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American Metal Finishers Inc. v. Navigator

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


March 15, 1979

AMERICAN METAL FINISHERS, INC., AND HARRY POLANS, PLAINTIFFS-APPELLANTS, AND JERRY GALE, PLAINTIFF,
v.
SVENSKA AB NAVIGATOR, DEFENDANT AND THIRD PARTY PLAINTIFF-APPELLEE, AND BROR FALKLIND AND HANS DIRTOFT, DEFENDANTS, V. SWEDISH CROWN CASUAL FURNITURE CORP., THIRD PARTY DEFENDANT

Appeal from the United States District Court for the Southern District of New York.

Present: HONORABLE IRVING R. KAUFMAN, Chief Judge.

HONORABLE WILLIAM H. MULLIGAN

HONORABLE MURRAY I. GURFEIN, Circuit Judges.

This cause came on to be heard on the transcript of record from the United States District Court for the Southern District of New York, and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the order of said District Court be and it hereby is affirmed in part and the appeal is dismissed in part.

1. Judge Pierce had the power to order security for costs as a sanction for failure to comply with pretrial orders in order to exercise effective control over the administration of the lawsuit, Leighton v. Paramount Pictures Corp., 340 F.2d 859, 861 (2d Cir. 1965), and to prevent repeated delays in the discovery process. Cf. Brick v. Dominion Mortgage & Realty Trust, 442 F. Supp. 283, 309 (W.D.N.Y. 1977). The district judge did not abuse his discretion either in setting security at $5,000, see Klein v. Adams & Peck, 436 F.2d 337, 339 (2d Cir. 1971), or in placing the case on the suspense docket until the plaintiffs had complied with his order.

2. The interlocutory order assessing $500 in attorney's fees as a discovery sanction under Fed. R. Civ. P. 37 is not appealable. See 4 J. Moore Federal Practice P26.83[7] (1976); Cromaglass Corp. v. Ferm, 500 F.2d 601, 608 (3d Cir. 1974) (en banc). Nor is Judge Pierce's denial of the plaintiff's motion to strike the defendant's third party complaint under Fed. R. Civ. P. 11 an appealable order. Cf. Libbey-Owens-Ford Glass Co. v. Sylvania Indus. Corp., 154 F.2d 814 (2d Cir.), cert. denied, 328 U.S. 859 (1946).

3. The appellee's request for double costs is denied. Costs will be taxed in accordance with Fed. R. App. P. 39.

19790315

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