Opinion
Proceeding on motions by defendant to dismiss complaint and libel. The District Court, Layton, J., held that where plaintiff's failure to prosecute actions for a period of three years and to appear on date set for taking of his deposition on oral examination and date set for argument on motion for dismissal of action, constituted valid grounds for dismissal of action.
Order accordingly.
Motions by defendant-respondent to dismiss Complaint and libel. granted.
On December 15, 1953, plaintiff-libellant, hereinafter called plaintiff, filed a Complaint (Civil Action No. 1579) and a libel (In Admiralty No. 1715) in the United States District Court for the District of Delaware seeking recovery for alleged personal injuries incurred while he was employed as a seaman on defendant's vessel. The most recent action taken by plaintiff in either of these cases was his answer to defendant's interrogatories filed with the Court in Civil Action No. 1579 on February 16, 1954. In the Admiralty action, plaintiff has taken no action since filing the libel over four years ago. Plaintiff has taken no action in the prosecution of either of these cases since February 16, 1954.
On October 7, 1957, defendant moved to dismiss the Complaint and libel for failure to prosecute for over three years. At the 1957 October call of the calendar, the attorney for plaintiff advised the Court that he would not oppose defendant's motion to dismiss. (Letter of Edward G. Pollard, Clerk of United States District Court, District of Delaware, to counsel for plaintiff and defendant dated October 7, 1957.) By letter dated October 31, 1957, plaintiff's attorney further advised the Court that he could not by overt act consent to the dismissal of these actions but he had no defense to their dismissal. In the same letter, it was suggested that defendant notice plaintiff for the taking of the latter's deposition on oral examination and on his failure to appear, move for dismissal. Accordingly, on November 11, 1957, defendant served on plaintiff's attorney and filed with the Court a notice for the taking of plaintiff's deposition on oral examination in the office of the court reporter, Federal Courthouse, Wilmington, Delaware, on December 2, 1957, at 10:00 A.M. At approximately 9:30 A.M., December 2, 1957, the morning scheduled for the taking of the deposition, Joseph H. Geoghegan, Esquire, an associate in the firm of Berl Potter & Anderson, attorneys for defendant spoke by telephone with plaintiff's attorney who stated that he had been served on November 11, 1957, with a notice of the taking of the deposition; that he had informed plaintiff of the taking of the deposition; that he had not heard from plaintiff since so informing him; that he did not expect him to appear at the deposition; and that he did not plan to appear at the deposition.
Neither plaintiff nor his attorney did, in fact, appear at the deposition noticed for 10:00 A.M., December 2, 1957. (Transcript of official court reporter of the hearing held in the office of the court reporter, Federal Courthouse, Wilmington, Delaware, on December 2, 1957, at 10:00 A.M., page 2-3.)
On December 20, 1957, defendant moved to dismiss the Complaint and the libel for failure to prosecute for over three years and for failure of plaintiff to appear for the taking of his deposition on oral examination.
The motions for dismissal were set for argument on January 23, 1958. Plaintiff filed no brief and failed to appear at the argument in person or through his attorney.
Henry A. Wise, Jr. (of Wise & Suddard), Wilmington, Del., for plaintiff-libellant.
Joseph H. Geoghegan (of Berl Potter & Anderson), Wilmington, Del., for defendant-respondent.
LAYTON, District Judge.
Insofar as concerns Civil Action No. 1579, Fed.Rules Civ.Proc. Rule 41(b), 28 U.S.C. provides in part:
‘ (b) Involuntary Dismissal: Effect Thereof . For the failure of the plaintiff to prosecute * * * a defendant may move for the dismissal of an action or of any claim against him * * *’
In my judgment, plaintiff's failure to prosecute this action for a period of three years under the circumstances above recited constitutes valid grounds for dismissal of the action. Salmon v. City of Stuart, 5 Cir., 1952, 194 F.2d 1004; Russell v. Cunningham, 9 Cir., 1956, 233 F.2d 806.
As to the libel (In Admiralty No. 1715), Admiralty Rule 38, 28 U.S.C.A., provides:
‘ Rule 38 Dismissal for failure to prosecute ‘ If, in any admiralty suit, the libellant shall not appear and prosecute his suit, and comply with the orders of the court, he shall be deemed in default and contumacy; and the court may, on the application of the respondent or claimant, pronounce the suit to be deserted, and the same may be dismissed with costs.’
This action is also dismissed upon the authority of Lynn v. American Barge Line Company, 3 Cir., 1955, 226 F.2d 934.
An Order will be entered in accordance herewith.