You are on page 1of 8

9B Fed. Prac. & Proc. Civ. 2531 (3d ed.

.) Federal Practice & Procedure Federal Rules Of Civil Procedure Database updated December 2012 Chapter 7. Trials Rule 50. Judgment As a Matter of Law in a Jury Trial; Related Motion for a New Trial; Conditional Ruling B. Sufficiency of the Evidence to Create a Jury Issue 2531 Standard Distinguished From Other ProceduresNew Trial A renewed motion for judgment as a matter of law under Federal Rule 50(b) may be joined, in the alternative, with a motion for a new trial under Rule 59.1 These motions have wholly distinct functions and entirely different standards govern their allowance.2 Nevertheless there has been confusion and some courts persist in stating, as the standard for judgment as a matter of law, the much more lenient test that is applicable to a motion for a new trial when it is based on the ground that the verdict is against the weight of the evidence. The contrasts between the two motions are dramatic. If a motion for a new trial is granted, the case is tried again. If either version of the motion for judgment as a matter of law is granted, the case is at an end. Because of the finality that the latter motion has, it is natural that it should be measured by a far more rigorous standard. On a motion for new trial, the district court has a wide discretion to order a new trial whenever prejudicial error has occurred. On a motion for judgment as a matter of law, it has no discretion whatsoever and considers only the question of law whether there is sufficient evidence to raise a jury issue.3 On a motion for new trial the trial judge may consider the credibility of witnesses and the weight of the evidence; on a motion for judgment as a matter of law, the judge may not.4 The failure to seek a judgment as a matter of law at the close of all the evidence does not procedurally bar a motion for a new trial, but it does bar a renewed motion for judgment as a matter of law.5 However, the failure to move for a new trial in the district court does preclude the granting of that remedy on appeal.6 All of this has been understood for some time and is thoroughly settled in the cases. Two of the most famous statements by illustrious judges regarding the differences between the two motions came within two months of each other. In 1932six years before the promulgation of the Federal Rules of Civil ProcedureJudge John J. Parker, speaking for the Fourth Circuit, wrote: There seems to be some confusion on the part of counsel as to the difference between the duty to direct a verdict and the duty to grant a new trial after verdict; and the contention is frequently made that the judge should direct a verdict whenever the evidence is such that he would be justified in setting the verdict aside. The distinction, however, is clear. Where there is substantial evidence in support of plaintiff's case, the judge may not direct a verdict against him, even though he may not believe his evidence or may think that the weight of the evidence is on the other side; for, under the constitutional guaranty of trial by jury, it is for the jury to weigh the evidence and pass upon its credibility. He may, however, set aside a verdict supported by substantial evidence where in his opinion it is contrary to the clear weight of the evidence, or is based upon evidence which is false; for, even though the evidence be sufficient to preclude the direction of a verdict, it is still his

duty to exercise his power over the proceedings before him to prevent a miscarriage of justice. Verdict can be directed only where there is no substantial evidence to support recovery by the party against whom it is directed or where the evidence is all against him or so overwhelmingly so as to leave no room to doubt what the fact is. Verdict may be set aside and new trial granted, when the verdict is contrary to the clear weight of the evidence, or whenever in the exercise of a sound discretion the trial judge thinks this action necessary to prevent a miscarriage of justice.7 The same point was made the next month by Judge Joseph C. Hutcheson, Jr., speaking for the Fifth Circuit: A District Judge in the conduct of a common law trial in the Federal court has two separate and distinct functions, each equally vital to the just conduct of such trial, each separate and distinct from the other. One, his function before verdict, to determine whether there is any evidence to carry the case, or any issue in it, to the jury. This function requires him to submit every disputed issue to them. That is, every issue in regard to which reasonable minds might draw different conclusions, and to refuse to submit to them issues on which there is no evidence, that is, issues as to the result of which reasonable minds cannot disagree. The other, his function after verdict, to refuse in the exercise of his discretion, to permit a verdict to stand which, though supported by evidence, is in his opinion against the right and justice of the case.8 The principles stated by Judge Parker and Judge Hutcheson were and continue to be sound today. Their authoritativeness is not shaken by an ill-considered statement in a Supreme Court decision of the same vintage that has long been thoroughly discredited on many grounds.9 The federal courts today understand this clear distinction between the two kinds of motions and often state it in very clear terms.10 They say in so many words, as did the Sixth Circuit many years ago, that a verdict may not be directed for a defendant merely because the trial judge feels that, should the jury find in plaintiff's favor, he would regard it as his duty in the exercise of a sound judicial discretion, to set the verdict aside.11 Unfortunately on occasion judges forget. Statements appear in the cases from time to time that equate the standard of sufficiency of the evidence to withstand a motion for judgment as a matter of law or the renewed version thereof with the standard allowing the trial judge to make a discretionary determination to award a new trial and these passages say that judgment as a matter of law may be granted if the court would feel compelled to set aside a verdict in favor of the party opposing the motion.12 These statements simply are wrong. Westlaw. 2012 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
1 Joined in alternative See 2539. 2 Entirely different standards Hinz v. Neuroscience, Inc., D.C.Minn.2007, 2007 WL 1576116.

Minks v. Polaris Indus., Inc., D.C.Fla.2007, 2007 WL 1452906, quoting Wright & Miller. See also Henning v. Union Pacific R. Co., 530 F.3d 1206 (10th Cir. 2008) (district court improperly applied Rule 50 standard to motion for new trial under Rule 59). But see Coons v. Industrial Knife Co., Inc., 620 F.3d 38, 41 (1st Cir. 2010) (Rule 59(e) motion could be construed as Rule 50(b) motion since it contained all information required for Rule 50(b) motion), citing Cosgrove v. Bartolotta, 150 F.3d 729, 732 (7th Cir. 1998). 3 Question of law See 2524 n. 1. See also Yurman Design, Inc. v. PAJ, Incorporated, D.C.N.Y.2000, 93 F.Supp.2d 449, affirmed in part, reversed in part on other grounds C.A.2d, 2001, 262 F.3d 101. Nadel v. Isaksson, D.C.N.Y.2000, 90 F.Supp.2d 378, vacated on other grounds C.A.2d, 2003, 321 F.3d 266. 4 May not weigh evidence See 2524 n. 10. Fine v. Sovereign Bank, 671 F. Supp. 2d 219, 224 (D. Mass. 2009). Douglas Asphalt Co. v. Qore, Inc., 2010 WL 2089255, *2 (S.D. Ga. 2010). See also In reviewing a district court's decision on a Rule 50(b) motion for a new trial, the court of appeals must view the evidence in the light most favorable to the party prevailing at trial, and draw all reasonable inferences in his or her favor. BBA Nonwovens Simpsonville, Inc. v. Superior Nonwovens, LLC, C.A.Fed., 2002, 303 F.3d 1332. When a district court is considering a new trial motion on the grounds that the verdict is against the great weight of the evidence, the court is entitled to interpret the evidence and judge the credibility of witnesses for itself. Simco v. Ellis, C.A.8th, 2002, 303 F.3d 929. Moran v. Clarke, C.A.8th, 2002, 296 F.3d 638. Kelly v. Armstrong, C.A.8th, 2000, 206 F.3d 794. Watkins v. Professional Sec. Bureau, Ltd., C.A.4th, 1999, 201 F.3d 439, opinion at 1999 WL 1032614 (per curiam), certiorari denied 120 S.Ct. 1961, 529 U.S. 1108, 146 L.Ed.2d 793. Fount-Wip, Inc. v. Reddi-Wip, Inc., C.A.9th, 1978, 568 F.2d 1296, citing Wright & Miller. Unlike on a motion for judgment as a matter of law, the court, when considering a motion for a new trial, need not view the evidence in the light most favorable to the verdict winner. MLMC, Ltd. v. Airtouch Communications, Inc., D.C.Del.2002, 215 F.Supp.2d 464, quoting Wright & Miller. Edwards v. Schrader-Bridgeport Int'l, Inc., D.C.N.Y.2002, 205 F.Supp.2d 3. Asa-Brandt, Inc. v. Farmers Co-Op. Soc., D.C.Iowa 2002, 2002 WL 1714197. Whiteside Biomechanics, Inc. v. Sofamor Danek Group, Inc., D.C.Mo.2000, 88 F.Supp.2d 1009. McClary v. Coughlin, D.C.N.Y.2000, 87 F.Supp.2d 205.

Ricciuti v. New York City Transit Authority, D.C.N.Y.1999, 70 F.Supp.2d 300. Swans v. City of Lansing, D.C.Mich.1998, 65 F.Supp.2d 625. Vetter v. Farmland Indus., Inc., D.C.Iowa 1995, 901 F.Supp. 1446, 1452, reversed on other grounds C.A.8th, 1997, 120 F.3d 749, citing White v. Pence, C.A.8th, 1992, 961 F.2d 776, 779. Megadyne Medical Prods., Inc. v. Aspen Labs., Inc., D.C.Utah 1994, 864 F.Supp. 1099, citing Wright & Miller. Renfroe v. Kirkpatrick, D.C.Ala.1982, 549 F.Supp. 1368, citing Wright & Miller, certiorari denied 105 S.Ct. 98, 469 U.S. 823, 83 L.Ed.2d 44. Crown Cent. Petroleum Corp. v. Brice, D.C.Va.1977, 427 F.Supp. 638, citing Wright & Miller. Luker v. City of Brantley, Ala.1987, 520 So.2d 517, quoting Wright & Miller. Amabello v. Colonial Motors, 1977, 374 A.2d 1182, 117 N.H. 556, citing Wright & Miller. 5 Motion for judgment not required "Unlike Rule 50, the text of Rule 59 does not require any pre-verdict motions." Pediatrix Screening, Inc. v. TeleChem Intern., Inc., 602 F.3d 541, 546 (3d Cir. 2010). Manfred v. Superstation, Inc., 365 Fed. Appx. 856, 857 (9th Cir. 2010). Guidance Endodontics, LLC v. Dentsply Intern. Inc., 2010 WL 4054115, *13 (D.N.M. 2010), citing Wright & Miller. Baden Sports, Inc. v. Molten, 541 F. Supp. 2d 1151 (W.D. Wash. 2008). Garcia v. Gallardo, D.C.Colo.2006, 2006 WL 2990215 (failure to move for judgment as matter of law does not preclude filing of motion for new trial). Chesler v. Trinity Indus., Inc., D.C.Ill.2001, 2001 WL 1593142, citing Wright & Miller. CVI/Beta Ventures, Inc. v. Tura LP, D.C.N.Y.1995, 905 F.Supp. 1171 (acknowledging that failure to seek directed verdict during trial does not procedurally bar motion for new trial but citing defendants' failure to raise contentions at trial as indication that new trial not necessary to prevent manifest injustice), reversed in part, vacated in part on other grounds C.A.Fed., 1997, 112 F.3d 1146. Compare "A district court is entitled to find that an award is unsupported by the evidence and thus that a motion for a new trial under Rule 59 should be granted, even if there was enough evidence in the record to justify sending the issue to the jury in the first instance (a finding that would require denial of a motion for judgment as a matter of law under Rule 50)." Smart Marketing Group v. Publications Intern. Ltd., 624 F.3d 824, 832 (7th Cir. 2010), citing Wright & Miller. In order to move for a new trial on the basis of insufficient evidence, a party must have moved previously for judgment as a matter of law at the close of evidence. Such a motion is not required, however, before a party can move for a new trial on the ground that the verdict is against the weight of the evidence. Union Carbide Chem. & Plastics Technology Corp. v. Shell Oil Co., C.A.Fed., 2002, 308 F.3d 1167. 6 Remedy on appeal Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 2006, 126 S.Ct. 980, 546 U.S. 394, 163 L.Ed.2d 974, quoting Wright & Miller.

7 Judge Parker's statement Garrison v. U.S., C.A.4th, 1932, 62 F.2d 41, 42. 8 Judge Hutcheson's statement Reid v. Maryland Cas. Co., C.A.5th, 1933, 63 F.2d 10, 12. 9 Supreme Court decision The rule is settled for the federal courts, and for many of the state courts, that whenever in the trial of a civil case the evidence is clearly such that if a verdict were rendered for one of the parties the other would be entitled to a new trial, it is the duty of the judge to direct the jury to find according to the views of the court. Pennsylvania R.R. Co. v. Chamberlain, 1933, 53 S.Ct. 391, 395, 288 U.S. 333, 343, 77 L.Ed. 819 (Sutherland, J.). Other portions of the Chamberlain decision that have been repudiated by more recent decisions are discussed in 2528 and 2529. 10 Distinction stated "A district court is entitled to find that an award is unsupported by the evidence and thus that a motion for a new trial under Rule 59 should be granted, even if there was enough evidence in the record to justify sending the issue to the jury in the first instance (a finding that would require denial of a motion for judgment as a matter of law under Rule 50)." Smart Marketing Group v. Publications Intern. Ltd., 624 F.3d 824, 832 (7th Cir. 2010), citing Wright & Miller. Valentin-Almeyda v. Municipality of Aguadilla, C.A.1st, 2006, 447 F.3d 85. The standards for granting a new trial under Federal Rule 59 differ in two significant ways from those governing a Federal Rule 50 motion for judgment as a matter of law. One appellate court argued that, unlike judgment as a matter of law, a new trial may be granted even if there is substantial evidence supporting the jury's verdict. Moreover, a trial judge is free to weigh the evidence himself and need not view it in the light most favorable to the verdict winner. DLC Management Corp. v. Town of Hyde Park, C.A.2d, 1998, 163 F.3d 124, 134 (Eginton, J.). Denesha v. Farmers Ins. Exchange, C.A.8th, 1998, 161 F.3d 491, certiorari denied 119 S.Ct. 1763, 526 U.S. 1115, 143 L.Ed.2d 794. An appellate court reviews the denial of a motion for new trial to determine if any evidence supported the verdict, irrespective of the sufficiency of evidence; motions for judgment as a matter of law may be reviewed for sufficiency of evidence. Chesapeake Paper Prods. Co. v. S & W Engineering Corp., C.A.4th, 1995, 51 F.3d 1229. [I]t is evident that the standards for considering a motion for j.n.o.v. differ thoroughly from those governing consideration of a motion for new trial. White v. Pence, C.A.8th, 1992, 961 F.2d 776, 779 (Gibson, J.). Spanish Action Committee of Chicago v. City of Chicago, C.A.7th, 1985, 766 F.2d 315, citing Wright & Miller. Purchal v. Patterson, C.A.8th, 1985, 762 F.2d 713, citing Wright & Miller. Austin v. Unarco Indus., Inc., C.A.1st, 1983, 705 F.2d 1, citing Wright & Miller. J & J Farms, Inc. v. Cargill, Inc., C.A.8th, 1982, 693 F.2d 830, citing Wright & Miller. Stone v. First Wyoming Bank, N.A., Lusk, C.A.10th, 1980, 625 F.2d 332.

A determination that a jury's answers to special interrogatories were against the weight and preponderance of the evidence, although not adequate for granting a judgment n.o.v., can be proper for granting a new trial. National Car Rental Sys., Inc. v. Better Monkey Grip Co., C.A.5th, 1975, 511 F.2d 724, certiorari denied 96 S.Ct. 193, 423 U.S. 894, 46 L.Ed.2d 126, and certiorari denied 96 S.Ct. 394, 423 U.S. 986, 46 L.Ed.2d 303. The function of the directed verdict and the judgment n.o.v. is to order a final verdict for the moving party, while the function of the new trial is to order a redetermination of the issues before a new jury. Urti v. Transport Commercial Corp., C.A.5th, 1973, 479 F.2d 766, citing Wright & Miller. [T]here is a decisive difference between the granting of an instructed verdict (or J.N.O.V.) and the grant of a new trial by the trial Judge. U.S. v. 1160.96 Acres of Land in Holmes County, Mississippi, C.A.5th, 1970, 432 F.2d 910, 914915 (Brown, C.J.). Simpson v. Skelly Oil Co., C.A.8th, 1967, 371 F.2d 563, 566567. U.S. v. Fenix & Scisson, Inc., C.A.10th, 1966, 360 F.2d 260, certiorari denied 87 S.Ct. 1474, 386 U.S. 1036, 18 L.Ed.2d 599. U.S. v. Simmons, C.A.5th, 1965, 346 F.2d 213, 215. Hampton v. Magnolia Towing Co., C.A.5th, 1964, 338 F.2d 303, 306. City of Richmond v. Atlantic Co., C.A.4th, 1960, 273 F.2d 902, 916917. McCracken v. Richmond, Fredericksburg & Potomac R.R. Co., C.A.4th, 1957, 240 F.2d 484, 488. Eastern Air Lines, Inc. v. Union Trust Co., C.A.1956, 239 F.2d 25, 2930, 99 U.S.App.D.C. 205, certiorari denied 77 S.Ct. 816, 353 U.S. 942, 1 L.Ed.2d 760. Citizens Nat. Bank of Lubbock v. Speer, C.A.5th, 1955, 220 F.2d 889, 891. O'Donnell v. Geneva Metal Wheel Co., C.A.6th, 1950, 183 F.2d 733, 739, certiorari denied 71 S.Ct. 612, 341 U.S. 903, 95 L.Ed. 1342, rehearing denied C.A.6th, 1950, 190 F.2d 59. Marsh v. Illinois Cent. R.R. Co., C.A.5th, 1949, 175 F.2d 498, 499500. Aetna Cas. & Sur. Co. v. Yeatts, C.A.4th, 1941, 122 F.2d 350, 354. Unlike for a JMOL motion, the court need not view the evidence in the light most favorable to the verdict winner when considering a motion for a new trial. MLMC, Ltd. v. Airtouch Communications, Inc., D.C.Del.2002, 215 F.Supp.2d 464, quoting Wright & Miller (Robinson, C.J.). Johnson v. Campbell, D.C.Del.2002, 215 F.Supp.2d 423, affirmed in part, reversed in part on other grounds C.A.3d, 2003, 332 F.3d 199. Lloyd v. Ashcroft, D.C.D.C.2002, 208 F.Supp.2d 8 (standard for new trial under Rule 59 less onerous than standard applied under Rule 50 for judgment as matter of law). Edwards v. Schrader-Bridgeport Int'l, Inc., D.C.N.Y.2002, 205 F.Supp.2d 3. Asa-Brandt, Inc. v. Farmers Co-Op. Soc., D.C.Iowa 2002, 2002 WL 1714197. The standard for granting a new trial is less stringent than the standard for judgment as a matter of law. Unlike judgment as a matter of law, a new trial may be granted even if there is substantial evidence to support the jury's verdict. Chesler v. Trinity Indus., Inc., D.C.Ill.2001, 2001 WL 1593142. Palazzetti Import/Export, Inc. v. Morson, D.C.N.Y.2001, 2001 WL 1568317 (magistrate judge). Ricciuti v. New York City Transit Authority, D.C.N.Y.1999, 70 F.Supp.2d 300.

Ortiz v. New York City Housing Authority, D.C.N.Y.1998, 22 F.Supp.2d 15. The standard for granting a new trial is less stringent than the standard for judgment as a matter of law. Unlike judgment as a matter of law, a new trial may be granted even if there is substantial evidence to support the jury's verdict, and the judge is free to weigh evidence and need not view it in the light most favorable to the verdict winner. Mono v. Peter Pan Bus Lines, Inc., D.C.N.Y.1998, 13 F.Supp.2d 471. Nyman v. FDIC, D.C.D.C.1997, 967 F.Supp. 1562 (standard for new trial is less onerous than one applicable to motion for judgment as matter of law). Rusnak v. Housing Authority of the City of Bridgeport, D.C.Conn.1997, 963 F.Supp. 161 (unlike judgment as matter of law, new trial may be granted even when there is substantial evidence to support jury's verdict). Vetter v. Farmland Indus., Inc., D.C.Iowa 1995, 901 F.Supp. 1446, reversed on other grounds C.A.8th, 1997, 120 F.3d 749. Dunn v. Consolidated Rail Corp., D.C.La.1995, 890 F.Supp. 1262. The judge has more discretion to grant a new trial than judgment as a matter of law. Hynes v. LaBoy, D.C.N.Y.1995, 887 F.Supp. 618. Bseirani v. Mahshie, D.C.N.Y.1995, 881 F.Supp. 778. Mendoza v. Union St. Bus Co., D.C.Mass.1995, 876 F.Supp. 8, 10. Maxwell v. J. Baker, Inc., D.C.Minn.1995, 160 F.R.D. 580. Pulla v. Amoco Oil Co., D.C.Iowa 1994, 882 F.Supp. 836, affirmed in part, reversed in part on other grounds C.A.8th, 1995, 72 F.3d 648. Rose v. Ireco Inc., D.C.N.Y.1994, 872 F.Supp. 1127. Jones v. Associated Univs., Inc., D.C.N.Y.1994, 870 F.Supp. 1180, citing Wright & Miller. Ryther v. KARE 11, D.C.Minn.1994, 864 F.Supp. 1510 (new trial standard is less stringent than standard for judgment as matter of law, but new trial still should not be granted unless verdict is unjust or conflicts with great weight of evidence). Chadima v. National Fidelity Life Ins. Co., D.C.Iowa 1994, 848 F.Supp. 1418, reversed on other grounds C.A.8th, 1995, 55 F.3d 345. Cudone v. Gehret, D.C.Del.1993, 828 F.Supp. 267. A.A. Poultry Farms, Inc. v. Rose Acre Farms, Inc., D.C.Ind.1988, 683 F.Supp. 680, citing Wright & Miller. Draft Sys., Inc. v. Rimar Mfg., Inc., D.C.Pa.1981, 524 F.Supp. 1049, citing Wright & Miller. Crown Cent. Petroleum Corp. v. Brice, D.C.Va.1977, 427 F.Supp. 638, citing Wright & Miller. Morrissey v. National Maritime Union, D.C.N.Y.1975, 397 F.Supp. 659, citing Wright & Miller, affirmed in part, reversed in part on other grounds C.A.2d, 1976, 544 F.2d 19. Seven Provinces Ins. Co. v. Commerce & Indus. Ins. Co., D.C.Mo.1975, 65 F.R.D. 674, citing Wright & Miller. Rock Transp. Properties Corp. v. Hartford Fire Ins. Co., D.C.N.Y.1970, 312 F.Supp. 341, 345. Ralston Purina Co. v. Como Feed & Milling Co., D.C.Miss.1966, 256 F.Supp. 5. Jackson v. Baldwin-Lima-Hamilton Corp., D.C.Pa.1966, 252 F.Supp. 529, certiorari denied 87 S.Ct. 189, 385 U.S. 803, 17 L.Ed.2d 117. Tidwell v. Ray, D.C.Miss.1962, 208 F.Supp. 952, 955.

Johns v. Baltimore & Ohio R.R. Co., D.C.Pa.1956, 143 F.Supp. 15, 23, affirmed C.A.3d, 1957, 239 F.2d 385. Widder v. New York, Chicago & St. Louis R.R. Co., D.C.Pa.1955, 142 F.Supp. 830, 835, affirmed C.A.3d, 1956, 235 F.2d 752. See also Harvey v. F-B Truck Line Co., 1987, 767 P.2d 254, 259, 115 Idaho 411, citing Wright & Miller. Quick v. Crane, 1986, 727 P.2d 1187, 111 Idaho 759, citing Wright & Miller. Sheets v. Agro-West, Inc., App.1983, 664 P.2d 787, 104 Idaho 880, citing Wright & Miller. Robert v. Hail Unlimited, a Div. of Int'l Bus. & Mercantile Re-Assurance Co., N.D.1984, 358 N.W.2d 776, citing Wright & Miller. First Nat. Bank of Fargo v. Ketcham, N.D.1983, 336 N.W.2d 140, citing Wright & Miller. Okken v. Okken, N.D.1982, 325 N.W.2d 264, citing Wright & Miller. Nokota Feeds, Inc. v. State Bank of Lakota, N.D.1973, 210 N.W.2d 182, citing Wright & Miller. Cooper, Directions for Directed Verdicts: A Compass for Federal Courts, 1971, 55 Minn.L.Rev. 903, 920. But compare Williams v. Watson, D.C.Tenn.1972, 346 F.Supp. 1377. 11 May not be directed O'Donnell v. Geneva Metal Wheel Co., C.A.6th, 1950, 183 F.2d 733, 739 (McAllister, J.), rehearing denied C.A.6th, 1950, 190 F.2d 59, certiorari denied 71 S.Ct. 612, 341 U.S. 903, 95 L.Ed. 1342. See also Ricciuti v. New York City Transit Authority, D.C.N.Y.1999, 70 F.Supp.2d 300. 12 Equate two standards Giblin v. Beeler, C.A.10th, 1968, 396 F.2d 584, 588. Carroll v. Seaboard Air Line R.R. Co., C.A.4th, 1967, 371 F.2d 903, 904. Meeker v. Rizley, C.A.10th, 1965, 346 F.2d 521, 525526. U.S. v. Hess, C.A.10th, 1965, 341 F.2d 444, 447. Jones v. J. P. Stevens & Co., C.A.5th, 1964, 328 F.2d 428, criticized 1964, 42 Texas L.Rev. 1053, 1061. Wachovia Bank & Trust Co. v. U.S., C.A.4th, 1961, 288 F.2d 750, 757. White v. New York Life Ins. Co., C.A.5th, 1944, 145 F.2d 504, 508. Collins v. Craven, D.C.S.C.1971, 52 F.R.D. 146, 148. 2531 Standard Distinguished From Other ProceduresNew Trial, 9B Fed. Prac. & Proc. Civ. 2531 (3d ed.)