Opinion
No. 22, Docket 21349.
Argued November 2, 1949.
Decided November 17, 1949.
Corinne C. Waterman, pro se.
John F. Ryan, New York City, John F.X. McGohey, New York City, United States Attorney for the Southern District of New York, argued for defendant-appellees.
Before L. HAND, Chief Judge and SWAN and FRANK, Circuit Judges.
The claim against the defendant, Rossell, is only for damages as he has no authority to reinstate the plaintiff in the Veterans Administration; and, as a claim for damages, it is invalid under our recent decision in Gregoire v. Biddle, 2 Cir., 177 F.2d 579. Rossell appeared only for himself, and none of the other defendants have been served, nor have they appeared, or asked for any relief. The action was, however, commenced against all the defendants by the filing of the complaint — Rule 3 — and we know of nothing in the general rules which would justify the district court, sua sponte, in dismissing it. It is true that Rule 30 of the General Rules for the Southern District of New York, which we quote in the margin, provides for its dismissal if no step has been taken in an action for a year; but, since the complaint has not been dismissed under that rule, it must be allowed to stand upon the files of the district court, awaiting any further action.
"Causes which have been pending in this Court for more than one year without any proceedings having been taken therein during such year may be dismissed as of course for want of prosecution by the Court on its own motion, at a general call of such causes as the Court may, from time to time, direct to be included in a general call, notice of which call shall have been published in the New York Law Journal or otherwise as the Court may direct."
Judgment affirmed as to Rossell.
Judgment reversed as to the other defendants.