From time to time, we intend to invite guest bloggers to provide some comment on matters affecting the Sixth Circuit (volunteers are welcome!). Our first such post comes from Professor Andrew Pollis, from Case Western Reserve Law School. Professor Pollis (who is co-counsel on the case) provides comments on a case that will be heard by the Supreme Court this fall that originated in the Sixth Circuit. The case presents a novel question of appellate jurisdiction. We certainly look forward to seeing how the argument unfolds.

By Andrew Pollis:

On November 1, 2010, the United States Supreme Court will hear oral argument in Ortiz v. Jordan, No. 09-737, in which the Court will decide whether “a party [may] appeal an order denying summary judgment after a full trial on the merits if the party chose not to appeal the order before trial.”

Michelle Ortiz sued prison officials who failed to protect her from a prison guard’s sexual abuse and who retaliated against her for reporting the abuse.  The defendants moved for summary judgment based on qualified immunity, and the district court denied that motion.  Although the defendants could have appealed immediately from that collateral order, they chose not to do so.  Instead, the case proceeded to trial, where Ortiz won a substantial verdict.  After the entry of judgment on the verdict, the defendants appealed the denial of summary judgment to the Sixth Circuit.  The Sixth Circuit reversed the denial of summary judgment—and in doing so considered not only the summary-judgment record, but also the evidence adduced at trial.  See Ortiz v. Jordan, 316 Fed. App’x 449 (6th Cir. 2009).  Judge Daughtrey dissented, calling the result “a legal travesty.”  Id. at 456 (Daughtrey, J., dissenting).

The case raises the question whether the entry of final judgment revives the right to appeal from an earlier summary-judgment order that was “final” under the collateral-order doctrine.  The Court also could address whether a party must move for judgment as a matter of law under Fed. R. Civ. P. 50 to preserve legal arguments raised at the summary-judgment stage.  In this case, the defendants moved for judgment as a matter of law under Fed. R. Civ. P. 50(a) but failed to renew that motion after trial under Fed. R. Civ. P. 50(b).  As a result, the Sixth Circuit had no basis for reviewing the qualified-immunity issue unless the summary-judgment denial became reviewable again at the end of the case.