Joseph v. Norton Company, 110
| Decision Date | 29 December 1959 |
| Docket Number | Docket 25791.,No. 110,110 |
| Citation | 273 F.2d 65 |
| Parties | Ruby JOSEPH, Plaintiff-Appellant, v. NORTON COMPANY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Bernard Friedman, New York City (Lawrence G. Greene, New York City, on the brief), for plaintiff-appellant.
Thomas F. Keane, Brooklyn, N. Y. (Albert P. Thill, Brooklyn, N. Y., on the brief), for defendant-appellee.
Before LUMBARD, Chief Judge, and SWAN and FRIENDLY, Circuit Judges.
The question for decision is whether Judge Dawson abused his discretion in dismissing with prejudice under Rule 41 (b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., the plaintiff's suit for damages when plaintiff's trial counsel refused to proceed with the trial of the case because of the illness of the attorney of record who had assisted in the preparation of the case. We find Judge Dawson's action fully justified under the circumstances of this case and affirm the judgment of dismissal with prejudice.
The suit was brought on May 24, 1957 for injuries alleged to have been suffered from the bursting of a grinding wheel manufactured by the defendant. In November 1957 plaintiff's attorneys filed a note of issue and statement of readiness for trial. After a pre-trial conference in April, 1958, the case was placed on the trial calendar and on January 20, 1959 attorneys for both sides were advised that the case would be on the assignment calendar the next day. Applications for adjournments made by the plaintiff on January 21 before Judge Sugarman, and again on January 23 before Judge Palmieri, because of the illness of a medical witness for the plaintiff, resulted in adjournment to the head of the calendar for March 16, 1959. The plaintiff thereafter on March 9 notified the defendant that on March 16 she would move for discovery and inspection of the grinding wheel, and plaintiff followed this up with notice that the motion would be heard not on March 16 but on March 24. On March 18 when the case came before Judge Herlands, he denied the plaintiff's application for adjournment and marked the case ready for trial. The parties were then advised that Judge Dawson would try the case when he had finished a case then on trial. When the discovery motion came on before Judge Noonan on March 26 he denied it as untimely in view of the 15 months delay since the filing of the notice of readiness.
On March 31 the calendar clerk advised the parties that Judge Dawson would try the case the next day. When the case came up before Judge Dawson on April 1, Samuel Friedman, trial counsel for the plaintiff, applied for a further adjournment. He presented the affidavit of Robert N. Schwartz, sworn to March 31 stating that his partner Edward G. Galian "is ill and confined to his home since March 30," that Galian was "the only man fully familiar with all the facts and circumstances of this case and has had charge of the complete preparation of the case from its inception."
Judge Dawson ascertained that the calendar clerk had not been advised on the previous day of Galian's alleged illness, and he then offered to adjourn the case until 2 P.M. so that Mr. Friedman could further familiarize himself with the case in view of the claims regarding Galian's absence. This further postponement till 2 P.M. was more than generous in an ordinary tort case where trial counsel had been retained for some indefinite time prior to April 1. When Mr. Friedman persisted in claiming that he would not be able to go forward at 2 P.M. Judge Dawson dismissed the case.
Thereafter on May 5 the plaintiff moved to vacate the dismissal on affidavit of her substituted attorney, Bernard Friedman, her former trial attorney, Samuel Friedman, Edward G. Galian, and a Dr. Paul Goetzel who attended Galian on April 1 and April 3. But these affidavits disclose no reason whatever why Samuel Friedman could not have proceeded with the trial of the action on April 1 at 2 P.M., as Judge Dawson suggested. The only specific information about the part that Galian played in the preparation of this...
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...v. Hale, 355 F.2d 201, 202 (2d Cir.) (per curiam), cert. denied, 384 U.S. 1007, 86 S.Ct. 1924, 16 L.Ed.2d 1020 (1966); Joseph v. Norton Co., 273 F.2d 65 (2d Cir. 1959). Because we find such strong grounds for dismissal in the first and third phrases of Rule 41(b), we need not deal at this t......
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...the requirements of the practice in the particular jurisdiction, the refusal to grant the continuance is usually upheld. Joseph v. Norton Co., 273 F.2d 65 (2d Cir. 1959); Kurtzon v. Kurtzon, 339 Ill.App. 431, 90 N.E.2d 245 And where the party whose attorney is ill is represented by other co......
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