64 F.R.D. 690 | W.D. Okla. | 1974
ORDER OF DISMISSAL
The defendants have jointly moved to dismiss this cause of action pursuant to Rule 37(b)(2)(C) based upon plaintiff’s failure to answer interrogatories as ordered by this Court on February 21, 1974.
The files and records in this case reveal that defendants’ Interrogatory No. 2 was originally served upon plaintiff January 27, 1973. On September 21, 1973, plaintiff responded that it would require 60 days from the time its books and records were returned to it in order to prepare full and complete answers. On October 5, 1973, the plaintiff filed an amended answer stating that the information sought could be derived from the business records of the plaintiff. Thereupon, defendants filed a motion to compel an answer to Interrogatory No. 2, and on November 26, 1973, the Court ordered plaintiff to answer Interrogatory No. 2, and at the request of the plaintiff the Court granted the plaintiff 60 days to have written responses to Interrogatory No. 2 prepared from the plaintiff’s books and records by outside consultants. On January 28, 1974, plaintiff filed a second amended answer which was inadequate and revealed that the plaintiff’s books and records had not been reviewed. This answer was composed of an accountant’s advisory statement covering a period of eight months ending October 31, 1971; information that was already possessed by the defendants. On February 21,
The Court, having diligently reviewed the files, the briefs and law applicable to the issue raised herein, concludes that the defendants’ Motion for Dismissal pursuant to Federal Rules of Civil Procedure 37(b)(2)(C) should be granted due to the inexcusable and repeated failure of the plaintiff to make responsive answers to the defendants’ interrogatories and that this action is hereby dismissed with prejudice, and
It is so ordered.
On Motion to Set Aside Order of Dismissal
This cause came on for hearing before the Court on the 26th day of November, 1974, upon Motion of the plaintiff to set aside the Order of Dismissal entered herein on the 3rd day of September, 1974, and to reinstate the plaintiff’s cause of action.
The Court heard argument of counsel for plaintiff in support of said Motion; thereupon, counsel for defendants presented argument in support of their Motion that the Court was without jurisdiction to entertain the plaintiff’s Motion to Reinstate, plaintiff having previously appealed the Court’s Order of Dismissal. Thereafter, the Court overruled defendants’ Motion and Objection to the Jurisdiction of this Court.
Plaintiff introduced the oral testimony of the certified public accountant who had prepared the answer to interrogatory No. 2 in support of its Motion to Reinstate this Case. This being the only evidence plaintiff’s counsel desired to offer, the Court heard argument of plaintiff’s counsel in support of said Motion and argument of defendants’ counsel in opposition thereto.
After considering the evidence offered, arguments of counsel and briefs relevant to the issue before the Court, the Court finds that the testimony offered by the plaintiff fails to establish justification for the failure to provide an adequate answer to the defendants’ interrogatory No. 2 as had been ordered by the Court. The Court finds that the plaintiff was grossly negligent in failing to file a proper answer to said interrogatory; therefore, plaintiff’s Motion to Set Aside the Order of Dismissal and to Reinstate its Cause of Action is denied, and
It is so ordered.