Wadler v. Mediterranean Lines, Inc.

18 F.R.D. 322, 1954 U.S. Dist. LEXIS 4242

• Court: District Court, S.D. New York
• Decided: May 17, 1954
• Status: Published

Opinion

DIMOCK, District Judge.

These are motions to dismiss the complaint for failure to substitute as plaintiff the administrator of the estate of the deceased plaintiff, within two years after the death of the plaintiff, as required by Rule 25(a), Fed.Rules Civ. Proc. 28 TJ.S.C. In an earlier memorandum on these motions, I pointed out that, since the actions are to enforce state-created rights, it is arguable that New York law should be applied. See 4 Moore’s Federal Practice (2d ed.) pp. 522-23. I therefore gave counsel for plaintiff an opportunity to submit within 10 days an affidavit setting forth any facts which would prevent dismissal of the actions under the law of New York.

The ten-day period has elapsed with no communication from counsel for plaintiff. Since I have not been shown that the New York law prescribes a different result, I grant the defendants’ motions without deciding whether Rule 25 (a) F.R.C.P. imposes a mandatory two year limitation in diversity cases.

Complaints dismissed.