).

[5] Fed. R. Civ. P. 50(b).

[6] See, e.g., Chiron Corp. v. Genentech, Inc., 363 F.3d 1247, 1258 (Fed. Cir. 2004).

[7] See, e.g., Oiness v. Walgreen Co., 88 F.3d 1025, 1030 (Fed. Cir. 1996).

[8] See, e.g., Unisplay, S.A. v. Am. Elec. Sign Co., 69 F.3d 512, 519 (Fed. Cir. 1995).

[9] See, e.g., Oiness v. Walgreen Co., 88 F.3d 1025, 1029 (Fed. Cir. 1996).

[10] Fed. R. Civ. P. 60.

[11] Id.

[12] See, e.g., CEATS, Inc. v. Cont'l Airlines, Inc., 755 F.3d 1356, 1360 (Fed. Cir. 2014).

[13] 35 U.S.C.A. 285; Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 548 (2014).

[14] Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 554 (2014).

[15] See IPXL Holdings, L.L.C. v. Amazon.com, Inc., 430 F.3d 1377, 1386 (Fed. Cir. 2005); Moore's AnswerGuide: Federal Civil Motion Practice 12.47 (2020).

[16] Highmark Inc. v. Allcare Health Mgmt. Sys., 572 U.S. 559, 561 (2014).

[17] Fed. R. Civ. P. 62(a).