Schnoedewind v. Clark

11 F.R.D. 106, 1950 U.S. Dist. LEXIS 3563

• Court: District Court, S.D. New York
• Decided: October 19, 1950
• Docket: Civ. No. 33-115
• Status: Published

Opinion

CONGER, Judge.

Motion by the defendant to dismiss this action on the ground that it has abated for the reason that the defendant Tom C. Clark, Attorney General of the United States as successor to the Alien Property Custodian, resigned from office on August 24, 1949, and on the same day was succeeded in office by J. Howard McGrath; that plaintiffs have not substituted the said J. Howard McGrath as defendant herein in the place and stead of defendant Tom C. Clark within six months after the said Mc-Grath took office, as required by Rule 25 (d), Federal Rules of Civil Procedure, 28 U.S.C.A.

On August 24, 1949 Tom C. Clark resigned as Attorney General of the United', States and was succeeded in office on the same date by J. Howard McGrath. No motion was ever made to- substitute Mr. Mc-Grath for Mr. Clark and the six months’ period within which substitution could have been made expired on February 24, 1950.

Since Rule 25(d) of the Federal Rules of Civil Procedure has not been complied with this motion must be granted. Buck v. Snyder, 85 U.S.App. D.C. 428, 179 F.2d 466; Bowles v. Wilke, 7 Cir., 175 F.2d 35; Bowles v. Ohlhausen, D.C., 71 F.Supp. 199; Becker Steel Co. of America v. Hicks, 2 Cir., 66 F.2d 497; Kuttroff v. Sutherland, 2 Cir., 66 F.2d 500.