Hubbard v. Baltimore and Ohio Railroad Company, 13223.

Citation249 F.2d 885
Decision Date16 December 1957
Docket NumberNo. 13223.,13223.
PartiesKeith L. HUBBARD, Appellant, v. The BALTIMORE AND OHIO RAILROAD COMPANY, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Frank Leonetti, Cleveland, Ohio, for appellant.

Alexander H. Hadden, Cleveland, Ohio (Baker, Hostetler & Patterson, Cleveland, Ohio, on the brief), for appellee.

Before ALLEN and STEWART, Circuit Judges, and BOYD, District Judge.

PER CURIAM.

This appeal involves the issue of whether the District Judge abused his judicial discretion in refusing to reinstate plaintiff's suit for damages under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., after having approximately six months earlier dismissed same because of plaintiff's willful failure to submit himself as a witness in compliance with the Federal Rules of Civil Procedure, 28 U.S.C.A.

Rule 37(d) authorizes dismissal of the action where a party willfully fails to appear before the officer who is to take his deposition after proper notice. Rule 41(b) provides for dismissal of actions for non-compliance with the rules of Civil Procedure and, unless otherwise specified in the dismissal order, such dismissal operates as an adjudication upon the merits.

After due consideration of the record, oral arguments and printed briefs of counsel, this Court holds the District Judge did not abuse his discretion in refusing to reinstate this action. Mooney v. Central Motor Lines, 6 Cir., 222 F.2d 569; Collins v. Wayland, 9 Cir., 139 F.2d 677, certiorari denied 322 U.S. 744, 64 S.Ct. 1151, 88 L.Ed. 1576; Peitzman v. City of Illmo, 8 Cir., 141 F.2d 956, certiorari denied 323 U.S. 718, 65 S.Ct. 47, 89 L.Ed. 577.

The judgment is therefore affirmed.

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8 cases
  • Bell & Beckwith v. U.S., I.R.S.
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • March 26, 1985
    ...National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976); Hubbard v. Baltimore & Ohio Railroad, 249 F.2d 885 (6th Cir.1957). Given Cannon's repeated, unexplained failures to appear for depositions, the basis of the decision is clear. Accor......
  • Craig v. Far West Engineering Company
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • April 7, 1959
    ...* may * * * dismiss the action or proceeding." The courts have so interpreted it in cases arising under the rule. Hubbard v. Baltimore & Ohio R. Co., 6 Cir., 1957, 249 F.2d 885; Campbell v. Johnson, D.C.S.D.N.Y.1951, 101 F.Supp. 705. Under the circumstances here, we cannot say that the cour......
  • Lohman v. General American Life Insurance Co., 72-1123.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • April 20, 1973
    ...90 S.Ct. 194, 24 L.Ed.2d 173 (1969). See also Mooney v. Central Motor Lines, 222 F.2d 569 (6th Cir. 1955); Hubbard v. Baltimore & Ohio R. R. Co., 249 F.2d 885 (6th Cir. 1957). Last, appellant argues that the District Court erred in holding that its order of dismissal dated April 16, 1971, w......
  • Payne v. Payne
    • United States
    • United States Appellate Court of Illinois
    • April 18, 1961
    ...there was no abuse of the discretion under the circumstances disclosed by the record the judgment was affirmed. In Hubbard v. Baltimore & O. R. R., 6 Cir., 1957, 249 F.2d 885, also a per curiam opinion, the court held that the refusal to reinstate plaintiff's suit for damages under the Fede......
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