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Grace v. Fisher

decided: January 10, 1966.

MICHAEL P. GRACE, II, APPELLEE,
v.
THOMAS HART FISHER, APPELLANT



Waterman, Kaufman and Hays, Circuit Judges.

Author: Per Curiam

On April 26, 1965, appellant petitioned for the imposition of an attorney's lien in the amount of $57,654.09. On May 3, appellant, disregarding the direction of the district court, refused to appear for the taking of a deposition. On May 11, 1965, Judge Palmieri entered an order directing appellant to submit to a deposition and produce certain documents in New York, on or before May 28, 1965. On May 24, 1965, appellant applied for an order to show cause, to extend the time to submit to the taking of his deposition and for a stay of proceedings. Judge Palmieri, with the consent of appellee's attorney, extended the time by which appellant had to appear until June 14, 1965.

Appellant did not appear by June 14. Judge Palmieri found that appellant had willfully and deliberately defied the order of the court and, by order dated July 6, dismissed appellant's lien claim with prejudice. See Federal Rules of Civil Procedure, Rule 37(b) and (d).

In view of appellant's willful contumacy, we find no abuse of discretion in the order dismissing appellant's claim to a lien. We express no opinion on appellant's underlying contract claim for fees due for legal services, since, as we read the order from which the appeal was taken, it did not affect that claim.

This disposition of the appeal from the order of July 6 makes it unnecessary to consider the appeal from the judgment of May 10 directing that certain assets be handed over to appellee. That appeal is therefore dismissed.

The order of July 6 is affirmed. The appeal from the judgment of May 10 is dismissed.

19660110

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