Opinion
July 1, 1952.
LAYTON, J., sitting.
Gustav A. Peterson, Attorney for Plaintiff.
William Prickett, Attorney for Defendant.
Motion for judgment by default based upon plaintiff's wilful refusal to appear in response to notice to take her deposition. Denied.
Superior Court for New Castle County, No. 9, Civil Action, 1950.
Plaintiff was served with notice by defendant to appear for the taking of her deposition prior to trial. She did not appear. Her attorney stated on the record that he had advised her to appear but she had refused stating that she would appear but once, on the day of trial when she would testify. Defendant has moved for a judgment by default in accordance with Rule 37 (a) of the Superior Court which is the same as the Federal Rule 37(d), 28 U.S.C.A.
The provisions of this rule do not seem to have been construed by the Federal Courts as mandatory. Moore's Federal Practice, Vol. 4 § 37.04, P. 2808; Barron and Holtzoff, Federal Practice and Procedure, Vol. 2, § 855, P. 563; Madison v. Cobb, D.C., 29 F. Supp. 881 ; Dann v. Campagnie General Trans-Atlantique, Ltd., D.C., 29 F. Supp. 330 ; Producers Releasing Corporation DeCuba v. PRC Pictures, Inc., D.C., 8 F.R.D. 254 .
In the exercise of my discretion, I direct that an order be submitted to me for signature commanding this plaintiff to appear not less than five days subsequent to the date of the order at a time and place to be designated therein for the purpose of having her deposition taken. If she does not comply fully therewith, the action will be dismissed.