Federal Rule 50’s Two-Step: A Costly Lesson for Federal Civil Litigators

Nelson v. Toyota Motor Corporation, No. 24-1408 (10th Cir. June 1, 2026) is a stark reminder that in federal civil litigation, procedural compliance with Federal Rule of Civil Procedure 50 is not a technicality. It is a prerequisite to appellate review for sufficiency of the evidence, and no amount of substantive briefing can substitute for it.

What Happened in Nelson?

The underlying facts are sympathetic. Wesley Nelson suffered a severe brain injury when the airbags and seatbelt pretensioners in a Toyota RAV4 failed to deploy during a serious crash. He sued Toyota on a strict product liability manufacturing defect theory. After a two-week trial, the jury found for Toyota. Nelson appealed, arguing the evidence was insufficient to support the verdict. The problem: He had never moved for judgment as a matter of law under Rule 50(a) before the case went to the jury, and he never filed a post-verdict renewed motion under Rule 50(b). Simply, and ultimately fatally, he had filed no Rule 50 motions of his own at any point in the proceedings. The Tenth Circuit affirmed without reaching the merits.

The Two-Step Federal Rule 50 Procedure

Rule 50 imposes a sequential, two-step framework on any party wishing to challenge evidentiary sufficiency. First, under Rule 50(a), a party must move for judgment as a matter of law before the case is submitted to the jury, arguing that no reasonable jury would have a legally sufficient basis to find for the opposing party. Second, if that motion is denied and the jury returns an adverse verdict, the party must renew the motion post-verdict under Rule 50(b), advancing the same arguments raised in the Rule 50(a) motion.

Only after satisfying both steps does a sufficiency-of-the-evidence challenge become eligible for appellate review. The circuit courts will then review the district court’s Rule 50 rulings de novo.

Unitherm and the Death of Plain-Error Review

The controlling Supreme Court precedent is Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., 546 U.S. 394 (2006). Before Unitherm, the Tenth Circuit, following its own Cummings precedent, allowed appellants who had filed a Rule 50(a) motion to raise sufficiency challenges on appeal even without a Rule 50(b) post-verdict motion, subject to plain-error review. Unitherm abrogated that approach, holding that a Rule 50(b) motion is a “necessary” precursor to appellate review, and that without it, the appellate court is “powerless” to disturb the verdict.

Nelson tried to invoke plain-error review, arguing his challenge was merely “forfeited” rather than “waived.” The Tenth Circuit rejected this squarely in Nelson. The court examined its post-Unitherm precedents and concluded that failing to file Rule 50 motions constitutes waiver, the harsher doctrine, not mere forfeiture. Waiver, unlike forfeiture, eliminates even plain-error review. The appellate court simply has no authority to act.

Practical Implications for Federal Practitioners

The lessons from Nelson are straightforward but non-negotiable:

• Move under Rule 50(a), even when you are winning. Rule 50(a) motions are typically associated with defendants seeking dismissal of weak claims. But Nelson reinforces that any party who may want to challenge evidentiary sufficiency on appeal must preserve that right before the verdict. If you represent a plaintiff and believe the defendant has failed to produce sufficient evidence to support an affirmative defense, move under Rule 50(a).
• Always renew under Rule 50(b). Even a well-preserved Rule 50(a) motion is not enough. After an adverse verdict, the movant must file a Rule 50(b) renewed motion within 28 days of judgment. This is not optional. Skipping this step, even inadvertently, eliminates appellate review entirely.
• Match your Rule 50(b) arguments to your Rule 50(a) arguments. The Tenth Circuit has held that the post-verdict motion may only advance arguments made in the pre-verdict motion. Pivoting to new theories in the Rule 50(b) motion will not preserve those new arguments for appeal.
• Do not rely on the other side’s Rule 50 motions. In Nelson, Toyota filed Rule 50(a) motions twice. That did nothing to preserve Nelson’s appellate rights. Each party’s preservation obligations are independent.
• Treat Rule 50 compliance as part of trial strategy, not an afterthought. Build Rule 50 motions into your trial plan from the outset. At the close of the opposing party’s case, and again at the close of all evidence, evaluate whether a Rule 50(a) motion is warranted. After an adverse verdict, calendar the Rule 50(b) deadline immediately.

The Bottom Line

Nelson v. Toyota is a cautionary tale with a foreseeable ending. The Tenth Circuit was not unsympathetic to Nelson’s situation, but it was powerless to help him. Twenty years of post-Unitherm precedent has made the rule unambiguous: Fail to file the requisite Rule 50 motions in the district court, and your sufficiency challenge dies with them. For federal civil practitioners, the message could not be clearer. Preserve early, preserve completely, and never assume the appellate court will find a way in.

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