KEITH L. HUBBARD, APPELLANT,
v.
THE BALTIMORE AND OHIO RAILROAD COMPANY, APPELLEE
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The court held that the District Judge did not abuse his discretion in refusing to reinstate the plaintiff's FELA suit after it was dismissed for willful failure to comply with discovery rules.
Plaintiff's suit under the Federal Employers' Liability Act was dismissed approximately six months prior due to willful failure to appear for a deposi…
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PER CURIAM.
This appeal involves the issue of whether the District Judge abused his judicial discretion in refusing to reinstate plaintiff’s suit for damages under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq., after having approximately six months earlier dismissed same because of plaintiff’s willful failure to submit himself as a witness in compliance with the Federal Rules of Civil Procedure, 28 U.S.C.A. Rule 37(d) authorizes dismissal of the action where a party willfully fails to appear before the officer who is to take his deposition after proper notice. Rule 41(b) provides for dismissal of actions for non-compliance with the rules of Civil Procedure and, unless otherwise specified in the dismissal order, such dismissal operates as an adjudication upon the merits.
After due consideration of the record, oral arguments and printed briefs of counsel, this Court holds the District Judge did not abuse his discretion in refusing to reinstate this action. Mooney v. Central Motor Lines, 6 Cir., 222 F. 2d 569; Collins v. Wayland, 9 Cir., 139 F. 2d 677, certiorari denied 322 U.S. 744, 64 S.Ct. 1151, 88 L.Ed. 1576; Peitzman v. City of Illmo, 8 Cir., 141 F. 2d 956, certiorari denied 323 U.S. 718, 65 S.Ct. 47, 89 L.Ed. 577.
The judgment is therefore affirmed.
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Craig v. FAR W. Eng'g Co., Inc., 265 F.2d 251 (9th Cir. 1959)
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Bell & Beckwith v. United States, 766 F.2d 910 (6th Cir. 1985)
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Hubbard v. The Baltimore & Ohio R.R. Co., 249 F.2d 886 (6th Cir. 1957)
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Peitzman v. City of Illmo, 141 F.2d 956 (8th Cir. 1944)
- Collins v. Wayland, 139 F.2d 677 (9th Cir. 1944)
- Mooney v. Cent. Motor Lines, Inc., 222 F.2d 569 (6th Cir. 1955)
- Peitzman (now Riley) v. City of Illmo, 323 U.S. 718 (U.S. 1944)
- North Dakota v. Stanton, 323 U.S. 718 (U.S. 1944)
- Pappas v. Ragen, 322 U.S. 744 (U.S. 1944)
- Sanders v. Sanford, 322 U.S. 744 (U.S. 1944)
- Hubbard v. The Baltimore & Ohio R.R. Co., 249 F.2d 886 (6th Cir. 1957)