Wilbur R. MсLAUGHLIN and Betty McLaughlin, his wife, v. The FELLOWS GEAR SHAPER COMPANY. Appeal of Hermann PFAUTER.
No. 85-1327
United States Court of Appeals, Third Circuit
Argued Jan. 7, 1986. Decided March 24, 1986.
MANSMANN, Circuit Judge.
IV
On remand, the district court will take evidence on and resolve the issue of whether Taxpayer waived his right to a notice of deficiency. If he did not, the court will determine whether a basis for equitable relief has been established. If so, appropriate relief should be granted under Section 6213(a).
Because the Service is entitled to judgment on a Williams Packing claim if it demonstrates that it has a position which it can litigate in good faith, it is normally not necessary that such claims be tried. On remand, the district judge may be able to dispose of Taxpayer‘s Williams Packing claim through summary judgment proceedings or on the basis of a proffer by Taxpayer and a responsive proffer by the Service. Since the Taxpayer‘s Section 6213(a) claim will necessitate a trial of issues that will also be relevant to the Williams Packing claim, however, the trial court may choose to wait аnd rule upon the latter claim based on the record developed at the evidentiary hearing. We leave that to the district court‘s discretion.
The judgment below will be vacated and this case will be remanded for further proceedings consistent with this opinion.
Norbert F. Bergholtz (argued), Jean Wegman Burns, Frank J. O‘Hara, Dechert Price & Rhoads, Philadelphia, Pa., for appellants.
Joseph Lurie (argued), Albert B. Gerber, Galfand, Berger, Senesky, Lurie & March, Philadelphia, Pa., for appellee.
Before ADAMS, SLOVITER and MANSMANN, Circuit Judges.
MANSMANN, Circuit Judge.
I.
This is a Pennsylvania diversity action in which plaintiffs were successful in recovering damages under the strict liability theory of Section 402A of the Restatement of Torts for personal injury caused by defectively designed machinery. On appeal, defendants have raised several trial errors, chiefly, that the district court erred in resubmitting the foreseeability issue to the jury and in sua sponte setting aside the jury‘s finding of assumption of the risk. Finding no merit in any of the allegations raised, we affirm.
II.
This product liability action arose from an accident in which Wilbur McLaughlin suffered the amputation of his left thumb when he was preparing a Gear Hobbing Machine for use. The particular machine McLaughlin was preparing was a Pfauter Model P-900 hobber, manufactured by defendant Hermann Pfauter and sold to McLaughlin‘s employer by defendant Fellows Gear Shaper Company (Fellows).1
A hobbing machine is a milling machine used to cut teeth into cylindrical steel pieces which will become gears. The machine involved is designed for automatic, high-speed operation. It is equipped with adequate pinchpoint guarding during automatic operation. Before actually operating the machine, however, the worker must prepare or “set-up” the machine by making certain adjustments to the machine to ensure that the correct size gear is produced. Bеcause precise adjustments are required, it is necessary for the worker to have access to the dangerous cutting surface area. The “set-up” procedure also involves jogging the machine manually, that is, causing the machine to rotate briefly. During the “set-up” operation the machine is in the manual mode.
The plaintiffs’ theory at trial was that the Pfauter gear hobber was defective and unsafe since it did not have an automatic interlock or two-handed control switch which could be used during the manually operated “set-up” procedure. Defendants presented a two-pronged defense: first, defendants maintained that the machine was not defective because an automatic interlock was not necessary during the “set-up” stage when the machine was being operated manually and second, the defendants argued that McLaughlin had assumed the risk.
At the conclusion of the evidence the district court submitted five interrogatories to the jury covering the issues of the case. The interrogatories and the jury‘s answers were as follows:
- When the hobbing machine was delivered to LinkBelt (now P.T. Components), was it in a defective condition rendering it unsafe for its intended use? Yes X No
- If so, was the defective condition of the hobbing machine a proximate cause of the accident and plaintiff‘s injury? Yes X No
- Was it foreseeable to the manufacturer that operators would, on occasion, stand on the machine while carrying out the setting-up process? Yes ___ No X
- Did plaintiff assume the risk? Yes X No
- (To be completed only if your verdict is in favor of plaintiffs.) We, the jury, award damages as follows: Mr. McLaughlin $100,000 Mrs. McLaughlin $20,000
Upon learning the jury‘s answers, defendants moved for entry of judgment in their favor, and plaintiffs moved for a mistrial. The district court denied both requests. Instead, the court submitted two additional questions to the jury to clarify the foreseeability question, in particular, to determine the effect of McLaughlin‘s standing on the machine during the time it was being set up for operation. The supplemental interrogatories and answers were as follows:
3(a) Was the fact that plaintiff stood on the machine a substantial factor in causing the accident? Yes ___ No X
(b) Was it the sole cause of the accident? Yes ___ No X
After ascertaining that the jury was unanimous in its answers to these supplemental interrogatories, the district court asked the following questions of the jury in open court and received the following responses:
THE COURT: Finally, members of the jury, by the answers that you have given, is it your intention to find in favor of the plaintiffs or in favor of the defendants? Can somebody state what you have in mind?
[THE FOREPERSON] Plaintiff.
THE COURT: You all agree you intend to find in favor of the plaintiffs in the sum of $120,000?
(The jury answered in the affirmative.)
Subsequently, the district court set aside the jury‘s finding of assumption of the risk and entered judgment in favor of the plaintiffs in the amount of $135,879.45, including delay damages. Defendants’ subsequent motions for judgment notwithstanding the verdict and for a new trial were denied by the district court.
III.
Defendants’ first argument faults the procedural course of the case. Specifically, defendants contend that the district
A. Rule 49(b)
The district court, following the procedures authorized in
When assessing these jury findings, the district court observed in its May 1, 1985 opinion:
Obviously, these answers were inconsistent with each other. Under the instructions of the court, the jury could not have found in favor of the plaintiffs and thus awarded them damages, while at the same time finding that plaintiff had assumed the risk. And it was equally apparent that the true import of the jury‘s answеr to the third question could not be determined, because of the unfortunate incompleteness in the wording of the question. The finding that plaintiff‘s “misuse” of the machine was not foreseeable would absolve the defendants from liability if, but only if, there was a causal connection between the manner in which plaintiff was conducting the set-up operation, (i.e., the misuse of the product) and the happening of the accident—and the jury had not been asked to make a finding on that subject.
Accordingly, at the time of trial, the district court submitted to the jury two supplemental interrogatories in order to clarify the effect of McLaughlin‘s standing on the
I propose to submit a Question 3(a) to clarify that question of standing on the machine as follows: 3(a): “Was the fact that plaintiff stood on the machine a substantial factor in causing the accident?” And a further question, “Was it the sole cause of the accident?” If they find it was the sole cause of the accident, and it was not foreseeable, then I think certainly it is a defendants’ verdict. And obviously if their finding of assumption of risk stands up that would be a defendants’ verdict. But if they find it was not a sole cause of the accident and if the Court sets aside the assumption of risk finding then that would be a verdict for the plaintiff.
Defendants complain that the district court was required by the Seventh Amendment to reconcile the inconsistencies in the original five jury interrogatories. Moreover, defendants contend that the answers to these five interrogatories were not inconsistent, that they could be reconciled and that a defense verdict was mandated.
In Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 82 S.Ct. 780, 7 L.Ed.2d 798 (1962), the Supreme Court of the United States held:
Where there is a view of the case that makes the jury‘s answers to special interrogatories consistent, they must be resolved that way. For a search for one possible view of the case which will make the jury‘s finding inconsistent results in a collision with the Seventh Amendment.
Id. at 364, 82 S.Ct. at 786. Such a holding was required, reasoned the Court, since facts as found by the jury cannot be redetermined by a court. Id. at 359, 82 S.Ct. at 783. In support of its position, the Court cited the Seventh Amendment which mandates that “no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.” Id. at 359, 82 S.Ct. at 783.
In the case before us, however, the answers are inconsistent on their face and cannot be read to be consistent. Answers to the first and second questions are inconsistent with the answers to the third and fourth questions. Moreover, the answers to the third and fourth questions arе inconsistent with the general verdict in favor of plaintiffs. Recognizing this, the district court gave the jury further instructions and two supplemental questions and asked it to return for further deliberations.3 The district court did not redetermine the facts as found by the jury but rather asked the jury to reconsider its decision. In this there can be no Seventh Amendment violation.
Moreover, the decision to seek clarification from the jury in order to resolve the apparent conflict in the answers to the five original interrogatories is precisely what
When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, the court shall not direct the entry of judgment but may return the jury for further consideration of its answers and verdict or may order a new trial. (emphasis supplied).
In Stanton v. Astra Pharmaceutical Products, 718 F.2d 553 (3d Cir.1983), we reviewed the provisions of
The defendant appealed, arguing that the questions were submitted under
Considering the defendant‘s
Although the Stanton case involves resubmission to the jury of the same questions and the case under review presently involves resubmission of supplemental interrogatories, the underlying purpose of both options is identical: namely, to obtain clarification from a still-empaneled jury of the meaning of its answers and verdict. Interestingly, we did identify and endorse in Stanton the option of submitting supplemental interrogatories to harmonize inconsistent jury responses. To this end, we cited to the following language from a decision by the United States Court of Appeals for the Fifth Circuit:
It would be anomalous to hold that, while a court pursuant to
Rule 49(a) must search for a view of the case which will make the jury‘s answers consistent, it may not submit an additional interrogatory to the jury to clarify an ambiguity.
Stanton, supra, at 575, citing Morrison v. Frito-Lay, Inc., 546 F.2d 154, 161 (5th Cir. 1977).
We conclude, therefore, that the district court can be found neither to have erred when it determined that the answers to the interrogatories were inconsistent and non-reconcilable nor to have abused its discretion in submitting supplemental interrogatories to the jury in order to resolve the apparent inconsistencies and to clarify the answers given to the original five interrogatories.
B. Judgment N.O.V.
To reiterate, the district court set aside the jury‘s finding on assumption of the risk and entered judgment for plaintiffs. Defendants view this action on the part of the court as an entry of judgment n.o.v. in favor of plaintiffs on the assumption of risk issue. Thus, defendants claim that procedurally under the Federal Rules, in order to be entitled to a judgment n.o.v., the moving party, plaintiffs herein, first must have made a motion for directed verdict on the issue in question. Defendants argue that substantively there is more than enough evidence in the record to support the jury‘s finding of assumption of risk.
We have reviewed the district court‘s entire charge to the jury, especially that portion dealing with assumption of risk, and conclude that the court fully explained the legal principles which the jury was to apply in rendering its decision. We must assume that the jury, hearing all of this, understood the charge and accordingly returned a verdict for plaintiffs. Having received a verdict in their favor, plaintiffs were not in a position to be seeking judgment n.o.v.4 under
It is, therefore, immaterial that plaintiffs failed to file a motion for dirеcted verdict.
Regarding defendants’ substantive argument, we conclude that the evidence in the record was not sufficient to sustain the jury‘s findings of assumption of risk, and so the district court was justified in setting aside this finding and entering judgment on the general verdict rendered by the jury in favor of plaintiffs.
A similar issue was presented to us in Elder v. Crawley Book Machinery Company, 441 F.2d 771 (3d Cir.1971), also a Pennsylvania diversity case brought under Section 402A of the Restatement of Torts. In Elder, the plaintiff severed two fingers from her left hand while preparing a Building-In Machine for the day‘s workload. Plaintiff contended that the machine was defectively designed, and the defendant pressed the defense of assumption of the risk.
After reviewing the law with regard to assumption of the risk, we concluded “[T]hat if plaintiff‘s fingers were placed in a dangerous position in the machine by reason of inadvertence, momentary inattention or diversion of attention, that would not amount to assumption of the risk.” Id. at 774. As we noted in Elder, thе Restatement‘s definition of the doctrine of assumption of the risk “makes it clear that the law envisions a conscious appreciation of danger and a willingness to risk it.” Id. at 773. See also Burch v. Sears Roebuck and Co., 320 Pa.Super. 444, 467 A.2d 615, 619, (1983), (when plaintiff places himself in a position of danger, while consciously aware and appreciating the danger, and not as a result of momentary inattention or inadvertence, he may be found to have assumed the risk, thus precluding liability); Section 496 Restatement of Torts (Second).
We conclude that there was no evidence presented from which a jury could conclude that McLaughlin consciously or willingly accepted the risk of having his thumb amputated. McLaughlin had worked on a regular basis on the gear hobber as a machine operator for thirteen or fourteen years. From his testimony it is clear that McLaughlin believed his left hand was in a safe position when he activated the lever lowering the tail stalk with his right hand. It was his usual practice to position his hands on the machine as he did on the day of the accident. Giving an account of the accident, McLaughlin testified as follows:
... I was holding myself with my left hand out like this, I seen I was high and I reached over with my right hand and looked over to see where the lever was, I reached over, I pulled the lever and when I pulled the lever to bring it down I felt pain and I jumped back to
the floor. I looked out at my hand and I saw my thumb was missing. And I realized the terrible, terrible thing had happened. I lost my thumb. That is all it was, I lost it. I looked up and I seen my thumb stuck between the journal, the sticker, lower journal and the journal, it was riding on. It was stuck between the outboard—stuck between the tail stalk and bushing and the tail stalk and the journal.
Q. What was the position of your left hand when you went to operate the lever?
A. It was resting аgainst the piece, wherever it was resting. I used that like a post to rest myself and balance myself up here. It is the best place to put your hand because over here you would cut your hand on the hob and that is too high to reach. So I always put my hand out on the shaft that I am working on. I was balancing myself like this and I had my hand out like that below where I was working and I could see where I have got to do and seen I had to bring it down and knowing I had to bring it down the quickest way to bring it down was to reach right over and get it. I reached over and got it and brought it down.
Q. At that time were you aware that your left hand was in a pinch point position?
A. No, sir, it was not in a pinch point position. It was down below the pinch point position.
Q. But, nevertheless, your left hand was indeed amputated.
A. Yes sir.
Q. Your left thumb?
A. My left thumb was amputated.
On cross McLaughlin reaffirmed his belief that his left hand was in a safe place when he activated the machine.
We are in agreement with the summation affоrded by the district court on this point:
There [is] ... no evidence to suggest that plaintiff knowingly or intentionally placed his thumb in a position of danger; rather, it [is] clear that plaintiff thought his hand was in a safe position, became preoccupied with what he was doing, and inadvertently allowed his thumb to reach a point of danger.
The finding by the jury on the assumption of the risk issue was contrary to the evidence, and it was, therefore, appropriately set aside by the district court. Moreover, it was appropriate for the district court to enter judgment in favor of plaintiffs.
IV.
Defendants also raise in this appeal three other issues; specifically, 1) that the district court erred in concluding that the Gear Hobbing Machine was unreasonably dangerous; 2) that the district court erred in refusing to instruct the jury on the issue of comparative causation; and 3) that the district court erred in permitting Dr. Carl A. Silver to testify as an expert witness on the design of the Gear Hobbing Machine. We find no merit in any of these arguments.
V.
Accordingly, we affirm the judgment of the district court.
ADAMS, Circuit Judge, dissenting.
I respectfully dissent because the majority in affirming the district court has sanctioned a violation of
I.
To understand these two issues clearly, it may be helpful to restate briefly the pertinent facts. Plaintiff Wilbur McLaughlin was injured while setting up a gear hobbing machine on the premises of his employer. After a four-day trial, the district court submitted to the jury an original set
The jury returned answers to the interrogatories, finding that the gear hobber was defective; that the defect caused McLaughlin‘s injury; that it was not foreseeable by the manufacturer that workers might stand on the machine‘s railing; and that McLaughlin had assumed the risk of injuring himsеlf when he deliberately placed his hand near a known pinchpoint in the equipment. Although these answers, given the finding on assumption of the risk, required that a verdict for defendants be entered, the jury nonetheless awarded $100,000 to McLaughlin and $20,000 to his wife.
When the answers to the interrogatories were returned, and it was perceived that they were inconsistent with the general verdict, plaintiffs moved for a mistrial. Defendants moved for entry of judgment in their favor, on the basis of the clear finding by the jury that the plaintiff had assumed the risk and because they had filed a motion for a directed verdict. The district court declined to grant either of these motions. Instead, over objection, he submitted two additional special interrogatories to the jury. These additional interrogatories were intended to determine whether the jury had found that McLaughlin‘s unforeseeable use of the machine in standing on its railing had been a cause of the accident. The jury in response to the supplemental questions found that McLaughlin‘s position on the railing was neither the sole nor a substantial factor in causing his injury. Upon the return of these answers, and without any motion for a judgment n.o.v. by plaintiffs, the district court “set aside” the jury‘s finding of assumption of risk, and entered judgment for plaintiffs.
The majority concludes that the trial court acted properly (1) when it submitted the supplemental interrogatories to the jury, and (2) when it set aside the jury‘s finding of assumption of risk despite the absence of a motion for a direct verdict, and proceeded to enter judgment for plaintiffs. It reasons that the “resubmission” of additional special interrogatories was permissible under
I disagree that this case involves a matter of resubmission to the jury of inconsistent answers to special interrogatories. The special findings of the jury, both before and after the trial court submitted the supplemental questions, were reconcileable with one another. Althоugh the findings by the jury were plainly inconsistent with the general verdict for plaintiffs, both the Seventh Amendment and
Furthermore, the procedure employed in the district court violated the clear-cut requirement stated in
Because I conclude that the trial court invaded the province of the jury when it set aside the finding of assumption of risk, I respectfully dissent.
II.
A.
The first three special interrogatories submitted to the jury concerned the issues whether the gear hobbing machine wаs defective and, if so, whether the defect was the cause of McLaughlin‘s injury. Arguably, the third question regarding whether McLaughlin‘s position on the railing was foreseeable ought not to have been submitted to the jury separately from the first interrogatory. Whether a manufacturer has a duty to protect against dangers posed by unintended uses is an issue subsidiary to the larger question whether a product is defective within the meaning of § 402A of the Restatement (Second) of Torts. See, e.g., Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893, 900-03 (1975) (Jones, C.J., with one judge concurring and five judges concurring in the result); Burch v. Sears, Roebuck and Co., 320 Pa.Super. 444, 467 A.2d 615, 619 (1983); Eschbach v. W.T. Grant‘s and Co., 481 F.2d 940, 942-43 (3d Cir.1973). Thus, the jury‘s third finding, that McLaughlin was engaged in an unforeseeable use of the machine at the time of the accident, was potentially inconsistent with its first finding that the machine was defective. Nonetheless, the jury‘s first three answers were also subject to an interpretation that rendered them consistent. From its answers to the first two speciаl interrogatories, indicating that the machine was defective and that the machine‘s defect had caused the accident, it could have been inferred that McLaughlin‘s position on the railing had not contributed to the accident in any way. Reading the answers in this fashion, the jury‘s finding that McLaughlin‘s position on the railing was an unforeseeable use was consistent with its finding that the gear hobber was defective. Because under the Seventh Amendment, a federal court is required to seek a view of the special findings of the jury that will render all of them consistent, if possible, the jury‘s first three findings should have been so viewed. See Gallick v. Baltimore & Ohio R.R., 372 U.S. 108, 119, 83 S.Ct. 659, 666, 9 L.Ed.2d 618 (1963); Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364, 82 S.Ct. 780, 786, 7 L.Ed.2d 798 (1962); Alvarez v. J. Ray McDermott & Co., Inc., 674 F.2d 1037, 1040 (5th Cir.1982).
Nor was the jury‘s fourth special finding—that McLaughlin had voluntarily assumed a known risk by consciously placing
Clearly, the jury‘s general verdict for plaintiffs was inconsistent with its finding that McLaughlin had assumed the risk of injuring himself, as the assumption of risk finding should have mandated a verdict for defendants. However, under
The majority relies upon Stanton v. Astra Pharmaceutical Products, 718 F.2d 553 (3d Cir.1983), as the sole authority for its position that the district court‘s actions in this case were in conformance with
Neither Stanton nor any other case citеd by the majority purports to authorize a court to set aside one of the jury‘s special findings so as to reconcile the findings and verdict as the court sees fit. Thus the procedure followed in the district court, in my view, was improper under
In addition to holding that the setting aside of the assumption of risk finding was in accordance with
The majority thus appears to assume that the rules governing the grant of judgments n.o.v. have no applicability where a court sets aside a special finding by the jury as distinguished from setting aside a general verdict. This assumption, however, is unfounded. Whether a court seeks to set aside the jury‘s generаl verdict or a subsidiary finding, its power to do so is limited by the Seventh Amendment. The power of the trial court is also governed by
In Baltimore & Carolina Line v. Redman, 295 U.S. 654, 55 S.Ct. 890, 79 L.Ed. 1636 (1935), the Supreme Court considered the constitutionality of judgments n.o.v. It explained that the aim of the Seventh Amendment was to retain the common-law distinction between the roles of the court and of the jury. Thus, practices recognized at common law at the time the Seventh Amendment was adopted were deemed to be consistent with the amendment. The Court observed that, at the time of the amendment, entry of a judgment n.o.v. was permitted if the trial court had expressly reserved the question of the sufficiency of the evidence to be ruled upon after the jury had returned a verdict. The Supreme Court thus held that, where а trial court takes a jury‘s verdict subject to the opinion of the court on a question of law, it may set aside the jury‘s verdict for one party and enter judgment for the other without infringing the Seventh Amendment right to trial by jury. The Court distinguished Slocum v. New York Life Insurance Co., 228 U.S. 364, 33 S.Ct. 523, 57 L.Ed. 879 (1913), in which it had held that entry of a judgment contrary to that returned by the jury violated the Seventh Amendment, on the ground that in Slocum the trial court had not expressly reserved the question of the sufficiency of the evidence.
The Supreme Court has never indicated that Redman is no longer the law or that a judgment n.o.v. may constitutionally be granted without a prior reservation, whether explicit or implicit, of the question regarding the sufficiency of the evidence. And the cases in this Circuit have been emphatic in reaffirming the necessity that a judgment n.o.v. be preceded by a motion for a directed verdict, and in recognizing the constitutional underpinnings of that requirement. For example, we stated in Lowenstein v. Pepsi-Cola Bottling Co., 536 F.2d 9 (3d Cir.1976):
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.
Id. at 11 (quoting 5A Moore‘s Federal Practice § 50.08, at 2358-59 (1975)). See also Bonjorno, 752 F.2d 802 at 814; Acosta v. Honda Motor Co., 717 F.2d 828, 831 (3d Cir.1983); Mallick v. International Brotherhood of Electrical Workers, 644 F.2d 228, 233 (3d Cir.1981).
While the district court did not enter a judgment contrary to the general verdict returned by the jury, its action in setting aside the jury‘s finding that McLaughlin had assumed the risk no less involved the court in re-examining the facts found by the jury. In Bonjorno, we recognized that a grant of judgment n.o.v. regarding a single issue, absent a motion for a directed verdict on that issue, implicated the Seventh Amendment. As we explained there, “[W]hen a trial court decides an issue after it was properly submitted to the jury, it may deprive the non-moving party of his Seventh Amendment rights.” 752 F.2d at 814.
There are additional purposes served by
In this case, far from having raised the specific issue of assumption of risk in a motion for a directed verdict, plaintiffs never filed such a motion at all. Thus, defendants had no warning that the district judge, after properly submitting the question to the jury, might later decide to set aside the jury‘s finding based on his own determination that McLaughlin had not assumed the risk. By so doing, the trial court violated both the Seventh Amendment and
III.
Under the circumstances presented in the district court, when the jury returned a general verdict for plaintiffs along with a special finding of assumption of risk, the district judge should have returned the jury for further consideration of its answers and its verdict, or entered judgment for defendants, or granted a new trial. As the district court declined to follow the first of these courses of action, we are limited on review to choosing between the latter two options. Although I disagree with the majority that there was insufficient evidence as a matter of law to support the finding of assumption of risk, where the jury obviously misunderstood the consequences of its finding that McLaughlin had assumed the risk of injury and was not given the opportunity to reconcile the answers and verdict itself, I would hold that a new trial is the more appropriate alternative.
I recognize that it may appear harsh to some to deprive plaintiffs of a judgment in their favor because of what could be viewed as a technicality. However, the requirement that a judgment n.o.v. be preceded by a motion for a directed verdict is based on the Seventh Amendment right to trial by jury. What is more, the rule is clearly stated in the Federal Rules of Civil Procedure and the importance of compliance with the prescribed procedure has been emphasized repeatedly by this Court. We are not free to ignore these rules which have been carefully drafted, and approved by the Supreme Court and the Congress
Peter D. BOAS, Appellee,
v.
William French SMITH, Attorney General, United States Department of Justice, Appellant.
UNITED STATES of America, Appellant,
v.
ONE NOTE AS SECURED BY DEED OF TRUST; $20,000 United States Currency, Appellees.
Nos. 84-1107, 84-1560.
United States Court of Appeals, Fourth Circuit.
Argued Dec. 2, 1985. Decided Feb. 27, 1986.
James C. Savage and Larry D. Adams, Asst. U.S. Attys. (J. Frederick Motz, U.S. Atty., Arthur C. Ferguson, Asst. U.S. Atty., and Catherine C. Blake, U.S. Atty., Baltimore, Md., on brief), for appellant.
Marvin D. Miller, Alexandria, Va., for appellee Peter Boas.
John J. Privitera (Asbill, Junkin, Myers & Buffone, Chtd., Washington, D.C., on brief), for appellee Timothy Fuller.
Before PHILLIPS and SNEEDEN, Circuit Judges, and BUTZNER, Senior Circuit Judge.
JAMES DICKSON PHILLIPS, Circuit Judge:
The government appeals the district court‘s grants of summary judgment for