Rule 50.Motion for a Directed Verdict and for Judgment Notwithstanding the Verdict

Reporter’s Notes (1998) Prior to amendment in 1998, the language of Rule 50(b) provided that a party may “move” for judgment notwithstanding the verdict within ten days of entry of judgment. The Appeals Court has construed this language to require service of the motion within the ten-day period, rather than filing. Russell v. Pride Convenience, Inc., 37 Mass. App. Ct. 502 (1994). Filing in court should be made within a reasonable time after service. Mass.R.Civ.P. 5(d). The Supreme Judicial Court has endorsed this interpretation. F.W. Webb Co. v. Averett, 422 Mass. 625, 629, n.5 (1996).

The 1998 amendment to Rule 50(b) adopts this interpretation by deleting the term “move” and substituting language requiring service of the motion within ten days. The change is not intended to alter existing practice. Rather, it serves to harmonize the language of Rule 50(b) with that of Rule 59, the latter requiring a motion for new trial to be “served” not later than ten days after judgment.

Reporter’s Notes (1996) With the merger of the District Court rules into the Mass.R.Civ.P., Rule 50 has been made applicable to the District Court, to the extent that Massachusetts law permits trial by jury in District Court civil actions.

Reporter’s Notes (1973) Rule 50(a) is patterned upon Federal Rule 50(a), with the first sentence revised for clarity. It liberalizes the Massachusetts practice governing defendant's motion for a directed verdict at the close of the plaintiff's evidence. Formerly, the judge could refuse to rule upon the defendant's motion unless the defendant rested his case upon his opponent's evidence, thereby surrendering his right to put in his own case. See Hurley v. O'Sullivan, 137 Mass. 86, 87 (1884). “The defendant was not entitled to a ruling upon plaintiff's case, reserving to himself the right to put in his own case afterwards.” McMahon v. Tyng, 96 Mass. 167, 169 (1867). Under Rule 50(a), the defendant retains just that right. The judge may still refuse to decide such motion when made, but must rule on it at a later stage of the trial.

“Plaintiff says that 50(a) itself provides no right of reservation or later determination of the motion by the court. The answer to this contention is that nowhere in 50(a) is there evidence of any intention to take from the court its power to reserve a motion at the end of plaintiff's case and later dispose of that motion. . . . [W]here the court has taken a motion under advisement under 50(a) it not only can but must decide the issue.” Sattler v. Great Atlantic & Pacific Tea Co., 18 F.R.D. 271, 274 (W.D.La.1955); see also, Stevens v. G.L. Rugo & Sons Inc., 115 F.Supp. 61, 62 (D.Mass.1952), reversed on other grounds, 209 F.2d 135 (1st Cir.1953).

Until now, the only formal requirements for a motion for directed verdict were that it be in writing, (Super.Ct.R. 71), and that if the declaration contained more than one count the motion specify the particular count upon which a verdict is sought. The provision of Rule 50(a) that a motion for a directed verdict “state the specific grounds therefor,” although often strongly advocated by the Supreme Judicial Court, is new to Massachusetts practice. “When a judge is not prepared to grant such a motion, a prudent practice for him to adopt is to require the moving party to state all the grounds upon which he relies in support of the motion as otherwise an exception to the denial of the motion leaves open every ground in support of the motion even though not mentioned or even thought of at the time of the trial”, Trites v. City of Melrose, 318 Mass. 378, 380, 61 N.E.2d 656, 657 (1945).

The motion for judgment notwithstanding the verdict is new to Massachusetts practice. Unlike practice under former G.L. c. 231, § 120 (entry of verdict or finding in accordance with leave reserved), a motion for judgment n.o.v. does not depend upon the judge's discretionary reservation of leave to review the sufficiency of either party's case. Rule 50(b) presumes such a reservation in every case in which an unsuccessful motion for directed verdict has been made at the close of all the evidence.

The provisions of Rule 50(b) make a party's motion for directed verdict a prerequisite to his motion for judgment notwithstanding the verdict. In Massachusetts, no preliminary motion was required before a party could move that a verdict be entered in his favor under leave reserved. Interstate Busses Corp. v. McKenna, 329 Mass. 1, 2, 105 N.E.2d 852, 853 (1952).

There is no Massachusetts practice similar to the provisions of Rule 50(c) and (d). They aim at expediting judicial administration by requiring the trial judge to make “if-it-should-be-determined-I-have-erred” rulings with respect to a motion for new trial made concurrently with the motion for judgment n.o.v.