UNITHERM FOOD SYSTEMS, INC. v. SWIFT- ECKRICH, INC., dba CONAGRA REFRIGERATED FOODS

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UNITHERM FOOD SYSTEMS, INC. v. SWIFT-
ECKRICH, INC., dba CONAGRA
REFRIGERATED FOODS
certiorari to the united states court of appeals for
the federal circuit
No. 04–597. Argued November 2, 2005—Decided January 23, 2006
After respondent ConAgra warned companies selling equipment and proc
esses for browning precooked meats that it intended to protect its rights
under its patent for that process, petitioner Unitherm, whose president
had invented the process six years before ConAgra filed its patent appli
cation, and one of ConAgra’s direct competitors jointly filed suit in an
Oklahoma federal court. As relevant here, they sought a declaration
that ConAgra’s patent was invalid and unenforceable and alleged that
ConAgra had violated § 2 of the Sherman Act by attempting to enforce
a patent obtained by fraud on the Patent and Trademark Office, see
Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp.,
382 U. S. 172, 174. The District Court found the patent invalid and
allowed the Walker Process claim to proceed to trial. Before the case
was submitted to the jury, ConAgra moved for a directed verdict under
Federal Rule of Civil Procedure 50(a) based on legal insufficiency of the
evidence. The court denied the motion, the jury returned a verdict for
Unitherm, and ConAgra neither renewed its motion for judgment as a
matter of law pursuant to Rule 50(b) nor moved for a new trial on anti
trust liability pursuant to Rule 59. On appeal to the Federal Circuit,
ConAgra maintained that there was insufficient evidence to sustain the
Walker Process verdict. The court applied Tenth Circuit law, under
which a party that has failed to file a postverdict sufficiency of the evi
dence challenge may nonetheless raise such a claim on appeal, so long
as the party filed a Rule 50(a) motion before submission of the case to
the jury. The only available relief in such a circumstance is a new trial.
Freed to examine the sufficiency of the evidence, the Federal Circuit
vacated the judgment and ordered a new trial.
Held: Since respondent failed to renew its preverdict motion as specified
in Rule 50(b), the Federal Circuit had no basis for reviewing respond
ent’s sufficiency of the evidence challenge. Rule 50 sets forth the re
quirements, establishing two stages, for challenging the sufficiency of
the evidence in a civil jury trial. Rule 50(a) allows a challenge prior to
the case’s submission to the jury, authorizing the district court to grant
the motion at the court’s discretion. Rule 50(b), by contrast, sets forth

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the requirements for renewing the challenge after the jury verdict and
entry of judgment. A party’s failure to file a Rule 50(b) postverdict
motion deprives an appellate court of the “power to direct the District
Court to enter judgment contrary to the one it had permitted to stand.”
Cone v. West Virginia Pulp & Paper Co., 330 U. S. 212, 218. It also
deprives an appellate court of the power to order the entry of judgment
in favor of that party where the district court directed the jury’s verdict,
Globe Liquor Co. v. San Roman, 332 U. S. 571, and where the district
court expressly reserved a party’s preverdict directed verdict motion
and then denied it after the verdict, Johnson v. New York, N. H. & H. R.
Co., 344 U. S. 48. A postverdict motion is necessary because determin
ing “whether a new trial should be granted or a judgment entered under
Rule 50(b) calls for the judgment in the first instance of the judge who
saw and heard the witnesses and has the feel of the case which no appel
late printed transcript can impart.” Cone, supra, at 216. Moreover,
the requirement “is not an idle motion” but “an essential part of the
rule, firmly grounded in principles of fairness.” Johnson, supra, at 53.
These authorities require reversal of the judgment below. This Court’s
observations about the postverdict motion’s necessity and the benefits
of the district court’s input at that stage apply with equal force whether
a party is seeking judgment as a matter of law or simply a new trial.
Contrary to respondent’s argument, the Cone, Globe Liquor, and John
son outcomes underscore this holding. Those litigants all secured new
trials, but they had moved for a new trial postverdict in the district
court and did not seek to establish their entitlement to a new trial based
solely on a denied Rule 50(a) motion. This result is further validated
by the purported basis of respondent’s appeal, namely, the District
Court’s denial of its Rule 50(a) motion. Cone, Globe Liquor, and John
son unequivocally establish that the precise subject matter of a party’s
Rule 50(a) motion cannot be appealed unless that motion is renewed
pursuant to Rule 50(b). Respondent, rather than seeking to appeal the
claim raised in its Rule 50(a) motion, seeks a new trial based on legal
insufficiency of the evidence. If a litigant that has failed to file a Rule
50(b) motion is foreclosed from seeking the relief sought in its Rule 50(a)
motion, then surely respondent is foreclosed from seeking relief it did
not and could not seek in its preverdict motion. Rule 50(b)’s text con
firms that respondent’s Rule 50(a) motion did not give the District Court
the option of ordering a new trial, for it provides that a district court
may only order a new trial based on issues raised in a Rule 50(a) motion
when “ruling on a renewed motion” under Rule 50(b). If the District
Court lacked such power, then the Court of Appeals was similarly pow
erless. Rule 50(a)’s text and application also support this result. A
district court may enter judgment as a matter of law when it concludes

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that the evidence is legally insufficient, but it is not required to do so.
Thus, the denial of respondent’s Rule 50(a) motion was not error, but
merely an exercise of the District Court’s discretion. Pp. 399–407.
375 F. 3d 1341, reversed.
Thomas, J., delivered the opinion of the Court, in which Roberts, C. J.,
and O’Connor, Scalia, Souter, Ginsburg, and Breyer, JJ., joined.
Stevens, J., filed a dissenting opinion, in which Kennedy, J., joined,
post, p. 407.
Burck Bailey argued the cause for petitioner. With him
on the briefs were Greg A. Castro, Jay P. Walters, and Den
nis D. Brown.
Malcolm L. Stewart argued the cause for the United
States as amicus curiae urging reversal. With him on the
brief were Solicitor General Clement, Assistant Attorney
General Keisler, Deputy Solicitor General Hungar, Mar
leigh Dover, and August Flentje.
Robert A. Schroeder argued the cause for respondent.
With him on the briefs were John R. Reese, Leigh Otsuka
Curran, and John P. Passarelli.
Justice Thomas delivered the opinion of the Court.
Ordinarily, a party in a civil jury trial that believes the
evidence is legally insufficient to support an adverse jury
verdict will seek a judgment as a matter of law by filing a
motion pursuant to Federal Rule of Civil Procedure 50(a)
before submission of the case to the jury, and then (if the
Rule 50(a) motion is not granted and the jury subsequently
decides against that party) a motion pursuant to Rule 50(b).
In this case, however, the respondent filed a Rule 50(a) mo
tion before the verdict, but did not file a Rule 50(b) motion
after the verdict. Nor did respondent request a new trial
under Rule 59. The Court of Appeals nevertheless pro
ceeded to review the sufficiency of the evidence and, upon a
finding that the evidence was insufficient, remanded the case
for a new trial. Because our cases addressing the require
ments of Rule 50 compel a contrary result, we reverse.

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I
The genesis of the underlying litigation in this case was
ConAgra’s attempt to enforce its patent for “A Method for
Browning Precooked Whole Muscle Meat Products,” U. S.
Patent No. 5,952,027 (’027 patent). In early 2000, ConAgra
issued a general warning to companies who sold equipment
and processes for browning precooked meats explaining that
it intended to “ ‘aggressively protect all of [its] rights under
[the ’027] patent.’ ” 375 F. 3d 1341, 1344 (CA Fed. 2004).
Petitioner Unitherm sold such processes, but did not receive
ConAgra’s warning. ConAgra also contacted its direct com
petitors in the precooked meat business, announcing that it
was “ ‘making the ’027 Patent and corresponding patents that
may issue available for license at a royalty rate of 10¢ per
pound.’ ” Id., at 1345. Jennie-O, a direct competitor, re
ceived ConAgra’s correspondence and undertook an inves
tigation to determine its rights and responsibilities with
regard to the ’027 patent. Jennie-O determined that the
browning process it had purchased from Unitherm was the
same as the process described in the ’027 patent. Jennie-O
further determined that the ’027 patent was invalid because
Unitherm’s president had invented the process described
in that patent six years before ConAgra filed its patent
application.
Consistent with these determinations, Jennie-O and Uni
therm jointly sued ConAgra in the Western District of Okla
homa. As relevant here, Jennie-O and Unitherm sought a
declaration that the ’027 patent was invalid and unenforce
able, and alleged that ConAgra had violated § 2 of the Sher
man Act, ch. 647, 26 Stat. 209, as amended, 15 U. S. C. § 2, by
attempting to enforce a patent that was obtained by commit
ting fraud on the Patent and Trademark Office (PTO). See
Walker Process Equipment, Inc. v. Food Machinery &
Chemical Corp., 382 U. S. 172, 174 (1965) (holding that “the
enforcement of a patent procured by fraud on the Patent
Office may be violative of § 2 of the Sherman Act provided

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the other elements necessary to a § 2 case are present”).
The District Court construed the ’027 patent and determined
that it was invalid based on Unitherm’s prior public use and
sale of the process described therein. 35 U. S. C. § 102(b).
After dismissing Jennie-O for lack of antitrust standing, the
District Court allowed Unitherm’s Walker Process claim to
proceed to trial. Prior to the court’s submission of the case
to the jury, ConAgra moved for a directed verdict under
Rule 50(a) based on legal insufficiency of the evidence. The
District Court denied that motion.1 The jury returned a
verdict for Unitherm, and ConAgra neither renewed its mo
tion for judgment as a matter of law pursuant to Rule 50(b),
nor moved for a new trial on antitrust liability pursuant to
Rule 59.2
On appeal to the Federal Circuit, ConAgra maintained
that there was insufficient evidence to sustain the jury’s
Walker Process verdict. Although the Federal Circuit has
concluded that a party’s “failure to present the district court
with a post-verdict motion precludes appellate review of suf
ficiency of the evidence,” Biodex Corp. v. Loredan Biomedi
cal, Inc., 946 F. 2d 850, 862 (1991), in the instant case it was
bound to apply the law of the Tenth Circuit, 375 F. 3d, at
1365, n. 7 (“On most issues related to Rule 50 motions . . .
we generally apply regional circuit law unless the precise
1 Petitioner contends that respondent’s Rule 50(a) motion pertained only
to the fraud element of petitioner’s Walker Process claim, and that it did
not encompass the remaining antitrust elements of that claim. Because
we conclude that petitioner is entitled to prevail irrespective of the scope
of respondent’s Rule 50(a) motion, we assume without deciding that that
motion pertained to all aspects of petitioner’s § 2 claim. But see Amend
ments to Federal Rules of Civil Procedure, 134 F. R. D. 525, 687 (1991)
(“A post-trial motion for judgment can be granted only on grounds ad
vanced in the pre-verdict motion”).
2 While ConAgra did file a postverdict motion seeking a new trial on
antitrust damages, that motion did not seek to challenge the sufficiency of
the evidence establishing antitrust liability and thus has no bearing on the
instant case.

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issue being appealed pertains uniquely to patent law”).
Under Tenth Circuit law, a party that has failed to file a
postverdict motion challenging the sufficiency of the evi
dence may nonetheless raise such a claim on appeal, so long
as that party filed a Rule 50(a) motion prior to submission of
the case to the jury. Cummings v. General Motors Corp.,
365 F. 3d 944, 950–951 (2004). Notably, the only available
relief in such a circumstance is a new trial. Id., at 951.
Freed to examine the sufficiency of the evidence, the Fed
eral Circuit concluded that, although Unitherm had pre
sented sufficient evidence to support a determination that
ConAgra had attempted to enforce a patent that it had ob
tained through fraud on the PTO, 375 F. 3d, at 1362, Uni
therm had failed to present evidence sufficient to support
the remaining elements of its antitrust claim. Id., at 1365
(“Unitherm failed to present any economic evidence capable
of sustaining its asserted relevant antitrust market, and
little to support any other aspect of its Section 2 claim”).
Accordingly, it vacated the jury’s judgment in favor of Uni
therm and remanded for a new trial. We granted certiorari,
543 U. S. 1186 (2005), and now reverse.
II
Federal Rule of Civil Procedure 50 sets forth the proce
dural requirements for challenging the sufficiency of the evi
dence in a civil jury trial and establishes two stages for such
challenges—prior to submission of the case to the jury, and
after the verdict and entry of judgment. Rule 50(a) allows
a party to challenge the sufficiency of the evidence prior to
submission of the case to the jury, and authorizes the district
court to grant such motions at the court’s discretion:
“(a) Judgment as a Matter of Law.
“(1) If during a trial by jury a party has been fully
heard on an issue and there is no legally sufficient evi
dentiary basis for a reasonable jury to find for that party
on that issue, the court may determine the issue against

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that party and may grant a motion for judgment as a
matter of law against that party with respect to a claim
or defense that cannot under the controlling law be
maintained or defeated without a favorable finding on
that issue.
“(2) Motions for judgment as a matter of law may be
made at any time before submission of the case to the
jury. Such a motion shall specify the judgment sought
and the law and the facts on which the moving party is
entitled to the judgment.”
Rule 50(b), by contrast, sets forth the procedural require
ments for renewing a sufficiency of the evidence challenge
after the jury verdict and entry of judgment.
“(b) Renewing Motion for Judgment After
Trial; Alternative Motion for New Trial. If, for
any reason, the court does not grant a motion for judg
ment as a matter of law made at the close of all the
evidence, the court is considered to have submitted the
action to the jury subject to the court’s later deciding
the legal questions raised by the motion. The movant
may renew its request for judgment as a matter of law
by filing a motion no later than 10 days after entry of
judgment—and may alternatively request a new trial or
join a motion for a new trial under Rule 59. In ruling
on a renewed motion, the court may:
“(1) if a verdict was returned:
“(A) allow the judgment to stand,
“(B) order a new trial, or
“(C) direct entry of judgment as a matter of
law . . . .”
This Court has addressed the implications of a party’s fail
ure to file a postverdict motion under Rule 50(b) on several
occasions and in a variety of procedural contexts. This
Court has concluded that, “[i]n the absence of such a motion”
an “appellate court [is] without power to direct the District

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Court to enter judgment contrary to the one it had permitted
to stand.” Cone v. West Virginia Pulp & Paper Co., 330
U. S. 212, 218 (1947). This Court has similarly concluded
that a party’s failure to file a Rule 50(b) motion deprives the
appellate court of the power to order the entry of judgment
in favor of that party where the district court directed the
jury’s verdict, Globe Liquor Co. v. San Roman, 332 U. S. 571
(1948), and where the district court expressly reserved a par
ty’s preverdict motion for a directed verdict and then denied
that motion after the verdict was returned, Johnson v. New
York, N. H. & H. R. Co., 344 U. S. 48 (1952). A postverdict
motion is necessary because “[d]etermination of whether a
new trial should be granted or a judgment entered under
Rule 50(b) calls for the judgment in the first instance of the
judge who saw and heard the witnesses and has the feel of
the case which no appellate printed transcript can impart.” 3
Cone, supra, at 216. Moreover, the “requirement of a timely
application for judgment after verdict is not an idle motion”
because it “is . . . an essential part of the rule, firmly
grounded in principles of fairness.” Johnson, supra, at 53.
The foregoing authorities lead us to reverse the judgment
below. Respondent correctly points out that these authori
ties address whether an appellate court may enter judgment
in the absence of a postverdict motion, as opposed to whether
an appellate court may order a new trial (as the Federal Cir
3 Neither Neely v. Martin K. Eby Constr. Co., 386 U. S. 317 (1967), nor
Weisgram v. Marley Co., 528 U. S. 440 (2000), undermine our judgment
about the benefit of postverdict input from the district court. In those
cases this Court determined that an appellate court may, in certain cir
cumstances, direct the entry of judgment when it reverses the district
court’s denial of a Rule 50(b) motion. But in such circumstances the dis
trict court will have had an opportunity to consider the propriety of enter
ing judgment or ordering a new trial by virtue of the postverdict motion.
Moreover, these cases reiterate the value of the district court’s input, cau
tioning the courts of appeals to be “ ‘constantly alert’ to ‘the trial judge’s
first-hand knowledge of witnesses, testimony, and issues.’ ” Id., at 443
(quoting Neely, supra, at 325).

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cuit did here). But this distinction is immaterial. This
Court’s observations about the necessity of a postverdict mo
tion under Rule 50(b), and the benefits of the district court’s
input at that stage, apply with equal force whether a party
is seeking judgment as a matter of law or simply a new trial.
In Cone, this Court concluded that, because Rule 50(b) per
mits the district court to exercise its discretion to choose
between ordering a new trial and entering judgment, its “ap
praisal of the bona fides of the claims asserted by the liti
gants is of great value in reaching a conclusion as to whether
a new trial should be granted.” 330 U. S., at 216 (emphasis
added). Similarly, this Court has determined that a party
may only pursue on appeal a particular avenue of relief avail
able under Rule 50(b), namely, the entry of judgment or a
new trial, when that party has complied with the Rule’s fil
ing requirements by requesting that particular relief below.
See Johnson, supra, at 54 (“Respondent made a motion to
set aside the verdict and for new trial within the time re
quired by Rule 50(b). It failed to comply with permission
given by 50(b) to move for judgment n. o. v. after the verdict.
In this situation respondent is entitled only to a new trial,
not to a judgment in its favor”).4
4 The dissent’s suggestion that 28 U. S. C. § 2106 permits the courts of
appeals to consider the sufficiency of the evidence underlying a civil jury
verdict notwithstanding a party’s failure to comply with Rule 50 is fore
closed by authority of this Court. While the dissent observes that § 2106
was enacted after Cone and Globe Liquor Co. v. San Roman, 332 U. S. 571
(1948), post, at 408 (opinion of Stevens, J.), it fails to note that it was
enacted prior to Johnson. Johnson explicitly reaffirmed those earlier
cases, concluding that “in the absence of a motion for judgment notwith
standing the verdict made in the trial court within ten days after recep
tion of a verdict [Rule 50] forbids the trial judge or an appellate court to
enter such a judgment.” 344 U. S., at 50. Moreover, in Neely, this Court
observed that § 2106 is “broad enough to include the power to direct entry
of judgment n. o. v. on appeal,” 386 U. S., at 322, but nonetheless reaf
firmed that Cone, Globe Liquor, and Johnson “make it clear that an appel
late court may not order judgment n. o. v. where the verdict loser
has failed strictly to comply with the procedural requirements of Rule

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Despite the straightforward language employed in Cone,
Globe Liquor, and Johnson, respondent maintains that those
cases dictate affirmance here, because in each of those cases
the litigants secured a new trial. But in each of those cases
the appellants moved for a new trial postverdict in the Dis
trict Court, and did not seek to establish their entitlement
to a new trial solely on the basis of a denied Rule 50(a)
motion. See Cone, supra, at 213 (noting that respondent
moved for a new trial); 5 Globe Liquor, supra, at 572 (“The
50(b),” 386 U. S., at 325. Contrary to the dissent’s suggestion, Neely con
firms that the broad grant of authority to the courts of appeals in § 2106
must be exercised consistent with the requirements of the Federal Rules
of Civil Procedure as interpreted by this Court.
The dissent’s approach is not only foreclosed by authority of this Court,
it also may present Seventh Amendment concerns. The implication of the
dissent’s interpretation of § 2106 is that a court of appeals would be free
to examine the sufficiency of the evidence regardless of whether the appel
lant had filed a Rule 50(a) motion in the district court and, in the event
the appellant had filed a Rule 50(a) motion, regardless of whether the
district court had ever ruled on that motion. The former is squarely fore
closed by Slocum v. New York Life Ins. Co., 228 U. S. 364 (1913), and the
latter is inconsistent with this Court’s explanation of the requirements of
the Seventh Amendment in Baltimore & Carolina Line, Inc. v. Redman,
295 U. S. 654, 658 (1935) (explaining that “under the pertinent rules of the
common law the court of appeals could set aside the verdict for error of
law, such as the trial court’s ruling respecting the sufficiency of the evi
dence, and direct a new trial, but could not itself determine the issues of
fact and direct a judgment for the defendant, for this would cut off the
plaintiff ’s unwaived right to have the issues of fact determined by a jury”
(emphasis added)). Indeed, Rule 50 was drafted with such concerns in
mind. See 9A C. Wright & A. Miller, Federal Practice and Procedure
§ 2522, pp. 244–246 (2d ed. 1995) (hereinafter Federal Practice).
5 While the precise nature of the new trial motion at issue in Cone is
difficult to ascertain from this Court’s description of that motion, the
Court of Appeals opinion in that case confirms that the movant had prop
erly objected to the admission of certain evidence, and then moved post
verdict “for a new trial [on the basis of the inadmissible evidence] and
later renewed this motion upon the basis of newly-discovered evidence.”
West Virginia Pulp & Paper Co. v. Cone, 153 F. 2d 576, 580 (CA4 1946).
This Court did not disturb the Court of Appeals’ holding that formed the

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respondents . . . moved for a new trial on the ground . . . that
there were many contested issues of fact”). Indeed, John
son concluded that respondent was only entitled to a new
trial by virtue of its motion for such “within the time re
quired by Rule 50(b).” 344 U. S., at 54. Accordingly, these
outcomes merely underscore our holding today—a party is
not entitled to pursue a new trial on appeal unless that party
makes an appropriate postverdict motion in the district
court.
Our determination that respondent’s failure to comply
with Rule 50(b) forecloses its challenge to the sufficiency of
the evidence is further validated by the purported basis of
respondent’s appeal, namely, the District Court’s denial of
respondent’s preverdict Rule 50(a) motion. As an initial
matter, Cone, Globe Liquor, and Johnson unequivocally es
tablish that the precise subject matter of a party’s Rule 50(a)
motion—namely, its entitlement to judgment as a matter of
law—cannot be appealed unless that motion is renewed pur
suant to Rule 50(b). Here, respondent does not seek to pur
sue on appeal the precise claim it raised in its Rule 50(a)
motion before the District Court—namely, its entitlement to
judgment as a matter of law. Rather, it seeks a new trial
based on the legal insufficiency of the evidence. But if, as
in Cone, Globe Liquor, and Johnson, a litigant that has failed
to file a Rule 50(b) motion is foreclosed from seeking the
relief it sought in its Rule 50(a) motion—i. e., the entry of
judgment—then surely respondent is foreclosed from seek
ing a new trial, relief it did not and could not seek in its
preverdict motion. In short, respondent never sought a new
trial before the District Court, and thus forfeited its right to
do so on appeal. Yakus v. United States, 321 U. S. 414, 444
(1944) (“No procedural principle is more familiar to this
Court than that a . . . right may be forfeited . . . by the
basis of the movant’s entitlement to a new trial, namely, “the Circuit Court
of Appeals’ holding that there was prejudicial error in the admission of
evidence.” 330 U. S., at 215.

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failure to make timely assertion of the right before a tribunal
having jurisdiction to determine it”).
The text of Rule 50(b) confirms that respondent’s prever
dict Rule 50(a) motion did not present the District Court
with the option of ordering a new trial. That text provides
that a district court may only order a new trial on the basis
of issues raised in a preverdict Rule 50(a) motion when “rul
ing on a renewed motion” under Rule 50(b). Accordingly,
even if the District Court was inclined to grant a new trial
on the basis of arguments raised in respondent’s preverdict
motion, it was without the power to do so under Rule 50(b)
absent a postverdict motion pursuant to that Rule. Conse
quently, the Court of Appeals was similarly powerless.
Similarly, the text and application of Rule 50(a) support
our determination that respondent may not challenge the
sufficiency of the evidence on appeal on the basis of the Dis
trict Court’s denial of its Rule 50(a) motion. The Rule pro
vides that “the court may determine” that “there is no le
gally sufficient evidentiary basis for a reasonable jury to find
for [a] party on [a given] issue,” and “may grant a motion for
judgment as a matter of law against that party . . . .” (Em
phasis added.) Thus, while a district court is permitted to
enter judgment as a matter of law when it concludes that
the evidence is legally insufficient, it is not required to do so.
To the contrary, the district courts are, if anything, encour
aged to submit the case to the jury, rather than granting
such motions. As Wright and Miller explain:
“Even at the close of all the evidence it may be desir
able to refrain from granting a motion for judgment as
a matter of law despite the fact that it would be possible
for the district court to do so. If judgment as a matter
of law is granted and the appellate court holds that the
evidence in fact was sufficient to go to the jury, an entire
new trial must be had. If, on the other hand, the trial
court submits the case to the jury, though it thinks the
evidence insufficient, final determination of the case is

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expedited greatly. If the jury agrees with the court’s
appraisal of the evidence, and returns a verdict for the
party who moved for judgment as a matter of law, the
case is at an end. If the jury brings in a different ver
dict, the trial court can grant a renewed motion for judg
ment as a matter of law. Then if the appellate court
holds that the trial court was in error in its appraisal of
the evidence, it can reverse and order judgment on the
verdict of the jury, without any need for a new trial.
For this reason the appellate courts repeatedly have said
that it usually is desirable to take a verdict, and then
pass on the sufficiency of the evidence on a post-verdict
motion.” 9A Federal Practice § 2533, at 319 (footnote
omitted).
Thus, the District Court’s denial of respondent’s preverdict
motion cannot form the basis of respondent’s appeal, because
the denial of that motion was not error. It was merely an
exercise of the District Court’s discretion, in accordance with
the text of the Rule and the accepted practice of permitting
the jury to make an initial judgment about the sufficiency of
the evidence. The only error here was counsel’s failure to
file a postverdict motion pursuant to Rule 50(b).6
6 Respondent claims that its failure to renew its Rule 50(a) motion was
in reliance on the Tenth Circuit’s determination that it could order a new
trial in the absence of a Rule 50(b) motion. But respondent cannot credi
bly maintain that it wanted the Court of Appeals to order a new trial as
opposed to entering judgment. And, as the Tenth Circuit has recognized,
respondent could not obtain the entry of judgment unless it complied with
Rule 50(b). Cummings v. General Motors Corp., 365 F. 3d 944, 951 (2004).
Respondent therefore had every incentive to comply with that Rule’s re
quirements. Accordingly, we reject its contention that our application of
Rule 50(b) to the instant case is impermissibly retroactive. See also
Harper v. Virginia Dept. of Taxation, 509 U. S. 86, 97 (1993) (“[W]e can
scarcely permit the substantive law to shift and spring according to the
particular equities of individual parties’ claims of actual reliance on an old
rule and of harm from a retroactive application of the new rule” (internal
quotation marks and brackets omitted)).

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407 Cite as: 546 U. S. 394 (2006)
Stevens, J., dissenting
* * *
For the foregoing reasons, we hold that since respondent
failed to renew its preverdict motion as specified in Rule
50(b), there was no basis for review of respondent’s suffi
ciency of the evidence challenge in the Court of Appeals.
The judgment of the Court of Appeals is reversed.7
It is so ordered.
Justice Stevens, with whom Justice Kennedy joins,
dissenting.
Murphy’s law applies to trial lawyers as well as pilots.
Even an expert will occasionally blunder. For that reason
Congress has preserved the federal appeals courts’ power to
correct plain error, even though trial counsel’s omission will
ordinarily give rise to a binding waiver. This is not a case,
in my view, in which the authority of the appellate court is
limited by an explicit statute or controlling rule. The spirit
of the Federal Rules of Civil Procedure favors preservation
of a court’s power to avoid manifestly unjust results in ex
ceptional cases. See Johnson v. New York, N. H. & H. R.
Co., 344 U. S. 48, 62 (1952) (Frankfurter, J., dissenting)
(“ ‘Procedure is the means; full, equal and exact enforcement
of substantive law is the end’ ” (quoting Pound, The Eti
quette of Justice, 3 Proceedings Neb. St. Bar Assn. 231
(1909))). Moreover, we have an overriding duty to obey
statutory commands that unambiguously express the intent
of Congress even in areas such as procedure in which we
may have special expertise.
Today, relying primarily on a case decided in March 1947,
Cone v. West Virginia Pulp & Paper Co., 330 U. S. 212, and
a case decided in January 1948, Globe Liquor Co. v. San
7 We reject respondent’s contention that it is entitled to a remand for
reconsideration in light of Phillips v. AWH Corp., 415 F. 3d 1303 (CA Fed.
2005). The Federal Circuit has already denied respondent’s petition for
rehearing raising this issue.

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408 UNITHERM FOOD SYSTEMS, INC. v.
SWIFT-ECKRICH, INC.
Stevens, J., dissenting
Roman, 332 U. S. 571, the Court holds that the Court of Ap
peals was “powerless” to review the sufficiency of the evi
dence supporting the verdict in petitioner’s favor because
respondent failed to file proper postverdict motions pursuant
to Rules 50(b) and 59 of the Federal Rules of Civil Procedure
in the trial court. Ante, at 405. The majority’s holding is
inconsistent with a statute enacted just months after Globe
Liquor was decided. That statute, which remains in effect
today, provides:
“The Supreme Court or any other court of appellate
jurisdiction may affirm, modify, vacate, set aside or re
verse any judgment, decree, or order of a court lawfully
brought before it for review, and may remand the cause
and direct the entry of such appropriate judgment, de
cree, or order, or require such further proceedings to
be had as may be just under the circumstances.” 28
U. S. C. § 2106.
Nothing in Rule 50(b) limits this statutory grant of power
to appellate courts; while a party’s failure to make a Rule
50(b) motion precludes the district court from directing a
verdict in that party’s favor, the Rule does not purport to
strip the courts of appeals of the authority to review district
court judgments or to order such relief as “may be just under
the circumstances.” Nor do general principles of waiver or
forfeiture have that effect. Cf. ante, at 404–405. It is well
settled that a litigant’s waiver or forfeiture of an argument
does not, in the absence of a contrary statutory command,
preclude the courts of appeals from considering those argu
ments. See Singleton v. Wulff, 428 U. S. 106, 121 (1976).
Arguments raised for the first time on appeal may be enter
tained, for example, if their consideration would prevent
manifest injustice. Ibid.*
*The Court suggests that the Seventh Amendment limits appellate
courts’ power to review judgments under 28 U. S. C. § 2106. See ante,
at 402–403, n. 4. I disagree with the Court’s analysis in two respects.

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409 Cite as: 546 U. S. 394 (2006)
Stevens, J., dissenting
For the reasons articulated by the Court in Cone, 330 U. S.,
at 216, it may be unfair or even an abuse of discretion for a
court of appeals to direct a verdict in favor of the party that
lost below if that party failed to make a timely Rule 50(b)
motion. Likewise, it may not be “just under the circum
stances” for a court of appeals to order a new trial in the
absence of a proper Rule 59 motion. Finally, a court of ap
peals has discretion to rebuff, on grounds of waiver or forfeit
ure, a challenge to the sufficiency of the evidence absent a
proper Rule 50(b) or Rule 59 motion made in the district
court. None of the foregoing propositions rests, however,
on a determination that the courts of appeals lack “power”
to review the sufficiency of the evidence and order appro
priate relief under these circumstances, and I can divine no
basis for that determination.
I respectfully dissent.
First, although the right to trial by jury might be implicated if no Rule
50(a) motion had been made, such a motion was made in this case. The
Rule 50(a) motion triggered the automatic reservation of “legal questions,”
Fed. Rule Civ. Proc. 50(b), and that reservation, in turn, averted any Sev
enth Amendment problem, see Baltimore & Carolina Line, Inc. v. Red
man, 295 U. S. 654 (1935). Second, the Seventh Amendment imposes no
greater restriction on appellate courts than it does on district courts in
these circumstances; “[a]s far as the Seventh Amendment’s right to jury
trial is concerned, there is no greater restriction on the province of the
jury when an appellate court enters judgment n. o. v. than when a trial
court does.” Neely v. Martin K. Eby Constr. Co., 386 U. S. 317, 322 (1967).