Dunn v. Pennsylvania R. Co., 96 F. Supp. 597 (N.D. Ohio 1951)

Peter B. Betras, W. Carlton Young, Youngstown, Ohio, for plaintiff.

Harrington, Huxley & Smith Norman A. Emery, Youngstown, Ohio, for defendant.

JONES, Chief Judge.

This is an action for damages for personal injury.

Defendant on December 9, 1949, served plaintiff with 22 interrogatories which to date have not been answered. Defendant, therefore, moves to dismiss this action pursuant to Fed.Rules Civ.Proc. rule 37(d), 28 U.S.C.A.

This rule speaks in terms of willful failure to answer, and it is not apparent that there has been a willful failure in this action. It was removed from a Common Pleas Court and possible ignorance of the Federal Rules on the part of the plaintiff's attorneys seems to be the more logical explanation of the failure to answer.

Furthermore Rule 37(d) says only that the court may dismiss the action. This would seem to give the court some discretion. Dann v. Compagnie Generale Trans Atlantiques, D.C., 29 F. Supp. 330.

The court, in exercise of its discretion and pursuant to Rule 37(a), orders the plaintiff to answer the interrogatories within ten days. Failure to answer within that time may lead to dismissal, on defendant's motion pursuant to Rule 37(d).