Linneen v. Cunard Steamship Co.

144 F. Supp. 753, 1956 U.S. Dist. LEXIS 2843

• Court: District Court, S.D. New York
• Decided: September 27, 1956
• Status: Published

Opinion

SUGARMAN, District Judge.

Plaintiff commenced an action in this court against Cunard Steamship Co., Ltd., to recover damages for personal injuries allegedly sustained through defendant’s negligence. The complaint was filed on July 12, 1956. On or about February 2, 1956, plaintiff had commenced an identical action against this defendant in the forum, of her residence, namely, the United States District Court for the Northern District of Illinois, Eastern Division.

The action in this court was commenced to protect plaintiff’s rights if it eventuates that defendant is successful ultimately in proving that it was not “present” in the State of Illinois for venue purposes when service was there attempted to be made on it.

The defendant has noticed the deposition of the plaintiff on oral examination in both actions. Plaintiff now moves to quash the notice of examination in the action pending in this court.

There is no contention that the plaintiff is not expeditiously prosecuting her Illinois action. There is no reason why there should be pre-trial proceedings in the within action which will merely be repetitious of those conducted in the co-pending action.

The facts here present special circumstances warranting a departure from the general rule that an individual plaintiff, selecting this forum, come here to be examined. Irwin Co., Inc., v. Tide Pub. Co., Inc., D.C.S.D.N.Y., 13 F.R.D. 18,19; 4 Moore’s Fed.Prac. 2018 and 2027. Plaintiff’s motion is granted.

It is so ordered.