Besta v. Consolidated Rail Corp., No. 83 Civ. 4029 (KTD).

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtAltier, Wayne & Klein, New York City, for plaintiff; Richard Klein, New York City, of counsel
Citation580 F. Supp. 869
Docket NumberNo. 83 Civ. 4029 (KTD).
Decision Date02 March 1984
PartiesEdward BESTA, Plaintiff, v. CONSOLIDATED RAIL CORPORATION, Defendant.

580 F. Supp. 869

Edward BESTA, Plaintiff,
v.
CONSOLIDATED RAIL CORPORATION, Defendant.

No. 83 Civ. 4029 (KTD).

United States District Court, S.D. New York.

March 2, 1984.


Altier, Wayne & Klein, New York City, for plaintiff; Richard Klein, New York City, of counsel.

Gallop, Dawson, Kimelman & Clayman, New York City, for defendant; Amy Schwartz, New York City, of counsel.

MEMORANDUM AND ORDER

KEVIN THOMAS DUFFY, District Judge.

Defendant Consolidated Rail Corporation ("Conrail") moves to dismiss this action

580 F. Supp. 870
brought by the plaintiff Edward Besta in which Besta alleges a violation of the Federal Employers Liability Act ("FELA"), 45 U.S.C. § 51 et seq

Defendant first asserts that the complaint should be stricken pursuant to Fed.R.Civ.P. 37(d) for plaintiff's failure to answer interrogatories served on him on August 11, 1983. Defendant states that in the four months since the thirty-day time period expired, plaintiff has not responded in any way or notified defendant of the reason for the delay. Plaintiff, since the filing of defendant's motion has answered the interrogatories.

Defendant's motion to strike or for other sanctions is denied for several reasons. First, plaintiff has not wilfully disobeyed a discovery order of this court or engaged in any other similarly egregious conduct which would justify striking the complaint. See Halverson v. Campbell Soup Co., 374 F.2d 810, 812 (7th Cir.1967). Moreover, because plaintiff has subsequently complied with defendant's discovery request, such a severe sanction is inappropriate. In addition, defendant has equally defaulted on its discovery obligations by violating Southern District of New York Local Civil Rule 3(f) by failing to certify that it has "conferred with counsel for opposing party in an effort in good faith to resolve by agreement the issues raised by the motion without the intervention of the Court ...." In fact, defendant's submissions on this motion implicitly acknowledge that defendant has never contacted plaintiff to resolve the discovery compliance delay. This contravenes the express purpose of Local Rule 3(f). Accordingly, this aspect of defendant's motion is denied in full.

Conrail's second ground for dismissal is that this court lacks subject matter jurisdiction over this action. Defendant claims that plaintiff's complaint alleges only intentional tort causes of action which are not cognizable under the FELA. See Fullerton v. Monongahela Connecting R.R. Co., ...

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6 practice notes
  • Monarch v. Southern Pacific Transp. Co., No. A081178
    • United States
    • California Court of Appeals
    • March 25, 1999
    ...see also Jamison v. Encarnacion (1930) 281 U.S. 635, 641, 50 S.Ct. 440, 74 L.Ed. 1082; Besta v. Consolidated Rail Corp. (S.D.N.Y.1984) 580 F.Supp. 869.) To rule otherwise and deny liability for intentional misconduct, a much graver breach of duty than negligence, would grant a plaintiff in ......
  • Wahlstrom v. Metro-North Commuter R. Co., No. 96 Civ. 3589(PKL).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 6, 2000
    ...employee upon another in the absence of notice of the assaulter's `vicious propensities'...."); Besta v. Consolidated Rail Corp., 580 F.Supp. 869, 870 (S.D.N.Y.1984). Plaintiff's burden is thus two-fold: She must show both that (1) Chapman had a propensity for "the type of behavio......
  • Pikop v. Burlington Northern R. Co., Nos. C7-84-1333
    • United States
    • Supreme Court of Minnesota (US)
    • August 1, 1986
    ...Co., 302 F.2d 912 (D.C.Cir.1962), cert. denied, 371 U.S. 827, 83 S.Ct. 48, 9 L.Ed.2d 65 (1962); Besta v. Consolidated Rail Corp., 580 F.Supp. 869 (S.D.N.Y.1984). An examination of federal case law, however, reveals that recovery for intentional acts under the FELA is limited to intentional ......
  • Lancaster v. Norfolk and Western Ry. Co., 84-2768
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • November 18, 1985
    ...50 S.Ct. 440, 442, 74 L.Ed. 1082 (1930); Civil v. Waterman S.S. Corp., 217 F.2d 94, 98 (2d Cir.1954); Besta v. Consolidated Rail Corp., 580 F.Supp. 869 (S.D.N.Y.1984). Page 813 Although Civil was a case under the Jones Act, which is a statute for the protection of seamen and other maritime ......
  • Request a trial to view additional results
6 cases
  • Monarch v. Southern Pacific Transp. Co., No. A081178
    • United States
    • California Court of Appeals
    • March 25, 1999
    ...see also Jamison v. Encarnacion (1930) 281 U.S. 635, 641, 50 S.Ct. 440, 74 L.Ed. 1082; Besta v. Consolidated Rail Corp. (S.D.N.Y.1984) 580 F.Supp. 869.) To rule otherwise and deny liability for intentional misconduct, a much graver breach of duty than negligence, would grant a plaintiff in ......
  • Wahlstrom v. Metro-North Commuter R. Co., No. 96 Civ. 3589(PKL).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 6, 2000
    ...employee upon another in the absence of notice of the assaulter's `vicious propensities'...."); Besta v. Consolidated Rail Corp., 580 F.Supp. 869, 870 (S.D.N.Y.1984). Plaintiff's burden is thus two-fold: She must show both that (1) Chapman had a propensity for "the type of behavio......
  • Pikop v. Burlington Northern R. Co., Nos. C7-84-1333
    • United States
    • Supreme Court of Minnesota (US)
    • August 1, 1986
    ...Co., 302 F.2d 912 (D.C.Cir.1962), cert. denied, 371 U.S. 827, 83 S.Ct. 48, 9 L.Ed.2d 65 (1962); Besta v. Consolidated Rail Corp., 580 F.Supp. 869 (S.D.N.Y.1984). An examination of federal case law, however, reveals that recovery for intentional acts under the FELA is limited to intentional ......
  • Lancaster v. Norfolk and Western Ry. Co., 84-2768
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • November 18, 1985
    ...50 S.Ct. 440, 442, 74 L.Ed. 1082 (1930); Civil v. Waterman S.S. Corp., 217 F.2d 94, 98 (2d Cir.1954); Besta v. Consolidated Rail Corp., 580 F.Supp. 869 (S.D.N.Y.1984). Page 813 Although Civil was a case under the Jones Act, which is a statute for the protection of seamen and other maritime ......
  • Request a trial to view additional results

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