Robert A. Maheu, and v. Hughes Tool Company, a Corporation, Now Known as Summa Corporation, Defendant-Counterclaimant-Appellant And

concurring and dissenting:

While I fully agree with my Brothers Duniway and Wallace as to the errors requiring reversal and remand of this case, I would go further and reverse and direct the district court to enter in favor of Summa a judgment notwithstanding the verdict. In this respect only do I dissent.

Two primary goals of the court — justice and judicial economy — would be advanced by that disposition. In order to avoid wasteful and unnecessary retrials and to encourage speed in litigation the Supreme Court has held that

Rule 50(d) is permissive in the nature of its direction to the court of appeals . . , there is nothing in Rule 50(d) indicating that the court of appeals may not direct entry of judgment n. o. v. in appropriate cases.

Neely v. Eby Construction Co., 386 U.S. 317, 324 , 87 S.Ct. 1072, 1077 , 18 L.Ed.2d 75 (1967). But cf. Iacurci v. Lummus Co., 387 U.S. 86, 88 , 83 S.Ct. 1423 , 18 L.Ed.2d 581 (1967).

The test to determine the propriety of judgment n. o. v. is the same for district and appellate judges. See Alioto v. Cowles Communications, Inc., 519 F.2d 777, 780 (9th Cir.), cert. denied, 423 U.S. 930 , 96 S.Ct. 280 , 46 L.Ed.2d 259 (1975). It requires the…

This is a diversity action for defamation brought by Robert A. Maheu against Hughes Tool Company, now named Summa Corporation (“Summa”). The defamatory statement was made by Howard Hughes, sole owner of Summa.

I. Preliminary Observations.

As it comes to us, the case is unusual in several respects. First, the record is immense. The Clerk’s record of court papers (other than exhibits) consists of thirty-two volumes containing 8,545 pages and two supplemental volumes containing 505 pages. There are 92 volumes of reporter’s trial transcript, containing 15,472 pages. There are also 22 volumes of reporters’ transcripts of various pre-trial hearings. The pages of these are not consecutively numbered, but there are several hundred. There are thousands- of exhibits, and many depositions, some very long, were taken. Rule 1 of the Federal Rules of Civil Procedure, as adopted nearly 50 years ago, states the high hopes of the draftsmen: the rules “shall be construed to secure the just, speedy, and inexpensive determination of every action.” Something in the Federal civil procedure has gone very much awry. Where now is speedy and inexpensive determination?

Second, Summa admitted that the…

569 F.2d 459 3 Media L. Rep. 1847 Robert A. MAHEU, Plaintiff-Appellant and Appellee, v. HUGHES TOOL COMPANY, a corporation, now known as Summa Corporation, Defendant-Counterclaimant-Appellant and Appellee. Nos. 75-1306, 75-2353. United States Court of Appeals, Ninth Circuit. Dec. 27, 1977. As Modified Jan. 12, 1978. Morton R. Galane (argued), of Galane, Tingey & Shearing, Las Vegas, Nev., Laurence H. Eldredge (on the brief), San Francisco, Cal., for plaintiff-appellant and appellee. Norbert A. Schlei and Malcolm E. Wheeler (argued), Hughes Hubbard & Reed, Los Angeles, Cal., Howard M. Jaffe, Davis & Cox, New York, N. Y., Charles Alan Wright, Austin, Texas (of counsel), on the brief, for defendant-counterclaimant-appellant and appellee. Appeal from the United States District Court for the Central District of California. Before DUNIWAY, CHOY and WALLACE, Circuit Judges. DUNIWAY, Circuit Judge: 1 This is a diversity action for defamation brought by Robert A. Maheu against Hughes Tool Company, now named Summa Corporation ("Summa"). The defamatory statement was made by Howard Hughes, sole owner of Summa. 2 I. Preliminary Observations. 3 As it comes to us, the case is unusual…