Besta v. Consolidated Rail Corp., No. 83 Civ. 4029 (KTD).
| Court | United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York |
| Writing for the Court | Altier, Wayne & Klein, New York City, for plaintiff; Richard Klein, New York City, of counsel |
| Citation | 580 F. Supp. 869 |
| Docket Number | No. 83 Civ. 4029 (KTD). |
| Decision Date | 02 March 1984 |
| Parties | Edward 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
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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Monarch v. Southern Pacific Transp. Co., No. A081178
...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 ......
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Wahlstrom v. Metro-North Commuter R. Co., No. 96 Civ. 3589(PKL).
...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......
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Pikop v. Burlington Northern R. Co., Nos. C7-84-1333
...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 ......
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Lancaster v. Norfolk and Western Ry. Co., 84-2768
...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 ......
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Monarch v. Southern Pacific Transp. Co., No. A081178
...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 ......
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Wahlstrom v. Metro-North Commuter R. Co., No. 96 Civ. 3589(PKL).
...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......
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Pikop v. Burlington Northern R. Co., Nos. C7-84-1333
...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 ......
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Lancaster v. Norfolk and Western Ry. Co., 84-2768
...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 ......