Opinion
Blackman & Willner, of New York City, for plaintiff.
Lawrence I. Gerber, of New York City, for defendant.
HULBERT, District Judge.
Plaintiff applies for an order pursuant to Federal Rules of Civil Practice directing that the defendant, or in the event of his inability to attend, Mr. King, his general manager, appear and have his deposition taken as an adverse party and be examined concerning certain specific issues enumerated in the notice of motion.
The action is for an injunction and damages for an alleged infringement of Letters Patent for design #111558 issued September 27, 1938, to one Yvonne Guyon, and by her, thereafter and prior to the commencement of this action, assigned to the plaintiff.
Issue was joined January 20, 1939, by the service of an answer which merely contains a general denial of every allegation in the complaint except the issuance of said Letters Patent.
On or about February 8, 1939, the plaintiff served a notice that pursuant to Rule 30(a), Federal Rules of Civil Procedure, 28 U.S.C.A.following section 723c, the defendant, or a proper person having knowledge thereof, submit to oral examination and have his deposition taken upon all the matters in issue, before a Notary Public at his place of business therein designated, on February 16th, 1939, at 2 o'clock p.m.
Neither the defendant, nor anyone associated in business with him, appeared. His counsel stated that the defendant was ill but promised to produce him as soon as he recovered. That has not been done. It was claimed upon the argument of this motion that he was still confined to his home.
The remedy, in case a party fails to appear pursuant to notice, is prescribed in Rule 37(d) which reads as follows: 'If a party or an officer or managing agent of a party wilfully fails to appear before the officer who is to take his deposition, after being served with a proper notice * * *, the court on motion and notice may strike out all or any part of any pleading of that party, or dismiss the action or proceeding or any part thereof, or enter a judgment by default against that party.'
The notice of motion herein asks 'and for such other and further relief as to this court may seem just and proper.'
The defendant must appear on a date to be fixed in the order to be entered or make proper proof of his physical inability so to do, and if in that event the parties are willing that Mr. King, his manager, be examined in his stead and Mr. King fails to appear, as in said order to be directed, the defendant's answer will be stricken out and the plaintiff may proceed to judgment; provided, of course, that if the defendant makes proper proof of his physical inability to appear and the plaintiff is unwilling to waive his right to examine the defendant and accept the testimony of Mr. King, such further adjournment may be had until the defendant is able to appear.
Settle order on notice.