concurring in judgment.

I agree that the proper result in this case is to reverse the judgment as a matter of law and to remand for further proceedings. While the majority seems to hold that Rule 50(b) motions on remand should always be denied, I would simply say as a flat rule that litigants may not bring such motions following remand. While my approach may not differ from the majority’s from a practical standpoint, I believe it would save litigants and district courts the trouble of filing and adjudicating non-cognizable motions.

Provided it makes a motion for a directed verdict at the close of evidence, a party that loses at trial may under Rule 50(b) “renew its request for judgment as a matter of law by filing £ motion no later than 10 days after the entry of judgment.” Fed.R.Civ.P. 50(b); see also Collins v. City of San Diego, 841 F.2d 337, 342 (9th Cir.1988) (holding that “[i]f no motion for a directed verdict has been made, a motion for judgment notwithstanding the verdict has no legal effect”). The Advisory Committee Notes explain that “[a] post-trial motion for judgment [notwithstanding the verdict] may be granted only on grounds advanced in the.pre-verdict motion.” Fed.R.Civ.P. 50(b) advisory committee’s notes to 1991 amendment; see also Murphy v. City of Long Beach, 914 F.2d 183, 186 (9th Cir.1990) (same).

As our per curiam opinion makes clear, a 50(b) motion must be based on the entire trial record and, in ruling on the motion, the district court must base its decision on that entire record and cannot take into account the fact that a part of the evidence may have been improperly admitted. Per Curiam Op. at 4551-52; see also Schudel v. General Elec. Co., 120 F.3d 991 , 995 (9th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1560 , 140 L.Ed.2d 792 (1998). Unless the district court grants the 50(b) motion or the court of appeals holds that the losing party was entitled to prevail, the party against whom the verdict was rendered cannot obtain a judgment as a matter of law.

I believe that the plain import of this procedural scheme is that a party may not under any circumstances make a Rule 50(b) motion on remand. The reason for this conclusion is simple. As we have just explained, it is the full trial record on which a Rule 50(b) motion must be based. Nothing, therefore, is changed for purposes of such a motion when the court of appeals holds that a portion of the evidence at trial was improperly admitted'. Following remand, the district court would be faced with the identical ques *1210 tion that existed at the time at which, under the Federal Rules, a 50(b) motion must be made — within ten days after the entry of judgment. The losing party at trial must either make its Rule 50(b) motion shortly after the verdict or forfeit its opportunity to do so. If it has made such a motion and lost, there is no point in, or justification for, making it once again on remand. The district court has already ruled, and the losing party has either accepted that ruling by not appealing or the court of appeals has concluded that it is not entitled to judgment as a matter of law. If the losing party failed to make a Rule 50(b) motion within the time prescribed by the Federal Rules of Civil Procedure, it has forfeited that right and there is no reason, let alone provision of the Federal Rules, that would allow its revival on remand.

Because I believe that the district court should not have converted Howmedica’s “novel” motion into a 50(b) motion in the first place, I concur in the judgment reversing and remanding for a new trial.