Libel by the United States of America against 20 cases, each containing 12 dozen cartons, more or less of Jell-O vanilla flavor pudding. On libelant's motion to vacate, as improper, claimant's notice to take the deposition of the Commissioner of Food and Drug Administration.
Motion denied.
BRIGHT, District Judge.
Libellant's motion to vacate, as improper, claimant's notice to take the deposition of the Commissioner of Food and Drug Administration etc., dated December 9, 1946, is denied. Section 304(b), 21 U.S.C.A. § 334, of the Food, Drug and Cosmetic Act, applies to the seizure of property by process in rem; thereafter proceeding in the action, which is civil in its nature, is governed by the Rules of Civil Procedure. Three and Forty-Four Hundred Cans of Frozen Egg Products v. United States, 226 U.S. 172, 179, 33 S.Ct. 50, 57 L.Ed. 174; Eureka Productions, Inc. v. Mulligan, 2 Cir., 108 F.2d 760, 761. The motion is to vacate the notice in toto, not to limit it. If upon the examination improper matters are inquired into, libellant has its remedy under Rule 37, Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. Settle order on notice.