“[T]he District Court is free to consider any motion which may be presented to it and to permit such amendments to the pleadings or the filing of such affidavits by either party to the action as it may deem permissible.”
How later courts described this case
- “[T]he District Court is free to consider any motion which may be presented to it and to permit such amendments to the pleadings or the filing of such affidavits by either party to the action as it may deem permissible.”
- on petition for rehearing in banc
- opinion on petition for rehearing
- on petition for rehearing en banc
Written by the judges who cited it.
The opinion
BIGGS, Chief Judge, and HASTIE, Circuit Judge
(dissenting).
Though we concur in the result reached in the majority opinion we fear that some of the language in it could have an unfortunate effect on pretrial procedure. Unfortunate inferences can be drawn from the words used which, we believe, go beyond the requirements of this case.
Rule 16, subsection (6) provides that a pretrial order “controls” the subsequent course of the action, not only framing the issues but also fixing concessions made by the parties in the record. See Owen v. Schwartz, 1949, 85 U.S.App. D.C. 302, 177 F.2d 641, 642-644 , 14 A.L.R.2d 1337 ; 3 Moore’s Federal Practice, Paragraph 16.02 n. 3, 16.19; and Atwood v. Humble Oil & Refining Co., 5 Cir., 1957, 243 F.2d 885, 889 . The language employed by the majority denigrates the proposition that under Rule 16 facts may be agreed upon and that concessions and allegations made at pretrial are binding on the parties and constitute the basis on which the case must be tried.
On this issue we are particularly disturbed by the language of the opinion which states, “The District Court’s error” in finding that there was no genuine issue as to material facts “was com *274 pounded by its error in ‘assuming’ the facts to be as stated by plaintiff’s counsel in the pre-trial proceedings * * This is a statement that facts conceded and embodied in a pretrial order cannot be the basis of a summary judgment. If this has become the law the effect of those potent instruments, the pretrial conference and the pretrial conference order, will be largely obliterated. We are of the opinion that the ruling quoted is erroneous.
The ruling quoted is to the effect that a trial court cannot assume controverted facts against the movenant in deciding a motion for summary judgment. If a trial court cannot do this a demurrable complaint may be allowed to stand and an unnecessary trial ensue. Considerable emphasis is placed on this ruling which is unnecessary to decide the ease at bar.
For these reasons we dissent from the refusal of the court to grant rehearing before the court en bane, in order that the ground of decision may be appropriately narrowed.