Fischer v. Dover Steamship Co., 40

Decision Date07 January 1955
Docket NumberNo. 40,Docket 23126.,40
Citation218 F.2d 682
PartiesJames F. FISCHER, Plaintiff-Appellant, v. DOVER STEAMSHIP CO., Inc., Defendant-Appellee.
CourtU.S. Court of Appeals — Second Circuit

Klein & Ruderman, New York City (Morris Hirschhorn and Betty Weinberg, New York City, of counsel), for plaintiff-appellant.

Kirlin, Campbell & Keating, New York City (Roland C. Radice, Brooklyn, N. Y., and Walter X. Connor, New York City, of counsel), for defendant-appellee.

Before FRANKFURTER, Circuit Justice, FRANK and HINCKS, Circuit Judges.

HINCKS, Circuit Judge.

The seaman's action was commenced by filing a complaint on October 17, 1952. The defendant served a notice to take the deposition of the plaintiff on February 2, 1953, and the notice was made returnable on February 19, 1953. By June 23, 1953, more than four and one-half months later, the plaintiff had not presented himself for his deposition. Pursuant to Rule 37(d) of the Federal Rules of Civil Procedure, 28 U.S.C.A. defendant made a motion to dismiss and the trial court ruled that the motion would be granted unless the plaintiff appeared to give his deposition by September 8, 1953, — an additional 60 days. But plaintiff still failed to appear, and on September 23, 1953 the case was dismissed with prejudice under Rule 41(b).

Plaintiff now contends that the trial court should have dismissed the case without prejudice under 41(a) (2) of the Federal Rules of Civil Procedure. But Rule 41(b) provides: "For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him". This provision was plainly applicable.

Appellant sought to vacate the judgment entered against him under Rule 60(b) of the Federal Rules of Civil Procedure on the ground of excusable neglect, — this on the assertion that a staff member in the office of plaintiff's counsel failed to note the September 8 deadline in the office tickler. The trial court denied relief.

Motions brought under Rule 60(b) invoke the discretionary power of the trial court. In denying this motion, we see no abuse of the discretion thus granted. The neglect seems to arise more from the plaintiff's personal inaction than from any oversight in his counsel's office. For aught that appears, if the tickler entry had been made the plaintiff would still have failed to appear. The plaintiff is in this dilemma: if, having...

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  • Petition of Cardines
    • United States
    • U.S. District Court — District of Guam
    • September 28, 1973
    ...terms. It is well settled that motions for relief under Rule 60(b) are addressed to the discretion of the court. Fischer v. Dover S. S. Co., 218 F.2d 682 (2d Cir. 1955); England v. Doyle, 281 F.2d 304, 309 (9th Cir. 1960)." Succinctly phrased, it appears (1) that at one time Section 338 of ......
  • Young v. Tryon
    • United States
    • U.S. District Court — Western District of New York
    • March 27, 2013
    ...when the plaintiff fails to take any specific or concrete actions over a substantial length of time. See, e.g., Fischer v. Dover Steamship Co., 218 F.2d 682, 683 (2d Cir. 1955) (plaintiff's failure to appear for deposition noticed seven months earlier, despite court order requiring his appe......
  • Lott v. United States
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • January 20, 1955
    ... ... sold, transferred, etc., is not named as a defendant or co-conspirator; and that the indictment, together with the ... from the record, a crime that had taken place 30 or 40 years ago, and I told him the order expunging it from the ... ...
  • Ahmed v. INS, 93 Civ. 0936 (DAB).
    • United States
    • U.S. District Court — Southern District of New York
    • January 17, 1996
    ...Bruns Schiff Gesellschaft, M.B.H., 324 F.2d 234, 235 (2d Cir.1963) (one-year activity grounds for dismissal); Fischer v. Dover Steamship Co., 218 F.2d 682, 683 (2d Cir. 1955) (seven-month delay grounds for dismissal); West v. City of N.Y., 130 F.R.D. 522, 524 (S.D.N.Y.1990) (twenty-month de......
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