Arnold

dissenting:

Summary judgment is a useful tool for federal trial courts, but summary judgment is abused when in determining disputed facts it becomes a substitute for trial by jury. The abuse is abetted when an appellate court chooses to overlook the *667 clash of facts present in the trial record. Summary judgment for the defendants in this case is contrary to the standards established by the Supreme Court for summary judgment, contrary to the Federal Rules of Civil Procedure as they must be applied even in a case based on diversity jurisdiction, contrary to the specific provisions of Federal Rules of Civil Procedure 8(c) and 16(e), and contrary to the requirements of justice.

Clifford Robinson, a star basketball player for the Portland Trailblazers, was swindled by his sports agent, Larry Gill-man. The swindling occurred in Gillman’s supervision of the construction in Connecticut of a house for Robinson. This fraud, undisputed in this case, is tied to the fraud that Robinson contends was committed by 389 Orange Street Partners (OSP) and the individual defendants.

It will be helpful to sort out two types of facts — those facts undisputed on the record in this case and facts…

ORDER

The opinion filed March 22, 1999 [ 170 F.3d 1200 ], is hereby amended as follows:

At slip opinion page 2497 [170 F.3d at 1208], at the end of subsection E, add a paragraph that reads:

With these amendments, the petition for rehearing is DENIED, and the suggestion for rehearing en banc is DENIED. Judge Noonan would vote to grant the petition for rehearing and recommends granting the suggestion for rehearing en banc.

OPINION

I

Overview

Clifford Robinson appeals three, final judgments of the District of Oregon in favor of cross-claim defendants Orange Street Partners (“OSP”), Regis Conlon, Sebastian Ciarcia, and Richard and Kyle Arnold (collectively, “Appellees”). The action originated as an interpleader action brought by Trailblazers, Inc. against Robinson and OSP to determine the appropriate recipient of wages earned by Robinson. Robinson brought several cross-claims against Appellees. The first judgment awarded the wages to OSP under a promissory note and security agreement and dismissed Robinson’s claims against all but Ciarcia as time-barred. The second judgment granted attorneys’ fees to OSP. The third judgment, dismissed Robinson’s claims against Ciarcia as…