Civil Procedure


Resolution Short of Trial - Motion for Summary Judgment

FRCP 56(c) provides that summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions together with affidavitsshow that there is no genuine issue as to any material fact.  Therule requires the opposing party to present some evidence which supportsthe bald assertion that there is a dispute.  A party may not restupon the mere allegations or denials of his pleading.  Where a partypresents evidence on which, taken by itself, it would be entitled to a directed verdict, it rests upon the opposing party to specify some opposing evidence which it can adduce which would change the result.

In federal court the burden of proof on summary judgment is the same as the burden of proof at trial.  (Celotex Corp. v. Catrett, 477 U.S. 317 (1986) This is in contrast to California procedure where the burden of proof on summary judgment is always on the party moving for summary judgment. (See, Cal.Code.Civ.Proc. § 437c)

Partial Summary Judgment (summary adjudication of issues)  Rule 56(d) provides that in circumstances in which summary judgment cannot be granted on the entire action, the court at least may withdraw from trial those aspects of the case that are established in the summary judgment proceeding.

Choosing the Trier of Fact:  Judge or Jury?

The Constitutional Standard

The right to a jury trial is founded in the Seventh Amendment.  That amendment does not "create" the right to a trial by jury.  Rather  it "preserves" the right as it existed at common law in 1791 the date of the Seventh Amendment's ratification.  By "common law" the framers of the Constitution meant, suits in which legal rights were to be ascertained and determined in contrast to those where equitable rights alone were recognized and equitable remedies were administered.  (Parsons v. Bedford  7 L.3d. 732, 737 (1830).)  Hence, under the old system of separate courts for law and equity, the right to a jury trial only existed for actions at law.  There was no right to a jury trial for actions brought in equity.

Although the Federal Rules abolish the procedural distinctions between law and equity and substitute a single form of action, they do not abrogate the differences between the substantive and remedial rules of the two systems.  Since a party may now enter a single court with both legal and equitable claims the question recurs as to when there is a right to a jury trial.

Under the Federal Rules the same court may try both legal and equitable causes in the same action.  When one or more issues common to both legal and equitable claims exist, the legal claim should be tried first, in order to avoid depriving the party of a determination by a jury on the common issue.   I.e., it is the issue to be adjudicated, not the underlying nature of the case, that is determinative of the right to jury trial.  (Beacon Theatres, Inc. v. Westover, 359 U.S. 500 (1959)

To determine whether a statutory action is more similar to cases that were tried in courts of law than to suits tried in courts of equity, the Court must examine both the nature of the action and of the remedy sought.  (Tull v. United States, 481 U.S. 412 (1987)

Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962)  shortly followed Beacon.  It involved a licensing agreement for the trademark "Dairy Queen."  Plaintiff sued for a breach of contract seeking injunctions restraining defendant from further use of the name and an accounting to determine the exact sum owed the plaintiff.  The trial court struck the defendant's demand for a jury trial.  The Supreme Court reversed, it reasoned that the accounting claim was merely a disguise for a damage claim. 

Ross v. Bernhard, 396 U.S. 531 (1970) extended the Beacon-Dairy Queen doctrine to stockholder derivative suits, which traditionally had been the exclusive province of equity.  The Court ruled "the right of jury trial attaches to those issues in derivative actions as to which the corporation if it had been suing in its own right, would have been entitled to a jury."

Although the thrust of the 7th Amendment was to preserve the right to jury trial as it existed in 1791, it has long been settled that the right extends beyond the common-law forms of action recognized at that time.  By common law the Framers meant not merely suits, which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined.  The 7th Amendment does apply to actions enforcing statutory rights, and requires a jury trial upon demand, if the statute creates legal rights and remedies, enforceable in an action for damages in the ordinary courts of law.  When Congress provides for enforcement of statutory rights in an ordinary civil action there is no functional justification for denying the jury trial right, a jury trial must be available if the action involves rights and remedies of the sort typically enforced in an action at law.  Hence,  a right to a jury trial is not restricted to those common law actions that actually existed in 1791.  (Curtis v. Loether, 415 U.S. 189 (1974)

Number of Jurors Required

Does a jury of six persons and a less than unanimous verdict violate the 7th amendment?  In Williams v. Florida 399 U.S. 78 (1970) the Court held that a state might constitutionally use a jury of six in a criminal case.  Seizing upon the holding in Williams and transferring it to the civil jury guarantee of the 7th Amendment, numerous federal district courts through their FRCP 83 power to make local rules have provided that ordinary civil actions shall be tried by six member juries only.  "By referring to the 'common law,' the Framers of the 7th Amendment were concerned with preserving the right of a trial by jury in civil cases where it existed at common law, rather than the various incidents of trial by jury."  (Colgrove v. Battin  413 U.S. 149 (1973)

Judicial Control of Jury Action - Controlling Juries by Directed Verdict - Burden of Production

FRCP 50 provides that a party may move for judgment as a matter of law. A Rule 50 motion was formerly known by the terms directed verdict and judgment notwithstanding the verdict. Directed verdicts and judgment notwithstanding the verdict (JNOV) are two mechanisms by which the judge controls the jury.  Directed verdict motions may be made by either party at the close of their opponent's evidence.  For the motion to be granted the court must find that there is insufficient evidence to go to the jury or that the evidence is so compelling that only one result could follow.  A JNOV motion may be viewed as a delayed directed verdict because it is made after the verdict is rendered and seeks a judgment contrary to the verdict on the ground that there was insufficient evidence for the jury to find as it did.  (Friedenthal § 12.3)

The test for granting a j.n.o.v. is the same as the test for granting a directed verdict.  The court considers the evidence in the light most favorable to the non-moving party and should grant the judgment notwithstanding the verdict only where the evidence so strongly and so favorably points in the favor of the moving party that reasonable people could not arrive at a contrary verdict.

When the evidence tends equally to sustain either of two inconsistent propositions, neither of them can be said to have been established by legitimate proof.  A verdict in favor of the party bound to maintain one of those propositions against the other is necessarily wrong. Whenever the evidence is clearly such that if a verdict were rendered for one of the parties the other would be entitled to a new trial, it is the duty of the judge to direct the jury to find according to the views of the court.  (Pennsylvania Railroad v. Chamberlain, 288 U.S. 333 (1933) 

In that case an action was brought alleging that defendant's negligence caused the death of a brakeman.  Plaintiff's theory was that the death resulted from a violent collision of a string of railroad cars causing the brakeman to be run over.  Plaintiff's case rested on the testimony of a single  employee, who testified that at one point he saw the car on which the decedent was riding slowing down and other cars behind it gaining speed.  Later he heard a loud noise, like a crash, but did not look.  Three other employees testified that no collision occurred.  The trial court directed a verdict for defendant.  The appellate court reversed finding there was conflicting evidence and thus using the scintilla of evidence test, a jury issue was present.  The issue before the U.S. Supreme Court was whether there was enough evidence to go to the jury?  The court held  no reasoning that the scintilla rule has been definitely and repeatedly rejected so far as the federal courts are concerned.

Integrity of Verdicts

Grounds for New Trials

Motion for New Trial.  The trial judge has the power to grant a motion for a new trial when errors or irregularities have occurred during the proceedings.  Under the federal rules a motion for new trial must be served within 28 days from the entry of judgment  (FRCP 59(b).)  The most frequent ground for granting of a new trial is that the verdict is against the weight of the evidence.  Also, any prejudicial error of law which would be ground for a reversal on appeal will also be a ground for a new trial. 


Grounds for a New Trial

(1) Irregularity of the proceedings;

(2) Misconduct of jury; 

(3) Accident or surprise; 

(4) Newly discovered evidence;

(5) Insufficient evidence; 

(6) Verdict against law; 

(7) Error in law; 

(8) Excessive or inadequate damages.  (Cal.Code.Civ.Proc. § 657.)

FRCP 59 does not list the grounds for which a new trial may be granted.  (Wright § 95) In federal courts common law must be looked to in determining the available grounds. 

Verdicts Against the Weight of the Evidence

Motion for JNOV  Like the motion for directed verdict, this motion raises only the legal question whether the jury could decide reasonably either way.  It differs from the motion for a new trial where the court has discretion to set aside a verdict and grant a new trial even if the verdict is supported by substantial evidence.  The motion for JNOV, on the other hand, must be denied if there is any substantial evidence supporting the verdict.  (Wright § 95)

FRCP 49 governs types of verdicts.  There are two types.  General and special.  A general verdict is one in which the jury makes a general finding for one party or the other.  It merely announces which party wins and if it is the plaintiff how much he recovers.  The drawback to such a verdict is that there is no way of telling whether a jury has performed its function properly from a general verdict.

Excessive & Insufficient Damages:  Remittitur & Additur

When a party moves for a new trial the judge may state that he will grant the motion unless the opposing party agrees to accept a specified reduction or increase in the verdict.  The power to reduce damages is called remittitur and is recognized in both the state and federal systems.  Remittitur is a limited exception to the sanctity of jury fact-finding.  It allows trial judges to reduce damages, but only when the award is grossly excessive.  Remittitur has the effect of merely lopping off an excess.  Additur, the increase of a judgment, is not recognized in the federal courts having been held a violation of the 7th Amendment.  Most courts have ruled that the party who accepts the remittitur or additur cannot appeal because he has acquiesced in the judgment.  Some courts have rejected this limitation and others have recognized the party's right to cross-appeal if the losing party first appeals.  (Friedenthal § 12.4)

Mechanics of Post-Trial Motions

Denial of a motion for new trial results in a judgment that is final and appealable.  The grant of such a motion does not.  In order to avoid piecemeal appeals the federal rules provide that if a new trial motion is granted, but only as an alternative to the grant of a JNOV motion, then both rulings may be appealed immediately.  (FRCP 50(c)(1).)  If a new trial is granted and the JNOV motion is denied, then the case must proceed to a new trial, and the denial of the JNOV cannot be reviewed until after the new trial has concluded.  (Friedenthal §12.3)

May an appellate court order JNOV without giving the trial court which has previously upheld the verdict the opportunity of deciding that a new trial should be held instead?  Yes. There is nothing in Rule 50(d) indicating that the court of appeals may not direct entry of JNOV in appropriate cases.  Although a trial judge is in a better position to rule on a motion for new trial this does not justify an ironclad rule that the court of appeals should never order dismissal or judgment for defendant when the plaintiff's verdict has been set aside on appeal.  There are situations where the defendant's grounds for setting aside the verdict raise questions of subject matter jurisdiction or dispositive issues of law which if resolved in defendant's favor, must necessarily terminate the litigation. (Neely v. Martin K. Eby Construction Co., 386 U.S. 317 (1967)

The motion for a directed verdict is an absolute prerequisite to a subsequent grant of JNOV.  (Wright, § 95)  If a party fails to make a directed verdict motion, a JNOV is not available.  (Friedenthal § 12.3)

Post Judgment Relief in the Trial Court

A FRCP 60(b) motion to vacate is not a substitute for appeal.  Rule 60(b) requires a showing of exceptional circumstances or a grievous wrong evoked by new and unforeseen conditions.  Appellate review of a denial of a Rule 60(b) motion is limited to determining whether the district court abused its discretion.  "Rule 60(b) was not intended to provide relief for error on the part of the court or to afford a substitute for appeal.  Nor is a change in the judicial view of applicable law after a final judgment sufficient basis for vacating such judgment entered before announcement of the change."  (Title v. U.S. 263 F2d 28, 31)

Print This Page Email Link to This Page © Republish or License This

© 2015 by and Craig A. Smith

Back to top of page.