Keith L. Hubbard v. The Baltimore and Ohio Railroad Company , 249 F.2d 885 ( 1957 )

249 F.2d 885

Keith L. HUBBARD, Appellant,
v.
The BALTIMORE AND OHIO RAILROAD COMPANY, Appellee.

No. 13223.

United States Court of Appeals Sixth Circuit.

December 16, 1957.

Frank Leonetti, Cleveland, Ohio, for appellant.

Alexander H. Hadden, Cleveland, Ohio (Baker, Hostetler & Patterson, Cleveland, Ohio, on the brief), for appellee.

Before ALLEN and STEWART, Circuit Judges, and BOYD, District Judge.

PER CURIAM.

1

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.

2

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.

3

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.

4

The judgment is therefore affirmed.