Lead Opinion
OPINION OF THE COURT
Thе complaint in this suit was filed by Booth Bottling Company, Inc. (Booth) on June 5, 1970.
Pepsi
The issue presented is whether the judgment N.O.V. is valid because of the absence of a motion by Pepsi for directed verdict at the close of all evidence. This question was noted by this Court before the argument and briefs on this specific point were requested and filed by the parties. The issue was also argued in open court. We conclude that the judgment N.O.V. is not valid for the reasons stated hereinafter.
Rule 50(b) requires that, as one predicate to judgment N.O.V., a motion for a directed verdict be made after presentation of all the evidence. It is clear from the record that this prerequisite for a judgment N.O.V. was not fulfilled. In Beebe v. Highland Tank and Manufacturing Company,
Moore sets forth the rationale for requiring a motion for directed verdict at the conclusion of all evidence as follows: “To ask the court to enter a judgment, contrary to a general verdict of the jury where no motion for a directed verdict has been interposed, is simply to ask the court to re-examine the facts already tried by the jury, and this the court may not do without violating the Seventh Amendment.” [quoting, Mutual Ben. Health & Accident Ass’n v. Thomas,
“There is a better reason for establishing the motion for directed verdict as a condition preсedent to a motion for judgment n. o. v. This is to avoid making a trap of the latter motion. At the time that a motion for directed verdict is permitted, it remains possible for the party against whom the motion is directed to cure the defects in proof that might otherwise preclude him from taking the case to the jury. A motion for judgment n. o. v., without prior notice of alleged deficiencies of proof, comes too late for the possibility of cure except by way of a complete new trial. The requirement of the motion for directed verdict is thus in keeping with the spirit of the rules to avoid tactical victories at the expense of substantive interests.” 5A Moore’s Federal Practice § 50.08, at 2358-59 (1975). See also Follette v. National Tea Co.,
Pepsi relies upon its request for charge as bridging the gap created by its failure to renew its directed verdict motion under Rule 50(b). Pepsi requested binding instructions, but it is clear that a request for such instructions, which the district court neither treated nor ruled upon as it would treat with or rule upon a motion for directed verdict, compare Psinakis v. Psinakis,
The prоvisions of the rule are clear. The lock has a large visible keyhole and the key to turn the lock is as plainly described as we believe to be possible. The rule has been in effect for a very considerable length of time. We do not see any reason to obfuscate a plain rule by adding a gloss to it to aid those who, for reasons unknown to us, have not seen fit to follow it.
We note also that the learned Distriсt Judge has not made any disposition of the timely motions for new trial or to alter or amend the judgment.
The judgment N.O.V. will be reversed and the case remanded with the discretion to proceed in a manner consistent with this opinion.
Notes
. On January 28, 1976, Beverages International, Inc. and Crush International, Inc., two of the original defendants, moved to have their names deleted from the caption of this action. Since it appears from the record that, on November 5, 1973, plaintiffs motion for voluntary dismissal as to these parties was granted with prejudice, we see no reason to deny the motion to delete.
. Pepsi was joined in this motion by the other defendant still in the case, Canada Dry Delaware Valley Bottling Company. The jury’s finding of no liability as to the latter is not contested here. Subsequent discussion will make no reference to Canada Dry.
. As to the contract-breach count, on November 29, 1973, in chambers Pepsi orally moved that the jury be instructed that Pepsi had the right as a matter of law to terminate the contract. The Court stated in reply: “I think I shall have to rule on your Points for Charge before you start your summation.” Tr. 17-6, App. 1069. Pepsi argues that this motion and its points for charge also can be construed as, in effect, a motion for directed verdict. See discussion infra.
. Rule 50(b) provides: “Motion for Judgment Notwithstanding the Verdiсt. Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Not later than 10 days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment enterеd thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned such party, within 10 days after the jury has been discharged, may move for judgment in accordance with his motion for a directed verdict. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned the court may allow the judgment tо stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial.” (emphasis supplied).
. We do not question the power of a district court to treat with a binding request for charge as though it was a motion for directed vеrdict. Where that situation occurs and the district court, with the knowledge of all parties, treats with and rules upon a binding request for charge as a motion for directed verdict, the necessary predicate for judgment N. O. V. has been provided. This, of course, was not the situation in the instant case.
. In Massaro, the request was made before the introduction of any evidence and was less specific than the request here. However, the same constitutional and curе considerations discussed supra are applicable here and in Massaro. Without the notice of evidentiary paucity, a court in its N.O.V. determination runs the risk of substituting itself for the trier of fact and of preventing the adverse party from employing evidentiary cure, if necessary.
In the welter of a long and complex trial such as this, the constitutional and cure concerns discussed supra demand careful scrutiny of the reasons for taking issues from the jury. This should be undertaken when all the evidence is before the court.
. The cases rеlied on by Pepsi are not in this Circuit. One such is Jack Cole Co. v. Hudson,
“There can be no doubt that the trial judge was well aware of the reasons for the requested jury instruction, and, under the circumstances, we hold that this constitutes a sufficient predicate for the subsequent motion for judgment notwithstanding the verdict.” (citation omitted). See also 9 Wright & Miller, Fed.Prac. & P. § 2537 n. 32 (Supp.1975). While the dissent reads this recital as indicating that requests for charge were sought, we find the factual statement in Cole much less clear. We treat Cole as a case where the defendants requested a directed verdict. In any event, the district judge in Cole apparently treated the defendants’ request as a motion for directed verdict, which would satisfy Rule 50(b). Such is not our case. In this Circuit we think the constitutional and procedural issues are so important that we are unwilling to make the supposition that the bench and the adverse party have sufficient notice. See note 6 supra.
. “Where the judgment n. o. v. is reversed, and the trial court has granted the motion for a new trial, the case will ordinarily be remanded to the trial court for a new trial in accordance with that court’s action on the motion for a new trial. But the courts of appeals have authority to order ‘otherwise’. This means, among other things, that the appellate court may reverse the grant of a new trial and order entry of judgment on the verdict. Or, it may remand the case to the trial court for that сourt to consider the motion for new trial in light of the disposition by the court of appeals of the judgment n. o. v. This latter practice has also developed where the trial court has failed to rule on a motion for new trial and the appellate court reverses the judgment n. o. v. But some courts have held that the motion for a new trial is abandoned if not pressed on the trial court after the grant of judgment n. o. v.” (Notes omitted and emphasis supplied). 5A Moore’s supra § 50.14, at 2382-83, 2383 nn. 8, 9. “In Mays v. Pioneer Lumber Corp.,
. We do not reach the other contentions raised by the parties. To the extent they are relevant, they may be raised on remand.
Dissenting Opinion
(dissenting):
I respectfully disagree with the majority’s determination that the judgment
I do not, of course, question the rule of Beebe v. Highland Tank and Manufacturing Co.,
It is important to note that defendant here did make a motion for directed verdict at the end of plaintiff’s case, and that this motion was formal, detailed and hotly contested. At the conclusion of all the evidence, while there was admittedly no “formal” renewal of the motion for directed verdict, defendant did submit “Requested Points for Charge” which began with the words
1. “You are directеd to enter a verdict in favor of defendants.”
Since this request can fairly be read as incorporating the specific grounds
“(Renewal of) Motion for Directed Verdict”
To me, this “defect” is of insufficient substance to justify a further delay in the consideration of the merits of this already protracted litigation. I would hold that there has been adequate compliance with Rule 50(b).
There is no decision of this court clearly resolving the issue of whether the court of appeals may find compliance with Rule 50(b) on the basis of 1) a motion for directed verdict after the plaintiff’s case and 2) a request for binding jury instructions at the close of all the evidence, where the trial judge has not expressly treated the latter request as a renewal of the motion for directed verdict.
In Jack Cole Co. v. Hudson,
In the absence of contrary Third Circuit precedent, I would adopt Jack Cole and apply it to this case, since in my view of the district court proceedings, “[tjhere can be no doubt that the trial judge was well aware of the reasons for the requested jury instruction, and, under the circumstances, . this constitutes a sufficient predicate for the subsequent motion for judgment notwithstanding the verdict.” Id.,
As to the plaintiff’s notice of the defendant’s stance, three factors are persuasive. First, it. would hardly have been reasonable for the plaintiff to assume that the defendant would inexplicably abandon its earlier vigorous contentions that the evidence was insufficient to make out a jury case.
As to the trial judge’s notice of defendant’s renewal of the mоtion for directed verdict, we have one unambiguous passage in the record. During argument prior to the charge, counsel for plaintiff pressed for inclusion of a particular element of damages:
[Counsel for Plaintiff]: .
If the Court later decides that wasn’t a proper element of damages, you can cut it out very easily.
The Court: We still have N.O.V.
N.T. 18-115.
Even if I were not convinced by this record that plaintiff and the district court understood that defendant had preserved its objections to the sufficiency of the evidence, I could not join the majority. In Psinakis v. Psinakis,
*14 I direct you to find that [plaintiff] has not sustained its burden to prove by a preponderance of the evidence that either defendant or both conspired with each othеr or anyone else to violate the Sherman Act.
*15 [T]he courts take a liberal view of what constitutes a motion for directed verdict in deciding whether there was a sufficient prerequisite for the motion for judgment.
9 C. Wright & A. Miller, Federal Practice and Procedure, § 2537 at 596-97 (1971) (collecting cases).
While I might agree that “[t]he Third Circuit’s rulings on this procedural question are not entirely clear,” Huddell v. Levin,
The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
Fed.R.Civ.P. 61.
For the foregoing reasons, I would reach the merits of the motion for judgment N. O. V. However, since the majority disagrees and leaves open the possibility of a new trial, and thus perhaps a new appeal, I believe that it would be inappropriate to state my views on the merits.
. Fed.R.Civ.P. 50(a) requires that a motion for directed verdict state the specific grounds therefor.
. I do not read the majority opinion as taking the position that its result is required by any Third Circuit case on point.
. See also, Roberts v. Pierce,
. Plaintiff has not suggested that the defendants’ witnesses “cured” the alleged deficiencies in plaintiff’s case so as to explain such an abandonment.
. Requested point for charge number 3:
. I do not mean to suggest that any doctrine of waiver could vitiate the rule in Beebe.
However, plaintiff’s failure to object, prior tо the raising of the Rule 50(b) issue by this court, to consideration of the merits of the motion for judgment N. O. V. does indicate that the concern voiced by the majority, p. 11, that less-than-strict compliance with Rule 50(b) may result in surprise or a “trap” for the opposing party, is utterly groundless in this case.
Even in its supplemental brief on this issue, plaintiff has not suggested any way in which it was lulled, “trapped” or otherwise prejudiced by the procedural irregulаrity.
. The published opinion does not indicate whether or not a formal, specific motion for directed verdict was made earlier.
. Accord, Huddell v. Levin,
. In Brandon v. Yale & Towne Mfg. Co.,