Edmond v. Moore-McCormack Lines, 178

Citation253 F.2d 143
Decision Date06 March 1958
Docket NumberNo. 178,Docket 24844.,178
PartiesRobert EDMOND, Plaintiff-Appellant, v. MOORE-McCORMACK LINES, Inc., Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Robert Edmond, pro se.

Kirlin, Campbell & Keating, New York City (Charles N. Fiddler, Walter X. Connor, and Thomas F. Feeney, New York City, of counsel), for defendant-appellee.

Before HINCKS and LUMBARD, Circuit Judges, and DIMOCK, District Judge.

PER CURIAM.

This action was brought on June 18, 1953. Prior to its dismissal on April 5, 1957, the plaintiff had changed his lawyer nine times: sometimes the lawyer withdrew and sometimes the lawyer was discharged by the plaintiff. Partly because of these frequent changes there were substantial delays in readying the case for trial. In 1956 the action was dismissed for failure of the plaintiff to answer the defendant's interrogatories but was later restored to the docket on plaintiff's motion. In November 1956, the plaintiff filed a notice of readiness for trial and the case was placed on the trial calendar. Thereafter the trial was postponed several times at the plaintiff's request following a disagreement between the plaintiff and his lawyer. On March 26, 1957, the plaintiff was advised by letter from the court that failure to appear before Judge Dawson on April 1, 1957 for an assignment conference "will result in a dismissal of this action." On April 1 plaintiff's counsel appeared and the trial was set for April 5. On the evening of April 4, 1957, the plaintiff, then in his room in bed, after conferring with his newly-retained counsel for several hours in preparation for trial disagreed with counsel as to the conduct of the trial and, after the departure of his counsel, sent a telegram to the judge saying that he was too ill to appear.

On the opening of court on April 5, 1957, when judge, jury and defendant's counsel and witnesses were in readiness to try the case, because of the absence of the plaintiff the trial was again postponed, on this occasion until 2 p. m., and the plaintiff through his counsel by the judge's order was instructed to attend at that time or to submit a doctor's certificate of inability. At that time the plaintiff again failed to appear and submitted neither a doctor's certificate nor any reason for his noncompliance with the court's direction. The dismissal with prejudice ensued.

After the plaintiff had taken his appeal from the order of dismissal, he moved in the district court to vacate the dismissal and in support of his motion offered a physician's affidavit, verified June 26, 1957, stating that on April 4, 1957 and three times between ...

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7 cases
  • Griggs v. Provident Consumer Discount Company
    • United States
    • United States Supreme Court
    • November 29, 1982
    ...... See Hattersley v. Bollt, 512 F.2d 209 (CA3 1975); Edmond v. . . Page 59 . Moore-McCormack Lines, 253 F.2d 143 (CA2 1958). ...Rosenberg, 437 F.2d 1098 (CA9 1971). Cf. Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). But see Century Laminating, Ltd. v. ......
  • United States v. Eisner
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • September 30, 1963
    ...37(a) (1) and 39(a), Rules of Criminal Procedure; United States v. Frank B. Killian Co., 269 F.2d 491, 494, C.A.6th; Edmond v. Moore-McCormack Lines, 253 F.2d 143, 144, C.A.2nd, cert. denied, 358 U.S. 848, 79 S.Ct. 73, 3 L.Ed.2d 82; Peterman v. Indian Motorcycle Co., 216 F.2d 289, 291, C.A.......
  • Ahmed v. INS, 93 Civ. 0936 (DAB).
    • United States
    • U.S. District Court — Southern District of New York
    • January 17, 1996
    ...Warner, 997 F.2d 1023, 1027 (2d Cir.1993) (a court sua sponte may dismiss an action for failure to prosecute); Edmond v. Moore-McCormack Lines, 253 F.2d 143, 144 (2d Cir.), cert. denied, 358 U.S. 848, 79 S.Ct. 73, 3 L.Ed.2d 82 (1958) (same); West v. City of New York, 130 F.R.D. 522, 524 (S.......
  • Chira v. Lockheed Aircraft Corp.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • October 14, 1980
    ...excuse falters in the face of Solomon's undoubted energy at Chira's deposition on April 9 and 10. Cf. Edmond v. Moore-McCormack Lines, Inc., 253 F.2d 143, 144 (2d Cir.) (per curiam), cert. denied, 358 U.S. 848, 79 S.Ct. 73, 3 L.Ed.2d 82 (1958). We are similarly not swayed by Solomon's state......
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