A district court’s denial of summary judgment under FRCP 56 is an interlocutory order and generally not appealable until a final judgment is entered. See Plumhoff v. Rickard, 572 U.S. 765, 771 (2014) (Also holding that the collateral order doctrine is an exception to this general rule). The movant cannot appeal a denial of summary judgment on sufficiency-of-evidence grounds after trial, Ortiz v. Jordan, 562 U.S. 180, 183-84 (2011), but must instead make proper FRCP 50 motions in order to preserve its right of appeal. And even if properly preserved, the trial record, not the summary judgment record, will be analyzed when sufficiency of evidence is challenged.
Prior to today, Courts of Appeals were split “over whether a purely legal challenge resolved at summary judgment must be renewed in a post-trial motion in order to preserve that challenge for appellate review.” Neither the Second Circuit, Third Circuit, Sixth Circuit, Seventh Circuit, Ninth Circuit, Tenth Circuit, nor D.C. Circuit required post-trial motions to preserve claims of purely legal error raised at the summary judgment stage. The Eighth Circuit did not require post-trial motions to preserve “preliminary” legal issues. However, the First Circuit, Fourth Circuit, Fifth Circuit, and Eleventh Circuit all mandated post-trial motions to preserve claims of pure legal error.
In Dupree v. Younger, No. 22-210 (Mar. 25, 2023), the U.S. Supreme Court resolved this dispute by holding that “a post-trial motion under Rule 50 is not required to preserve for appellate review a purely legal issue resolved at summary judgment.”
In this appeal, a prison supervisor was sued by an inmate under the Prison Litigation Reform Act and moved for summary judgment on the basis that the plaintiff did not exhaust his available administrative remedies prior to filing suit. The district court (District of Maryland) denied the motion. There was no evidence related to the exhaustion defense presented at trial and the defendant did not raise exhaustion in his FRCP 50(a) motion. After a judgment on a jury verdict was entered in favor of the plaintiff, the defendant did not file any post-trial motions under FRCP 50(b), but rather, appealed the summary judgment denial of his exhaustion defense. His appeal was dismissed by the Fourth Circuit for failure to preserve the defense through trial. The U.S. Supreme Court reversed and remanded to the Fourth Circuit for a determination of whether purely legal issues were raised on appeal.