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Waterman v. Nelson

UNITED STATES COURT OF APPEALS, SECOND CIRCUIT.


decided: November 17, 1949.

WATERMAN
v.
NELSON ET AL.

Before L. HAND, Chief Judge and SWAN and FRANK, Circuit Judges.

Per Curiam.

The claim against the defendant, Rossell, is only for damages as he has no authority to reinstate the plaintiff in the Veterans Administration; and, as a claim for damages, it is invalid under our recent decision in Gregoire v. Biddle, 2 Cir., 177 F.2d 579. Rossell appeared only for himself, and none of the other defendants have been served, nor have they appeared, or asked for any relief. The action was, however, commenced against all the defendants by the filing of the complaint - Rule 3 - and we know of nothing in the general rules which would justify the district court, sua sponte, in dismissing it. It is true that Rule 30 of the General Rules for the Southern District of New York, which we quote in the margin,*fn* provides for its dismissal if no step has been taken in an action for a year; but, since the complaint has not been dismissed under that rule, it must be allowed to stand upon the files of the district court, awaiting any further action.

Judgment affirmed as to Rossell.

Judgment reversed as to the other defendants.


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