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SL 270850.1
As with Fed. R. Civ. Proc. 50 discussed above, Rule 41(b) also is the subject of an
amendment which is expected to take effect shortly. The Judicial Conference of the United
States has proposed an amended Rule 41(b), as well as a related amended Rule 52, to the
Supreme Court for its approval and transmittal to Congress. The amended rules are scheduled to
become effective December 1, 1991, absent Congressional action to the contrary.
The amendment to Rule 41(b) deletes the language which had made that rule a vehicle
for terminating a non-jury action on the merits when the plaintiff had failed to carry its burden of
proof in presenting its case. Under the amended rules, that subject now is to be covered by
amended Fed. R. Civ. Proc. 52(c), which provides as follows:
(c) JUDGMENT ON PARTIAL FINDINGS. If during a trial without a jury a
party has been fully heard with respect to an issue and the court finds against the party on
that issue, the court may enter judgment as a matter of law against that party on any
claim, counterclaim, cross-claim or third-party claim that cannot under the controlling
law be maintained or defeated without a favorable finding on that issue, or the court may
decline to render any judgment until the close of all the evidence. Such a judgment shall
be supported by findings of fact and conclusions of law as required by subdivision (a) of
this rule.
Amended Rule 52(c) parallels amended Rule 50(a) discussed previously, but applies to
non-jury trials. As with Rule 50(a), Rule 52(c) is not intended to change the substantive
standards applicable to motions for judgment, but expands the time frame within which such a
motion may be made. It authorizes the court to enter judgment at any time during the course of
the trial that it can appropriately make a dispositive finding of fact on the evidence.
Of course, application of these rules pre-supposes that the party against whom an issue is
going to be resolved has had a full opportunity to present its case on that issue. As the Advisory
Committee Note to proposed Rule 50(a) states: “Early action is appropriate when economy and
expedition will be served. In no event, however, should the court enter judgment against a party