The Federal Rules of Civil Procedure took a real beating from the Ninth Circuit today. A couple of opinions were published that had professors who teach civil procedure shaking their heads. Like me.
I'll mention only one of them for now. This opinion by Judge Thomas.
(At some future point, I'll have even more to say about Chief Judge Kozinski's concurrence in a different opinion earlier today. But I want to deal with the easy one first.)
I won't particularly dispute Judge Thomas' result. It's one of the plethora of "mobile home rent control takings" cases that federal and state courts have had to deal with during the past several decades. It's a holding worth at least brief mention: San Rafael's ordinance is not a taking. That matters if you either live in a mobile home or own a mobile home park.
But I mention the case not because of its holding, but rather due to its language. In particular, how it describes various motions in federal court.
Several times in the opinion Judge Thomas refers to plaintiff having moved for a "directed verdict" under FRCP 50. To be clear: There's no such thing in federal court. Not for the past 20+ years, anyway. That's the old, common law term. In federal court, we call it a motion for judgment as a matter of law. After two-plus decades, we might want to start using the appropriate terms.
Plus, in truth, plaintiff didn't even make a "directed verdict" motion anyway, regardless of what it's called. Plaintiff's motion was made after jury's adverse verdict. That's not a directed verdict motion (or JML), but rather a rJML -- a renewed motion for judgment as a matter of law. What we called in the old common law days a j.n.o.v. motion. For some reason, Judge Thomas' opinion talks about the correct motion when he's quoting from prior Ninth Circuit cases regarding the standard of review, but in his section headings and text, repeatedly refers to an alleged motion for a directed verdict.
I know I'm being a stickler here. But I imagine the parties -- which collectively spent over $5 million in legal fees on the case -- used the correct terms. So we should as well.
