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DiMELLA v. GRAY LINES OF BOSTON, INC.

No. 87-1209.

836 F.2d 718 (1988)

Diane DiMELLA, Plaintiff, Appellant, v. GRAY LINES OF BOSTON, INC., and Herb Edmunds, Defendants, Appellants. United States of America, Defendant, Appellee.

United States Court of Appeals, First Circuit.

Decided January 13, 1988.

Attorney(s) appearing for the Case

Roberta Thomas Brown with whom Blake J. Godbout, Boston, Mass., was on brief, for appellants.

Nicholas C. Theodorou, Asst. U.S. Atty., with whom Frank L. McNamara, Jr., Acting U.S. Atty., Boston, Mass., was on brief, for defendant, appellee.

Before COFFIN, ALDRICH and TORRUELLA, Circuit Judges.

BAILEY ALDRICH, Senior Circuit Judge.

This case, in its present aspect a federal tort claim against the United States, 28 U.S.C. § 2671 et seq., was heard in a somewhat bastard form, part way between a formal motion to dismiss for failure to state a claim, Fed.R.Civ.P. 12(b)(6), and, informally, a motion for summary judgment, not filed. While in exceptional instances this amalgam can be proper, see King v. Williams Industries, Inc.,

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