Gray v. South Atlantic Steamship Line, Inc.

21 F.R.D. 578, 1958 U.S. Dist. LEXIS 4479

• Court: District Court, D. Delaware
• Decided: January 23, 1958
• Docket: Civ. A. Nos. 1579, 1715
• Status: Published

Opinion

LAYTON, District Judge.

Insofar as concerns Civil Action No. 1579, Fed.Rules Civ.Proc. Rule 41(b), 28 U.S.C. provides in part:

.’“(b) Involuntary Dismissal: Effect Thereof. For the failure of the plaintiff to prosecute * * * a defendant may move for the dismissal of an action or of any claim against him * * * ”

In my judgment, plaintiff’s failure to prosecute this action for a period of three years under the circumstances above recited constitutes valid grounds for dismissal of the action. Salmon v. City of Stuart, 5 Cir., 1952, 194 F.2d 1004; Russell v. Cunningham, 9 Cir., 1956, 233 F.2d 806.

■ As to the libel (In Admiralty No. 1715), Admiralty Rule 38, 28 U.S.C.A., provides:

“Rule 38 Dismissal for failure: to prosecute

“If, in any admiralty suit, the libellant shall not appear and prosecute his suit, and comply with the orders of the court, he shall be deemed in default and contumacy; and the court may, on the application of the respondent or claimant, pronounce the suit to be deserted,, and the same may be dismissed with costs.”

This action is also dismissed upon the authority of Lynn v. American Barge Line Company, 3 Cir., 1955, 226 F.2d 934.

An Order will be entered in accordance herewith;