Nitco Holding Corp. v. Zareh Boujikian James B. Murray

In this appeal, we consider the implications of the Supreme Court’s recent decision in Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., 546 U.S. 394 , 126 S.Ct. 980 , 163 L.Ed.2d 974 (2006). Applying Unitherm, we conclude that a party procedurally defaults a civil appeal based on the alleged insufficiency of the evidence to support the verdict if it fails to file a post-verdict motion for judgment notwithstanding the verdict, under Fed.R.Civ.P. 50(b). We further conclude under Unit-herm that a procedurally barred sufficiency challenge is not subject to plain error review but is considered forfeited. Because a Rule 50(b) motion was not filed in this ease, we affirm the judgment of the district court.

I

Real estate agents Zareh Boujikian and James B. Murray entered into oral contracts with a third party, Dr. Dennis Streeter, for the payment of real estate commissions, to compensate for their assistance with a land transaction. Nitco Holding Corporation (“Nitco”), which had loaned a substantial amount of money to Streeter, sought and obtained a power of attorney that allowed it to act as Streeter’s agent in all negotiations related to the relevant land sale. After extended…