                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                November 15, 2004
                      _____________________
                                                        Charles R. Fulbruge III
                           No. 03-30924                         Clerk
                      _____________________

                        IVAN ECHEVERRIA,

                     Plaintiff - Appellant,

                             versus

 CHEVRON USA INC., MCCALL CREWBOATS LLC, MCCALL MARINE SERVICES
                   INC.; CHILES OFFSHORE INC.,

                     Defendants - Appellees.
                      _____________________

                           No. 03-31046
                      _____________________

                        IVAN ECHEVERRIA,

                           Plaintiff,

                   PRODUCTION MANAGEMENT INC.,

            Intervenor - Cross Defendant - Appellee,

                             versus

                    CHEVRON USA INC., ET AL.,

                           Defendants,

                      CHILES OFFSHORE INC.,

             Defendant - Cross Claimant - Appellant.
_________________________________________________________________

          Appeals from the United States District Court
              for the Eastern District of Louisiana
_________________________________________________________________




                                1
Before WIENER and PRADO, Circuit Judges, and KINKEADE,1 District

Judge.

PRADO, Circuit Judge.

     The above numbered and styled appeals arose from the trial

of a personal injury lawsuit in which the district court entered

judgment as a matter of law (JMOL) against the plaintiff-

appellant before he had completed the presentation of his case.

After considering the plaintiff-appellant’s arguments, this court

reverses the district court’s judgment and remands the case for

further proceedings.

                       Background of the Appeal

     The plaintiff-appellant, Ivan Echeverria, injured his elbow

when he fell from a rope used to swing from a transport vessel to

an oil platform.   Echeverria contends that there was an oily or

greasy substance on the rope that caused him to slip from the

swing rope and fall into the sea.     Prior to the accident, a jack-

up drilling rig was jacked-up above the platform.    The crew of

the jack-up rig cleaned the work site and departed the area the

day before the accident.    Echeverria speculates that the slippery

substance on the rope may have been drilling mud from the jack-up

rig or the clean-up effort.

     Echeverria sued the owner of the platform, Chevron USA Inc.;

the owner of the utility vessel that transported Echeverria to

     1
      District Judge for the Northern District of Texas, sitting
by designation.

                                  2
the platform, McCall Marine Services, Inc.; the operator of the

utility vessel, McCall Crewboats LLC; and the owner of the jack-

up rig, Chiles Offshore, LLC.

     The district court commenced the trial of the case before a

jury.   After opening arguments, four of Echeverria’s witnesses

testified: Larry Orillion, a co-worker who was present when

Echeverria’s accident occurred; Craig Schieffler, Echeverria’s

supervisor who was also present when the accident occurred;

Echeverria; and Morgan Cheramie, who worked for Echeverria’s

employer.   After this testimony, the district judge sent the jury

out of the courtroom and questioned Echeverria’s lawyer about his

remaining evidence on liability.       The lawyer explained that he

intended to call the Chevron employee who inspected the swing

rope after the accident and to introduce the accident report that

showed the rope had not been inspected or replaced according to

Chevron’s schedule.   The district judge then expressed his

concern that a reasonable jury could not find that the defendants

were liable because (1) the swing rope next to the rope involved

in the accident was clean and dry even though it was near the

accident rope during Chiles’s clean-up efforts, and (2) no one

inspected the rope before he jumped even though each jumper was

trained to inspect a rope before jumping.       The district judge

then stated:

     Based upon my findings, all the liability evidence that
     I have from the plaintiff, including those that is
     [sic] anticipated and accepting what counsel has said

                                   3
     they would testify to, the Court on its own is granting
     a Motion for Judgment as a Matter of Law against
     plaintiff in favor of the defendants on the issue of
     liability.

     The court then gave Echeverria’s lawyer a chance to respond

and invited him to proffer the evidence he would have presented.

The attorney argued about the comparative negligence of the

parties, the difference in elevation between the platform and the

vessel, and the location of the knots on the rope.       He offered

the deposition of Louis Baril, who was present when the accident

occurred, and accident reports that were subject to a motion in

limine, but was unable to convince the district judge that JMOL

was inappropriate.

                Whether Echeverria Was Fully Heard

     Echeverria argues that he had not been fully heard on the

issue of liability before the district court entered judgment.

Echeverria maintains that he had planned to call several

additional witnesses on the issue of liability and to present

additional documentary evidence.       Echeverria contends that the

district court erred by failing to exercise restraint and by

entering judgment before he had completed his case.

     Rule 50(a) of the Federal Rules of Civil Procedure provides

for JMOL.2   This court reviews a district court’s entry of JMOL

de novo, applying the same standards that the district court



     2
      See FED. R. CIV. P. 50(a).

                                   4
applied and considering all the evidence in the light most

favorable to the party opposing the motion.3

     If during a trial by jury a party has been fully heard
     on an issue and there is no legally sufficient
     evidentiary basis for a reasonable jury to find for
     that party on that issue, the court may determine the
     issue against that party and may grant a motion for
     judgment as a matter of law against that party.4

In the instant case, the “issue” is liability.      The question is

whether Echeverria was “fully heard.”

     Rule 50(a) does not explain what “fully heard” means.     In

practice, a party has been fully heard when he rests his case.

This court has never addressed whether a district court may enter

JMOL in favor of the defendant before the plaintiff rests his

case.5   But in a similar case, this court vacated a JMOL where

the district court entered judgment in favor of the plaintiff

before the defendant had completed his case.6      The court

explained that the use of “‘proffered’ summaries of the evidence

[inhibits] this Court's review of whether a directed verdict was




     3
      See Bank of Saipan v. CNG Fin. Corp., No. 03-11053, 2004 WL
1759152 (5th Cir. Aug. 6, 2004), at *2 (to be published).
     4
      FED. R. CIV. P. 50(a)(1) (emphasis added).
     5
      See Galin Corp. v. MCI Telecommun. Corp., 12 F.3d 465, 468
(5th Cir. 1994) (treating a JMOL before the first witness was
called as a summary judgment that had been previously argued and
declining to address whether the plaintiff was fully heard for
Rule 50 purposes).
     6
      See FDIC v. Whitlock, 785 F.2d 1335, 1340 (5th Cir. 1986).

                                 5
proper.”7

     This court has periodically cautioned district courts about

jumping the gun to enter JMOL and instructed courts to exercise

“great restraint” before directing a verdict to avoid precluding

a party from presenting facts that establish a question for the

jury.8     Albeit in another context, the court has explained that

Rule 50 requires that the nonmoving party receive notice of the

purported deficiencies in his case and have an opportunity to

cure any defects prior to the entry of a JMOL.9     The court has

also indicated that “fully heard” means being “fully heard by the

jury.”10


     7
      See Whitlock, 785 F.2d at 1340.
     8
      See Buchanan v. City of San Antonio, 85 F.3d 196, 198 (5th
Cir. 1996); Whitlock, 785 F.2d at 1340; United States v. Vahlco,
720 F.2d 885, 889 (5th Cir. 1983).
     9
      See Bohrer v. Hanes Corp., 715 F.2d 213, 216 (5th Cir.
1983) (considering a judgment not withstanding the verdict and
explaining that Rule 50 requires that the nonmovant be alerted to
the insufficiency of his case and be given the opportunity to
cure any defects); see also Satcher v. Honda Motor Co., 52 F.3d
1311, 1315 (5th Cir. 1995) (reviewing the denial of a motion for
JMOL after jury returned verdict and excusing technical non-
compliance with Rule 50 because the purpose of the rule was met;
i.e., "to enable the trial court to re-examine the question of
evidentiary insufficiency as a matter of law if the jury returns
a verdict contrary to the movant, and to alert the opposing party
to the insufficiency before the case is submitted to the jury,
thereby affording it an opportunity to cure any defects in proof
should the motion have merit").
     10
      See Rutherford v. Harris County, 197 F.3d 173, 179 (5th
Cir. 1999) ("A court may grant a judgment as a matter of law if
after a party has been fully heard by the jury on an issue,
‘there is no legally sufficient evidentiary basis for a

                                   6
     As for other jurisdictions, the United States Court of

Appeals for the District of Columbia recently indicated that a

party has not been fully heard until he has submitted all of his

evidence and closed his case.11     That court explained that the

district court should not grant a motion for JMOL “unless the

nonmoving party has ‘been apprised of the materiality of the

dispositive fact and been afforded an opportunity to present any

available evidence bearing on that fact.’”12     The United States

Court of Appeals for the Sixth Circuit agrees and has indicated

that it is impossible for a reviewing “court to review whether,

when all reasonable inferences from the evidence are construed in

favor of the nonmoving party, a reasonable juror could find in

favor of the nonmoving party if he is precluded from presenting

the evidence he considers relevant.”13     When faced with a JMOL

entered mid-trial after the judge questioned the plaintiff about

his additional evidence, the court explained that an attorney’s




reasonable jury to have found for that party with respect to that
issue.’”) (citation ommitted); Aetna Cas. & Sur. Co. v. Pendleton
Detectives of Miss., Inc., 182 F.3d 376, 377-78 (5th Cir. 1999)
(same); Conkling v. Turner, 18 F.3d 1285, 1300 (5th Cir. 1994)
(same).
     11
      See Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1149
(D.C. Cir. 2004).
     12
      See Teneyck, 365 F.3d at 1149 (quoting the Advisory
Committee Note on the 1991 Amendment to Rule 50).
     13
          Jackson v. Quanex Corp., 191 F.3d 647, 657 (6th Cir.
1999).

                                   7
brief statements in response to a judge’s on-the-spot questions

does not afford a plaintiff a reasonable opportunity to be fully

heard within the meaning of Rule 50.14        The court explained that

Rule 50 contemplates a judgment based on “testimony and documents

submitted into evidence.”15        Although the court criticized the

presiding judge about matters not implicated in the instant

case,16 the court ultimately concluded that the judge took the

plaintiff’s attorney by surprise and precluded the plaintiff from

being fully heard.17        This court finds the reasoning of these

courts persuasive and adopts it today.

     Although the defendants-appellees in the instant case

contend that the district court may enter JMOL at any time, they

have no authority for that position.        While subsection (2) of

Rule 50(a) permits a party to move for JMOL “at any time” before

the case is submitted to the jury, that provision does not mean

the nonmoving party loses his opportunity to be fully heard under

subsection (1).

     The defendants-appellees maintain that Echeverria was fully

     14
      See Francis v. Clark Equip. Co., 993 F.2d 545, 555 (6th
Cir. 1993).
     15
          Francis, 993 F.2d at 555.
     16
      See Francis, 993 F.2d at 555 (criticizing the judge for
failing to apprise the plaintiff of the materiality of the facts
and issues he considered dispositive, and for failing to specify
the controlling law he was relying on to determine that the
plaintiff had failed to carry his burden of proof).
     17
          See id. at 556.

                                      8
heard, but the record indicates to the contrary.       Prior to trial,

Echeverria identified 30 witnesses.       His description of those

witnesses in the Joint Pretrial Order indicates that 15 of those

witnesses may have testified about liability.       Although

Echeverria’s attorney did not recite the names of those witnesses

when he was asked about his liability evidence, the attorney made

it clear that he was not finished with his case.       The district

judge knew that Echeverria had additional witnesses because he

signed the Joint Pretrial Order and asked about the rest of

Echeverria’s case.     Notably, the defendants-appellees did not

move for JMOL, probably because they understood that Echeverria

had not been fully heard on the issue of liability.

     Ultimately, the district judge may be right about the

sufficiency of Echeverria’s evidence on liability, but endorsing

a practice of prematurely entering judgment would circumvent Rule

50's requirement that a party be fully heard, and would require

this court to review a JMOL without all of the plaintiff’s

evidence.     Because the purpose of Rule 50 is, in part, to weigh

the sufficiency of the evidence before the case is submitted to

the jury,18 it is essential that the nonmoving party be permitted

to present all of its evidence.     Rule 50 is intended to shorten

and end needless trials,19 but that objective can be achieved by

     18
          See Satcher, 52 F.3d at 1315.
     19
      See Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 250
(1940).

                                   9
simply waiting until the plaintiff rests—at least, waiting until

the plaintiff rests on liability.     Consequently, the court

REVERSES the district court’s judgment and REMANDS the case for

further proceedings.    Having reached this determination, the

court need not reach Echeverria’s other arguments.

     Because there is no longer a final judgment in this case,

the court has no jurisdiction to consider the defendant-

appellant’s appeal of the district court’s ruling on its motion

for summary judgment.    Accordingly, the court DISMISSES that

appeal, No. 03-31046, for lack of jurisdiction.

Appeal No. 03-30924 REVERSED and REMANDED; Appeal No. 03-31046

APPEAL DISMISSED.




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