Opinion
No. 250, Docket 24746.
Argued April 11, 1958.
Decided April 28, 1958.
Jacob Rassner, New York City, for appellant.
Lundgren, Lincoln McDaniel, New York City (Franklin B. Lincoln, Jr., New York City, of counsel), for El Paso Natural Gas Co., appellee.
Richard Brill, New York City, for Republic Steel Corp., appellee.
Before SWAN, HINCKS and MOORE, Circuit Judges.
This is an appeal by plaintiff from an order dismissing his complaint because of his wilful failure to appear for the taking of his deposition. The facts are summarized in Judge Sugarman's memorandum decision. His discretionary power to make the order is clear. Rule 37(d), Fed.Rules Civ.Proc. 28 U.S.C.A. As this court stated in Gill v. Stolow, 2 Cir., 240 F.2d 669, 670, the proper disciplining of a party under circumstances of default must usually be left to the control of the trial judge. We see no abuse of discretion under the circumstances disclosed by the record. The judgment is affirmed.
See also First Iowa Hydro Elec. Coop. v. Iowa-Illinois Gas E. Co., 8 Cir., 245 F.2d 613, 628, certiorari denied 355 U.S. 871, 78 S.Ct. 122, 2 L.Ed.2d 76.