Opinion
Action wherein the court had directed plaintiff to appear at designated time and place for taking of depositions and to be present thereafter at mutually agreeable times, under penalty of dismissal for noncompliance. Upon plaintiff's absenting himself from taking of depositions, after an adjournment in their taking, on asserted belief that they were a waste of time, the District Court, Sugarman, J., held that since plaintiff had failed to avail himself of provisions of rules for terminating or limiting examination but had proceeded at his own peril, complaint would be dismissed.
Complaint dismissed.
Rassner & Rassner, New York City, for plaintiff. Jacob Rassner, New York City, of counsel.
Lundgren, Lincoln & McDaniel, New York City, for defendant El Paso Natural Gas Co. Franklin B. Lincoln, Jr., New York City, of counsel.
Richard Brill, New York City, for defendant Republic Steel Corp.
SUGARMAN, District Judge.
On March 21, 1957 Judge Noonan directed the plaintiff to appear at a designated hour and place on March 27, 1957 for the taking of his deposition by each of the defendants ‘ from day to day thereafter at mutually agreeable time until completed, in default of which judgment shall be entered for the defendants dismissing the complaint herein as to both defendants with prejudice.’
The plaintiff, pursuant thereto, did appear and was examined by the defendants' counsel on March 27 and March 28. Because the examination was not concluded, and to serve the plaintiff's convenience, the examination was by mesne adjournments deferred until April 18. On April 18 the plaintiff did not appear for the continuation of his examination and his counsel advised defendants' counsel by telephone that plaintiff would not appear because in his attorney's opinion ‘ such depositions were unnecessary and a waste of time.’ Accordingly, the defendants now move for an order dismissing the complaint. All that is submitted in opposition is the affidavit of plaintiff's attorney, challenging the relevancy of the subject matter of the depositions and averring that Judge Noonan's order is being used ‘ for the sole purpose of harassing the said plaintiff in the conduct of this litigation.’
F.R.Civ.P. 30(d), 28 U.S.C.A. provides the vehicle for terminating or limiting an examination being conducted in bad faith or in such manner as to unreasonably annoy, harass or oppress the deponent or party. Instead of resorting to that orderly procedure the plaintiff has undertaken to ignore the order of the court. He has done so at his own peril. In the absence of any compelling reason for less than a dismissal with prejudice the defendants' motion in granted.
Cf. Producers Releasing Corp. de Cuba v. P. R. C. Pictures, 2 Cir., 1949, 176 F.2d 93.
It is unnecessary to consider the defendants' further prayer for relief predicated upon the plaintiff's failure to comply with a subpoena duces tecum.
Cf. Joseph L. Lee, Inc., v. Margon Corp., D.C.S.D.N.Y.1956, 18 F.R.D. 390.
It is so ordered.