Opinion
Frederick C. Fiechter, Jr., Philadelphia, Pa., Harry Salvan, New York City, for plaintiff.
Bernard J. Smolens, Philadelphia, Pa., for Albert M. Zlotnick, Isadore Lassoff and Dr. Milton Graub.
Milton P. Kroll, Freedman, Levy, Kroll & Simonds, Washington, D.C., Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for Jetronic Industries, Inc.
GRIM, District Judge.
On March 19, 1964, defendants' attorney filed a notice of oral deposition of the plaintiff in this shareholder's secondary action. On April 16, 1964, defendants' attorney filed a motion under F.R.Civ.P. 37(d) to dismiss plaintiff's action. In this motion it is alleged that defendants' attorney, after service of notice of the oral deposition on plaintiff's counsel, was notified that the plaintiff could not attend the deposition on the scheduled date due to illness and that a physician's certificate to that effect would be produced. It is further alleged in this motion to dismiss that no such medical certificate was produced and that plaintiff failed to appear at a rescheduled deposition hearing on April 15, 1964.
No answer to the motion to dismiss has been filed. Oral argument on the motion was held before the court on May 26, 1964. Neither plaintiff nor her attorneys appeared to contest the motion. In these circumstances, the court deems it proper to enter the following order:
ORDER
And now, this 8th day of June, 1964, the complaint of Barbara Wright, individually and in behalf of any and all other shareholders of Jetronic Industries, Inc. against Albert M. Zlotnick, Samuel J. Goldstein, Daniel Graub, Isadore Lassoff, Allen M. Shore, Dr. Milton Graub and Kenrich Corp. and Herman Rogge and Jetronic Industries, Inc., is dismissed with prejudice.