The complaint in this suit was filed by Booth Bottling Company, Inc. (Booth) on June 5, 1970.1 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.

Pepsi2 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.3 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).4 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, 87 S. Ct. 2115, 18 L. Ed. 2d 1350 (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., 3 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.5 See, e. g., Eisenberg v. Smith, 263 F.2d 827, 829 (3d Cir. 1959), cert. denied, 360 U.S. 918, 79 S. Ct. 1436, 3 L. Ed. 2d 1534 (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 303.6 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.7

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.8

The judgment N.O.V. will be reversed and the case remanded with the discretion to proceed in a manner consistent with this opinion.9

I respectfully disagree with the majority's determination that the judgment N.O.V. should be reversed on the basis of Fed.R.Civ.P. 50(b). To me, the result represents an unnecessarily technical and rigid application of the rule, and does not serve the interests of justice or judicial efficiency.

I do not, of course, question the rule of Beebe v. Highland Tank and Manufacturing Co., 373 F.2d 886 (3d Cir.), cert. denied sub nom., National Molasses Co. v. Beebe, 388 U.S. 911, 87 S. Ct. 2115, 18 L. Ed. 2d 1350 (1967), that, unless a defendant renews a motion for directed verdict first made at the end of plaintiff's case after all the evidence is in, the district court is without power to grant a subsequent motion by the defendant for judgment N.O.V. The narrow question presented here is whether, on the facts of this case, it could be concluded that the earlier motion had been renewed.

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 directed to enter a verdict in favor of defendants."

Since this request can fairly be read as incorporating the specific grounds1 set forth in the earlier motion, the only procedural "defect" which the majority can rely upon to find non-compliance with Rule 50(b) is the failure to set forth the quoted request on a separate piece of paper (or orally) and label it

"(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.2 In Beebe there is no indication that the defendant, at the close of all the evidence, requested a binding instruction or took any other action which might have alerted the court and the plaintiff that the defendant was still contending that the case should not go to the jury. In Eisenberg v. Smith, 263 F.2d 827 (3d Cir.), cert. denied, 360 U.S. 918, 79 S. Ct. 1436, 3 L. Ed. 2d 1534 (1959), there is no indication that there had been an earlier motion for directed verdict to which the request for binding instructions could relate; the latter request could therefore not serve as a basis for a judgment N. O. V. since specific grounds had not been set forth as required by Fed.R.Civ.P. 50(a). The other Third Circuit cases cited by the majority are distinguishable for similar reasons.

In Jack Cole Co. v. Hudson, 409 F.2d 188 (5th Cir. 1969),3 the court of appeals found sufficient compliance with Rule 50(b) on facts which I believe are indistinguishable from those now presented. The majority opinion (p. ----, n. 7) attempts to draw a distinction by "treat(ing) Cole as a case where the defendants requested a directed verdict." That begs for question, since from the reported opinion in Cole, we know only that defendants "did apparently make a request in chambers (after the close of all the evidence) that the jury be instructed to find for them. This was refused . . . ." 409 F.2d at 191. The same request and, necessarily, the same refusal were made here. The majority also suggests that Cole is distinguishable because "the district judge in Cole apparently treated the defendants' request as a motion for directed verdict, which would satisfy Rule 50(b)." Majority opinion, p. ----, n. 7. The Cole opinion provides no basis for such a conclusion as to the reason for the trial judge's action; to the extent that such an inference can be drawn from the fact that the district judge subsequently entertained a motion for judgment N. O. V., the inference is equally applicable in our case.

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, "(t)here 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., 409 F.2d at 191.

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.4 Secondly, the points for jury charge not only included the general request for a directed verdict but also at least one specific point attacking the sufficiency of plaintiff's evidence which, if given, would have been tantamount to a directed verdict.5 Finally, we have not been referred to any point during the sixteen-month period between defendant's motion for judgment N. O. V. and the granting of that motion when plaintiff even suggested that Rule 50(b) required a denial of the motion. Plaintiff did not raise this issue in its original or reply brief in this court.6

As to the trial judge's notice of defendant's renewal of the motion 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, 221 F.2d 418, 422 (3d Cir. 1955), this court held that where it could be determined from the record that the trial court had treated a "motion for binding instructions" as a motion for directed verdict, the appellate court "properly may consider these cases on the basis of the trial court's refusal to grant (defendant's) motion for judgment (N. O. V.) . . .."7 We thus recognized that the trial judge, may, on the basis of his greater familiarity with the proceedings, tolerate formal "defects" and find "substantial compliance" with Rule 50(b) where no prejudice would result.8 The majority today purports to reaffirm Psinakis (majority opinion at p. ----, n. 5), but states that it is inapplicable to this case. It is, of course, true that the district judge did not state on the record that he considered the request(s) for charge to be tantamount to a renewal of the motion for directed verdict. However, because the district judge not only entertained but granted the motion for judgment N. O. V., there are only two possibilities: either the district judge found "substantial compliance" with Rule 50(b), as permitted under Psinakis, or he overlooked the ramifications of Rule 50(b). There is no way to tell. I am convinced that the district judge either did find or would have found "substantial compliance."9 The majority opinion must be read not only as disagreeing with this position, but as holding that "substantial compliance" could not have been found by the district judge; otherwise the proper (less severe) "remedy" would be to remand for district court consideration of the "substantial compliance" issue. I find no basis on this record for a holding that the district court could not have found substantial compliance.

(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, 395 F. Supp. 64, 80 (D.N.J.1975), (finding "substantial compliance" on comparable facts), rev'd on other grounds, 3d Cir., --- F.2d ----, filed May 5, 1976, I also agree that "(a) review of these cases indicates not only the Third Circuit's desire that the trial judge be apprised of the movant's position through 'substantial compliance' with Rule 50 . . . but also an overriding concern that technical non-compliance with Rule 50 should not be used as a basis for withholding relief when warranted . . . ." Id. I would not break with that precedent.

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.