Kiachif v. Philco International Corp.

S.D. New York

Kiachif v. Philco International Corp.

10 F.R.D. 278, 1950 U.S. Dist. LEXIS 3635

CourtDistrict Court, S.D. New York

DecidedApril 6, 1950

StatusPublished

Cited by1 cases

This text of 10 F.R.D. 278 (Kiachif v. Philco International Corp.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kiachif v. Philco International Corp., 10 F.R.D. 278, 1950 U.S. Dist. LEXIS 3635 (S.D.N.Y. 1950).

Pincite

Opinion

McGOHEY, District Judge.

Defendant moves under Federal Rules of Civil Procedure, Rule 37(d), 28 U.S.C.A., to dismiss the complaint for failure of plaintiff Gholam H. Kiachif to appear for deposition pursuant to notices served on his attorney January 21, 1949 and February 28, 1950.

It appears that Gholam H. Kiachif, who is a resident of Iran, was in this country in 1948 but, as the result of a heart attack, [279]*279was in a hospital continuously from the day of his arrival until his departure, which was prior to the service of the notice of January 21, 1949; and that he was in Iran at the time of the service of the second notice. His attorney, upon receipt of the notice of February 28, 1950, informed the defendant’s attorney that ill health and the great distance involved precluded appearance of this plaintiff.

There is clearly no showing that the plaintiff’s failure to appear was wilful. Indeed, he was out of the country when the notice was served on his attorney.

The defendant urges quite strongly that it must have this plaintiff’s testimony in order to prepare its defense. And plaintiffs’ attorney says that he, too, would like to have it; and that he will gladly “join in an application for the examination of Gholam H. Kiachif by means of letters rogatory.” If the parties agree, this may be considered as a motion under Rule 28(b) for an order directing issuance of letters rogatory to the appropriate judicial authority in Teheran for examination of Gholam H. Kiachif, and they may agree on an appropriate order to he submitted.

The defendant, by another motion, decided herewith, 10 F.R.D. 277, seeks letters rogatory to examine a witness in Teheran. That motion is being granted and so both examinations could proceed, if not simultaneously, then in quick succession. This would seem to afford both parties what they want and save time also.

The motion to dismiss the complaint, however, is denied.

Free access — add to your briefcase to read the full text and ask questions with AI

McGOHEY, District Judge.

Defendant moves under Federal Rules of Civil Procedure, Rule 37(d), 28 U.S.C.A., to dismiss the complaint for failure of plaintiff Gholam H. Kiachif to appear for deposition pursuant to notices served on his attorney January 21, 1949 and February 28, 1950.

It appears that Gholam H. Kiachif, who is a resident of Iran, was in this country in 1948 but, as the result of a heart attack, [279]*279was in a hospital continuously from the day of his arrival until his departure, which was prior to the service of the notice of January 21, 1949; and that he was in Iran at the time of the service of the second notice. His attorney, upon receipt of the notice of February 28, 1950, informed the defendant’s attorney that ill health and the great distance involved precluded appearance of this plaintiff.

There is clearly no showing that the plaintiff’s failure to appear was wilful. Indeed, he was out of the country when the notice was served on his attorney.

The defendant urges quite strongly that it must have this plaintiff’s testimony in order to prepare its defense. And plaintiffs’ attorney says that he, too, would like to have it; and that he will gladly “join in an application for the examination of Gholam H. Kiachif by means of letters rogatory.” If the parties agree, this may be considered as a motion under Rule 28(b) for an order directing issuance of letters rogatory to the appropriate judicial authority in Teheran for examination of Gholam H. Kiachif, and they may agree on an appropriate order to he submitted.

The defendant, by another motion, decided herewith, 10 F.R.D. 277, seeks letters rogatory to examine a witness in Teheran. That motion is being granted and so both examinations could proceed, if not simultaneously, then in quick succession. This would seem to afford both parties what they want and save time also.

The motion to dismiss the complaint, however, is denied.

Cite This Page — Counsel Stack

Bluebook (online)

10 F.R.D. 278, 1950 U.S. Dist. LEXIS 3635, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kiachif-v-philco-international-corp-nysd-1950.

Opinion

Related

Cite This Page — Counsel Stack