James Gordon PENN, Plaintiff-Appellant, v. Clara RINALDI, doing business under the firm name and style of Queens Truck Rental, Defendant, and Mack Trucks Inc., Defendant-Appellee.
No. 9, Docket 28122.
United States Court of Appeals Second Circuit.
Argued Oct. 1, 1963.
Decided Oct. 1, 1963.
Joseph K. Guerin, New York City (Myers & Guerin, New York City, on the brief), for plaintiff-appellant.
John B. Shields, New York City (John L. Quinlan, Bigham, Englar, Jones & Houston, New York City, on the brief), for defendant.
David S. Konheim, New York City (Konheim & Halpem, New York City, on the brief), for defendant-appellee.
Before LUMBARD, Chief Judge, and FRIENDLY and SMITH, Circuit Judges.
PER CURIAM.
In open court we affirm the judgments of the District Court for the Southern District of New York which dismissed the complaint against the defendants Clara Rinaldi, doing business under the firm name and style of Queens Truck Rental, and against Mack Trucks, Inc. because of a prior judgment dismissing a similar complaint pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute. The effect of such a dismissal, prescribed by the Rule itself, is a matter of federal law, Kern v. Hettinger, 303 F.2d 333 (2 Cir., 1962)