WhitServe LLC v. Computer Packages, Inc et al

Filing 778

ORDER denying 601 motion to dismiss with prejudice. Signed by Judge Alfred V. Covello on January 28, 2014. (Meskill, J)

3:06-cv-1935(AVC) January 27, 2014. The defendant’s [601]
motion to dismiss with prejudice is DENIED.
“The sound legal principle guiding the choice of the
sanction to impose for dilatory conduct is that the remedy of
dismissal is pungent, rarely used, and conclusive. A district
judge should employ it only when he is sure of the impotence of
lesser sanctions.” Ocello v. White Marine, Inc., 347 F. App'x
639, 641 (2d Cir. 2009) (quoting Dodson v. Runyon, 86 F.3d 37,
39 (2d Cir. 1996) (internal quotation marks and brackets
omitted)).
CPi argues that, on May 18, 2010, Wesley Whitmyer and
trial counsel for WhitServe presented at trial a fabricated
exhibit, Plaintiff’s 264, and misleadingly testified to the jury
about it in the trial of this case. Specifically, CPi argues
“Whitmyer’s fabricated exhibit and misleading testimony were
highly prejudicial—indeed, they likely were critical both to the
liability verdict, and to the damages award that compelled this
damages retrial—and remain directly pertinent to the remedies
that plaintiff continues to seek in this lawsuit.” According to
CPi, “the Court should exercise its inherent authority and
dismiss the case as a sanction for WhitServe’s misconduct.
WhitServe responds that “[t]here was no impropriety in Mr.
Whitmyer preparing PLT 264.” Specifically Whitserve argues that
CPi has not identified any “misleading” testimony and cannot
“identify any prejudice it has suffered.” WhitServe argues “CPi
had the opportunity at trial to challenge WhitServe’s evidence
and present its own but failed to do so successfully.”
The court concludes that CPi has failed to articulate a
basis for the relief requested. Therefore, the motion to dismiss
is denied.
SO ORDERED.
________/s/_________________
Alfred V. Covello
United States District Judge