The defendant moves to dismiss the complaint by reason of the plaintiff’s failure to appear in answer to a notice for the taking of his deposition as a party in the action. It appears from the answering affidavits that the plaintiff is suffering from tuberculosis and that at present he is an out-patient receiving treatment for that ailment in Mississippi.
Under the circumstances, and pursuant to the provisions of Rule 30(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., it seems that the rights of the plaintiff should be protected by an order directing that the deposition be taken on written interrogatories.
And further that, if the defendant is so advised, it may orally examine the plaintiff at the time that the latter comes to attend the trial, and not less than three days prior to the commencement thereof.
Motion denied. Settle order on notice.