More Tales From The Minefield Of Post-Trial/Appellate Practice: Omega SA v. 375 Canal, LLC, 984 F.3d 244 (2nd Cir. 2021)
By Melinda S. Kollross
During this Sidebar author’s nearly 30 years of post-trial and appellate practice, she has guided her work for her clients according to one steadfast rule—always use “belts and suspenders” when it comes to preserving errors and insuring appellate jurisdiction. In one past appeal, four separate notices of appeal were filed in the same case because of uncertainties regarding the finality of the actual final order—and the appellate court accepted all four as properly filed to establish appellate jurisdiction. This recent decision by the United States Court of Appeals for the Second Circuit again illustrates the wisdom of always using “belts and suspenders” in navigating the minefield of post-trial/appellate practice and preserving errors for appeal.
Defendant Canal owned property in Manhattan which it leased to various tenants. One of these tenants was engaged in selling counterfeit Omega watches. Omega warned defendant about the counterfeiting activity, but defendant took no action to stem it. Omega then sued defendant for contributory trademark infringement alleging that defendant continued to lease space knowing that vendors were using it to sell counterfeit Omega goods.
During the pre-trial phase after discovery, defendant moved for summary judgment on a purely legal issue, contending that Omega’s claim was fatally defective because it had not identified a specific vendor to whom defendant continued to lease property despite knowing that the vendor was selling counterfeit goods. The motion was denied.
The case proceeded to trial. At the close of Omega’s evidence and at the end of trial, defendant moved for judgment under Federal Rule of Civil Procedure 50 challenging the sufficiency of the evidence presented but did not again raise the legal issue it had presented in its prior motion for summary judgment. The jury returned a verdict for Omega and defendant appealed.
Defendant’s primary challenge on appeal was that the district court did not require Omega to show that defendant continued to lease space to a specific identified vendor who defendant knew was infringing Omega’s trademarks. Defendant raised this issue by asking the Second Circuit to reverse the district court’s order denying its motion for summary judgment and entering judgment in its favor instead. The Second Circuit in a split decision rejected this request holding it could no longer review a legal issue made in a pre-trial summary judgment motion, where the legal issue had not been raised in a Rule 50 motion at and after trial.
According to the Court, a motion for summary judgment does not preserve an issue for appellate review of a final judgment entered after a trial because once the case proceeds to a full trial, the full record developed at trial supersedes the record existing at the time of the summary judgment motion. Thus to preserve any issues
raised in such pre-trial summary judgment motions, including purely legal issues, those issues must be raised again in a Rule 50(a) motion before the case goes to the jury, and again in a Rule 50(b) motion after trial.
The court ultimately reviewed the legal issue raised, finding it was preserved via an objection to jury instructions, but the Court’s decision stands as to the requirements to preserve issues for review following a jury trial.
Learning Point: The clear holding in Omega is that legal issues raised in pre-trial motions for summary judgment are not preserved following trial unless they are raised again in a Rule 50(a) motion at trial and a Rule 50(b) motion following a trial. This would be the “best practices” the author recommends in any federal district court proceeding in any Circuit to preserve errors, including purely legal ones, for review—especially when there is no definitive United States Supreme Court ruling on the point. Much better that an appellate tribunal says you did not need to raise the issue, unlike the situation in Omega where it was deemed essential for review.