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Lowenstein v. Pepsi-Cola Bottling Co.

decided: May 21, 1976.

INEZ V. LOWENSTEIN, INDIVIDUALLY, AND A. MOORE LIFTER, JEROME L. MARKOVITZ, SUSAN L. CHACE, JANE B. LOWENSTEIN AND INEZ V. LOWENSTEIN, CO-EXECUTORS OF THE ESTATE OF EMANUEL D. LOWENSTEIN, *FN* SUCCESSORS IN INTEREST TO BBCI, INC., SUCCESSOR IN INTEREST TO BOOTH BOTTLING CO., INC., APPELLANTS
v.
PEPSI-COLA BOTTLING CO. OF PENNSAUKEN AND CANADA DRY DELAWARE VALLEY BOTTLING COMPANY, APPELLEES



On Appeal from Judgment N.O.V. of the United States District Court for the Eastern District of Pennsylvania.

Hunter, Biggs and Garth, Circuit Judges. Hunter, Circuit Judge, dissenting.

Author: Biggs

Biggs, Circuit Judge.

The complaint in this suit was filed by Booth Bottling Company, Inc. (Booth) on June 5, 1970.*fn1 After lengthy proceedings which need not be set out here, Pepsi-Cola Bottling Co. of Pennsauken (Pepsi) was found by a jury to have violated the Sherman Act, 15 U.S.C. § 1, and to have committed breach of contract. Substantial damages were awarded.

Pepsi*fn2 moved for a directed verdict on November 26, 1973, at the end of Booth's case. The motion was denied, and thereafter Pepsi presented its evidence. Neither the docket sheets nor the record indicate, however, that Pepsi made a motion for a directed verdict at the close of all the evidence. Pepsi concedes that it did not formally make such a motion.*fn3 On December 14, 1973, Pepsi did make three motions: for a new trial, for a judgment notwithstanding the verdict, and for alteration and amendment of the judgment. The District Judge granted judgment N.O.V. on April 28, 1975, under Fed. R. Civ. P. 50(b).*fn4 The motions for new trial and to alter and amend the judgment have not been ruled upon.

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, 373 F.2d 886 (3d Cir. 1967), cert. denied sub nom., National Molasses Co. v. Beebe, Administrator, 388 U.S. 911, 18 L. Ed. 2d 1350, 87 S. Ct. 2115 (1967), the defendant moved for a directed verdict at the conclusion of the plaintiff's case. The motion was denied and thereafter the defendant presented its evidence. The case was then submitted to the jury, which returned a verdict for the plaintiff. The defendant then moved for judgment N.O.V. The District Court denied the motion because of failure to comply with Rule 50(b). This Court affirmed, stating: "We agree that the appellant's failure to comply with Rule 50 precluded the granting of judgment in its favor notwithstanding the verdict against it. The record shows that at the close of all the evidence the appellant failed to renew motions it had made at earlier stages of the litigation for a directed verdict. And judicial power exists under Rule 50(b) to grant judgment notwithstanding the verdict only when a motion for a directed verdict has been made at the conclusion of all the evidence and, in legal contemplation, the questions thus raised have been reserved for subsequent determination. We have repeatedly held, very recently in Gebhardt v. Wilson Freight Forwarding Co., 3d Cir., 1965, 348 F.2d 129, 132 'that the introduction of evidence after the denial of a motion for a directed verdict constitutes a waiver of the error, if any, in the denial unless the motion is renewed at the close of all of the evidence'. We adhere to that ruling." 373 F.2d at 888.

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, 123 F.2d 353, 355 (8th Cir. 1941) ].

"There is a better reason for establishing the motion for directed verdict as a condition precedent 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., 460 F.2d 254, 255 (3d Cir. 1972); Gebhardt v. Wilson Freight Forwarding Co., 348 F.2d 129, 132 (3d Cir. 1965); Massaro v. United States Lines Co., 307 F.2d 299, 303 (3d Cir. 1962); Budge Manufacturing Co. v. United States, 280 F.2d 414, 415-16 (3d Cir. 1960); Landis v. Delp, 327 F. Supp. 766, 768 (E.D. Pa. 1971); Barlow v. Brunswick Corp., 311 F. Supp. 209, 217 (E.D. Pa. 1970).

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, 221 F.2d 418, 422 (3d Cir. 1955), will not be considered by this Court as satisfying the necessary predicate for a judgment N.O.V.*fn5 See, e.g., Eisenberg v. Smith, 263 F.2d 827, 829 (3d Cir. 1959), cert. denied, 360 U.S. 918, 3 L. Ed. 2d 1534, 79 S. Ct. 1436 (1959); Guglielmo v. Scotti & Sons, Inc., 58 F.R.D. 413, 416-17 (W.D. Pa. 1973); Gilmore v. Lake Shore Motor Freight Co., 331 F. Supp. 1171, 1171-72 (W.D. Pa. 1971); Dudding v. Thorpe, 47 F.R.D. 565, 568 (W.D. Pa. 1969); Wilson v. American Chain & Cable Co., 38 F.R.D. 72, 73 (E.D. Pa. 1965), rev'd. on other grds., 364 F.2d 558 (3d Cir. 1966); Brandon v. Yale & Towne Mfg. Co., 220 F. Supp. 855, 857 (E.D. Pa. 1963), aff'd. on other grds., 342 F.2d 519 (3d Cir. 1965) (en banc). Cf., e.g., Massaro, supra, 307 F.2d at 303.*fn6 This precedent makes clear that the constitutional and procedural concerns summarized by Moore are not allayed in this Circuit by a mere request for binding instruction.*fn7

The provisions 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 District Judge has not made any disposition of the timely motions for new trial or to alter or amend the judgment.*fn8

The judgment N.O.V. will be reversed and the case remanded with the discretion to proceed in a manner ...


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