Opinion
Action by the administrator of a decedent's estate against a transportation company. On defendant's motion to dismiss the action because of plaintiff's failure to comply with the court's order to produce certain documents dealing with decedent's earnings for certain years, the District Court, Welsh, J., held that dismissal of action was not required, where plaintiff stated in opposing motion that she was unable to locate documents after diligent search and would produce them immediately, if located, but court, in its discretion, would direct entry of order requiring plaintiff to file affidavit that documents were unavailable and would be produced by her immediately, if located.
Motion denied, and entry of order requiring plaintiff to file affidavit that documents were unavailable and would be produced by her immediately, if located, directed.
Francis Logan, Philadelphia, Pa., for plaintiff.
H. Francis DeLone, Philadelphia, Pa., for defendant.
WELSH, District Judge.
On February 10, 1955, this Court entered an order directing plaintiff to produce certain documents dealing with the deceased's earnings for the years 1951, 1952 and 1953. Plaintiff failed to comply with said order. As a result defendant filed the instant motion to dismiss under Federal Rules of Civil Procedure, Rule 37(b)(2)(iii), 28 U.S.C.A.
In opposing the motion plaintiff states that she has searched diligently for the documents but has been unable to locate them. She further states that she will produce the documents immediately should they be located.
We do not think that under such circumstances a dismissal of the action is required. As Rule 37(b)(2)(iii) gives us the discretion to grant to the defendant other relief, we direct that an order be entered requiring plaintiff to file an affidavit stating that the documents in question are not available and that she will produce them immediately should they be located.