Opinion
Action by Mac C. Grimmett against Atchison, Topeka & Santa Fe Railway Company, a corporation, wherein defendant moved for an order compelling plaintiff to answer an interrogatory and for attorney's fees. The District Court, Freed, J., held that defendant's given answer was unsatisfactory but not a refusal without substantial justification that would entitle defendant to attorney's fees.
Motion for order granted without costs.
Louis Gray, A. L. Kearns and Sindell & Sindell, all of Cleveland, Ohio, for plaintiff.
Paul Clarke and Conners & Clarke, all of Cleveland, Ohio, for defendant.
FREED, District Judge.
Defendant's Interrogatory No. 1 asked plaintiff to list his income for each month during the year 1949. In answer thereto, and without objecting to the question, the plaintiff replied that he had testified to these matters at a deposition hearing and referred defendant to the deposition record in defendant's possession. Defendant now moves for an order compelling plaintiff to answer the interrogatory.
The answer given is unsatisfactory. Plaintiff will be required to answer fully under oath to the best of his knowledge, Rule 33, Federal Rules of Civil Procedure, 28 U.S.C.A.
Defendant's request for attorneys fees, as authorized by Rule 37(a), charges that the refusal to answer was without substantial justification. It would appear that plaintiff did not refuse to answer, but rather attempted to answer by reference. Although the answer was improper, this Court is not of the opinion that plaintiff has refused without substantial justification. The drastic provisions of the Rule should be invoked only when deliberate or flagrant attitude is demonstrated.
The motion for an order will be granted without costs of obtaining said order.