United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 14, 2012 Decided July 31, 2012

No. 11-7066

KAREN FELD,

APPELLANT/CROSS-APPELLEE

v.

KENNETH FELD

APPELLEE/CROSS-APPELLANT

Consolidated with 11-7072

Appeals from the United States District Court

for the District of Columbia

(No. 1:08-cv-01557)

Steven M. Oster argued the cause for appellant/crossappellee. With him on the briefs was Christopher E. Hassell.

Jonathan S. Franklin argued the cause for appellee/crossappellant. With him on the briefs were John M. Simpson,

Matthew H. Kirtland, and Mark Emery. Joseph T. Small Jr., 

entered an appearance.

Before: HENDERSON, ROGERS, and GRIFFITH, Circuit 

Judges.
2

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge: Karen Feld sued her brother, 

Kenneth Feld, after he had her forcibly removed from the 

building in which he owned a condominium she was visiting. 

She appeals the district court’s judgment that Kenneth was 

entitled to use reasonable force to do so. For the reasons that 

follow, we affirm the judgment of the district court.

I

Karen and Kenneth Feld are estranged siblings.1 In 

September 2007, their aunt passed away. Despite their 

difficult history, Kenneth invited his sister to attend the shiva

— a Jewish mourning ritual — at the condominium he owned 

and where his aunt had lived, in the Colonnade, a high-rise 

condominium building in the Cathedral Heights neighborhood 

of Washington, D.C. On the second night of the shiva, Karen

began to feel ill and walked into the kitchen. When she 

headed towards the adjacent bedroom, Kenneth’s security 

guards blocked her way. Karen threw a wine glass at one of 

them and began screaming profanities. Kenneth ordered the 

guards to remove Karen from his condominium. She did not 

go willingly. Kenneth tried to calm Karen in the hallway

outside, but when she continued screaming and tried to hit

him, Kenneth told the guards to take her out of the building as 

well. One of the guards did so. 

 1 To avoid the confusion that may come from referring to the 

parties by the last name they share, we use their first names.
3

As relevant to this appeal, Karen sued Kenneth for 

assault, battery, and false imprisonment.2 Kenneth counterclaimed that Karen had trespassed on his property. On the eve 

of trial, in what was effectively a motion for summary 

judgment, Karen asked the court for judgment as a matter of 

law on her claims arguing that Kenneth had no right to 

remove her from the common areas of the building 

let alone use force to do so. Pl.’s Trial Br. 

11-13. The district court denied her motion, holding that

“[u]nder District of Columbia law, a condominium owner has 

an undivided interest in the common areas of a condominium 

building” and “no persuasive authority in the District of 

Columbia preclud[es] a condominium owner from using force 

to eject a trespasser from the building’s common areas.” 

Pretrial Order 4. 

At the close of evidence at trial, Karen did not renew her

legal argument about the use of force in a motion for 

judgment as a matter of law under Rule 50(a) of the Federal 

Rules of Civil Procedure. The case went to the jury, which 

found against Karen on her claims and against Kenneth on 

his. Neither party filed for relief under Rule 50(b). On appeal, 

Karen concedes that Kenneth could lawfully remove her from 

the common areas of the building but challenges the district 

court’s determination that he could use force to do so.

Kenneth filed an appeal conditioned on our reversing the 

judgment against Karen. Because we affirm the district court, 

we need not address his arguments.

 2 She also sued Feld Entertainment Inc., of which Kenneth is 

Chairman and Chief Executive Officer, on the same grounds. Karen 

dismissed her claims against the company before trial. 
4

II

As we will ultimately show in only a sentence or two

below, Karen’s appeal is without merit and easily rejected. 

But before we can reach the merits of any appeal, we must be 

assured of our jurisdiction, Dominguez v. UAL Corp., 666 

F.3d 1359, 1362 (D.C. Cir. 2012), which Kenneth challenges.

He contends that we cannot consider Karen’s argument that 

D.C. law does not permit a condominium owner to use force 

to exclude another from the building’s common areas because 

she failed to press that point, rejected at summary judgment,

in a Rule 50 motion. Karen counters that she was not required 

to raise the issue again because it presents a purely legal 

question. 

It is true that we are powerless to review a challenge to 

the legal sufficiency of evidence that was rejected at summary 

judgment and not brought again in a Rule 50 motion. Ortiz v. 

Jordan, 131 S. Ct. 884, 892 (2011); Unitherm Food Sys., Inc. 

v. Swift-Eckrich, Inc., 546 U.S. 394, 405 (2006). But the 

Supreme Court has left open the question whether the same 

rule applies to preserving “purely legal” arguments that were 

rejected at summary judgment. See Ortiz, 131 S. Ct. at 892 

(declining to address this issue as unnecessary to the holding). 

At least six circuits have said it does not. See Houskins v. 

Sheahan, 549 F.3d 480, 489 (7th Cir. 2008); Banuelos v. 

Constr. Laborers’ Trust Funds for S. Cal., 382 F.3d 897,

902-03 (9th Cir. 2004); Rothstein v. Carriere, 373 F.3d 275, 

284 (2d Cir. 2004); United Techs. Corp. v. Chromalloy Gas 

Turbine Corp., 189 F.3d 1338, 1344 (Fed. Cir. 1999); 

McPherson v. Kelsey, 125 F.3d 989, 995 (6th Cir. 1997); 

Ruyle v. Cont’l Oil Co., 44 F.3d 837, 841-42 (10th Cir. 1994). 

We agree.
5

The rationale for requiring a Rule 50 motion does not 

apply to purely legal questions. A Rule 50 motion preserves 

for appeal a challenge to the legal sufficiency of the evidence 

because the denial of summary judgment is not the final word 

on that question, Ortiz, 131 S. Ct. at 891, but merely “a 

prediction that the evidence will be sufficient to support a 

verdict in favor of the nonmovant,” Chemetall GMBH v. ZR 

Energy, Inc., 320 F.3d 714, 718 (7th Cir. 2003). The accuracy 

of that prediction becomes irrelevant once trial has occurred

because “the full record developed in court supersedes the

record existing at the time of the summary judgment motion.” 

Ortiz, 131 S. Ct. at 889. In other words, once evidence is 

presented at a trial, any challenge to evidentiary sufficiency at 

summary judgment becomes moot. See Rekhi v. Wildwood 

Indus., Inc., 61 F.3d 1313, 1318 (7th Cir. 1995) (“[T]he 

principle that an order denying summary judgment is rendered 

moot by trial and subsequent judgment on the merits is 

intended for cases in which the basis for the denial was that 

the party opposing the motion had presented enough evidence 

to go to trial.”). On appeal, there would be no reason to “step 

back in time” to determine whether the evidence was 

sufficient for summary judgment. Chemetall, 320 F.3d at 719.

That question has been overtaken by events — the trial. 

But this justification does not apply when the district 

court rejects a purely legal argument at summary judgment. 

Had Karen raised her legal argument again in a Rule 50 

motion, the district court would have been faced with 

precisely the same question she raised before trial. No 

changed facts or credibility determinations at trial could alter

whether D.C. law permits a condominium owner to use force 

to exclude another from the building’s common areas. See 

Wilson v. Union Pac. R.R. Co., 56 F.3d 1226, 1229 (10th Cir. 

1995) (“A critical distinction exists between summary 

judgment motions raising the sufficiency of the evidence to 
6

create a fact question for the jury and those raising a question 

of law that the court must decide. Where a motion for 

summary judgment based on an issue of law is denied, 

appellate review of the motion is proper even if the case 

proceeds to trial and the moving party fails to make a 

subsequent Rule 50 motion.” (citation omitted)).

At least two circuits have taken the opposite approach 

and require a Rule 50 motion to preserve for appeal any issue 

first raised in a motion for summary judgment. See Ji v. Bose 

Corp., 626 F.3d 116, 128 (1st Cir. 2010); Chesapeake Paper 

Prods. Co. v. Stone & Webster Eng’g Corp., 51 F.3d 1229, 

1235 (4th Cir. 1995).

3

 3 The Fifth and Eighth Circuits appear not to have settled on a 

position. Compare Becker v. Tidewater, Inc., 586 F.3d 358, 365 n.4

(5th Cir. 2009) (embracing the “purely legal” exception), and White 

Consol. Indus., Inc. v. McGill Mfg. Co., 165 F.3d 1185, 1190 (8th 

Cir. 1999) (same), with Black v. J.I. Case. Co., 22 F.3d 568, 571 

n.5 (5th Cir. 1994) (rejecting it), and Metro. Life. Ins. Co. v. Golden 

Triangle, 121 F.3d 351, 354 (8th Cir. 1997) (same). 

The Fourth Circuit has explained that 

the distinction we make would require courts “to engage in 

the dubious undertaking of determining the bases on which 

summary judgment is denied and whether those bases are 

‘legal’ or ‘factual.’” Chesapeake, 51 F.3d at 1235. It is no 

doubt true that determining whether an issue is based in law 

or fact or some combination of the two is sometimes 

“vexing,” Pullman-Standard v. Swint, 456 U.S. 273, 288 

(1982), and prudent counsel will make sure to renew their

arguments in a Rule 50 motion. But it is equally true that 

there are cases in which it is clear the appellant has raised a 

pure issue of law, divorced from any dispute over the facts.

See Chemetall, 320 F.3d at 719-20. And there is no question 

that the issue here was purely legal. Whether D.C. law 

permits a condominium owner to use force to exclude another

individual from the building’s common areas does not depend 
7

on the record and turns on no facts. Karen’s pretrial motion

presented the issue as a “question of law,” Pl.’s Trial Br. 11, 

and the district court treated it as such. After reviewing 

statutes and cases, the district court held that D.C. law permits

a condominium owner to use reasonable force in ejecting a 

trespasser from the common areas of a condominium

building. Pretrial Order 4. Nothing took place at trial that 

would have required the district court to revisit its analysis.

Kenneth raises an additional reason to require a Rule 50 

motion. Had Karen made such a motion and succeeded, 

Kenneth could have put on evidence that the Colonnade had 

actually authorized his use of force. But Kenneth has lost no 

opportunity to present relevant evidence. Were we to agree 

with Karen’s view of the law, the district court would be free 

to permit additional discovery as necessary on remand. 

We conclude that we have jurisdiction to hear Karen’s 

legal argument because we hold a Rule 50 motion is not 

required to preserve for appeal a purely legal claim rejected at 

summary judgment.

As we forecast at the outset, the merits of Karen’s appeal 

are straightforward. She concedes that Kenneth could remove

her from the common areas (an argument she lost at the 

district court), but maintains that he was not privileged to use 

force in doing so. Appellant’s Reply Br. 15-16. This position 

is untenable. Under District of Columbia law, the right to 

exclude another from one’s property includes the right to use 

reasonable force. See Person v. Children’s Hosp. Nat’l Med. 

Ctr., 562 A.2d 648, 650 (D.C. 1989) (“[W]e now adopt the 

rule . . . that a possessor of land has a qualified privilege to 

use force to remove someone else from the property.”).

Contrary to Karen’s argument, given the findings of the 

district court, we have no reason to conclude that the District 
8

of Columbia Court of Appeals would carve out an exception 

to this rule for condominium owners who seek to exclude 

persons from common areas. See Shaw v. Marriot Intern., 

Inc., 605 F.3d 1039, 1042-43 (D.C. Cir. 2010) (“Our 

duty . . . is to achieve the same outcome we believe would 

result if the District of Columbia Court of Appeals considered 

this case.”).

III

For the foregoing reasons, the district court’s judgment is 

Affirmed.