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In Olsen as Trustee for Xurex, Inc. v. Di Mase et al., Case No. 20-2771, 2022 WL 273277 (8th Cir. Jan. 31, 2022), the Eighth Circuit affirmed the lower court’s determination that the defendant’s post-verdict motion for judgment as a matter of law did not comply with Fed. R. Civ. P. 50(b) because it raised legal errors and factual omissions that were not identified in defendant’s pre-verdict motion for judgment as a matter of law under 50(a).

In 2010, Xurex and DuraSeal Pipe Coatings Company, LLC (DPCC) executed a license agreement requiring DPCC to make minimum monthly purchases and pay royalties through 2018. Defendant Lee O. Krause was engaged as a consultant by the owner of DPCC’s parent company, DuraSeal Holdings. In 2014, Xurex and the head of DuraSeal Holdings began discussing bankruptcy with Krause. Krause drafted an amendment to the 2010 license agreement which eliminated minimum purchase obligations, but allowed DuraSeal to keep its exclusive licenses, and gave manufacturing rights to DuraSeal Holdings and DPCC. Krause signed the amended agreement on behalf of DuraSeal Holdings and DPCC as “CEO.”

In 2014, Xurex filed for bankruptcy. Xurex’s Chapter 7 trustee sued Krause and twenty other defendants for conduct leading up to the 2014 agreement. After his counsel withdrew, Krause proceeded pro se. Before the verdict, Krause moved orally for judgment as a matter of law under Rule 50(a). After the jury verdict against him, Krause renewed his motion under 50(b). In his post-verdict 50(b) motion, Krause made arguments that he did not make in his 50(a) motion—specifying for the first time the alleged legal errors and factual omissions on which he based his motion. The district court held that Krause’s post-verdict motion did not comply with 50(b) as his pre-verdict 50(a) motion did not contain any of the arguments Krause raised in his 50(b) motion. The post-verdict motion challenged wholly different grounds than the pre-verdict motion, and as such, the pre-verdict motion failed to put the plaintiff on notice of the arguments in his later 50(b) motion. As a result, the district court held Kraus’ earlier motion failed to preserve the arguments in the 50(b) motion.

The Eighth Circuit affirmed, holding that despite the liberal construction given to pro se litigants, the 50(a) motion “[did] not implicate, in any way” the arguments Krause raised in his Rule 50(b) motion.” As a result, Krause’s post trial 50(b) motion failed to comply with the Federal Rules.

Co-Editors in Chief
Karl J. Johnson, Taft Stettinius & Hollister LLP
David M. Tanabe, Winthrop & Weinstine, P.A.