Cole Systems Associates, Inc. v. Municipal Emergency Services, Inc.

Filing 87

OPINION AND ORDER: For the forgoing reasons, after careful consideration of the record and the applicable law, plaintiff's motion in limine asking the Court to preclude Defendant from offering the testimony of Terry Monday is GRANTED. (Signed by Judge Barbara S. Jones on 12/2/2010) (jfe)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

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COLE SYSTEMS ASSOCIATES, INC. 08 CV 6417 Plaintiff,
OPINION and ORDER v.

(BSJ)

MUNICIPAL EMERGENCY SERVI CE S , IN C . , Defendant. -----------------------------------X BARBARA S. JONES UNITED STATES DISTRICT JUDGE

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Cole Systems has moved in limine to preclude MES from calling Terry Monday as a witness at trial. that Cole Systems argues

(1) Monday's testimony is irrelevant to the issues to be (2) even if the testimony is relevant, the Court should

tried;

nonetheless preclude it as MES's only purpose for offering such testimony would be to prove that Cole acted in conformity with a previously alleged incident of wrongdoing in contravention of Rule 404(b); and (3) the Court should pre c lude such testimony because the danger of unfair prejudice the testimony poses substantially outweighs its probative value. Cole Systems also

argues that due to the belated disclosure of Monday as a potential witness, pursuant to Rule 26, her testimony should be precluded pursuant to Rule 37(c), Cole Systems' Motion is GRANTED. Terry Monday is a former o f f i c e r of C2 Media. also a customer of Co l e Systems. C2 Media was For the following reasons,

Monday's testimony is expected

to concern C2 Media's experience with Cole Systems. Specifically, her testimony is expected to show that Cole Systems

knew that it did not have the competence to perform the MES contract. Monday's testimony is also offered to show Cole

Systems' Modus Operandi of blaming the customer when their customization does not work. MES asserts that Monday's testimony

will help the jury determine whether Cole Systems or MES breached the contract and the damages suffered as a result. Rule 402 of the Federal Rules of Evidence states that "[aJll relevant evidence is admissible." Rule 401 defines relevant

evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would have been without the evidence." Under Rule 404(b), evidence of other wrongs or acts is not admissible "to prove the character of the person in order to show action in conformity therewith." introduced for "other purposes, opportunity, It may be admissible if it is such as proof of motive, knowledge, identity, or

intent, preparation, plan,

absence of mistake or accident." to be admitted for any p u r p o s e ,

In order for a prior incident the proponent must establish its

relevance by showing that it occ u r r e d under substantially similar circumstances as the incident at iss u e . Hotels Corp., No. 1 :05-cv-10307 (JFK), See Schmelzer v. Hilton 2007 WL 2826628, at *1

(S.D. N . '(. Sept. 24, 2007). The admission of such evidence, other than to prove propensity, is subject to the Rule 403 balancing test between Ru l e 403 provides that

probative value and unfair prej udice.

"[aJlthough relevant, evidence may be excluded if its pr o b a t i v e

value is substantially outw e i g h e d by the danger of unfair prejudice." Defendants do not claim that Monday has any first-hand knowledge about t he contract between MES and Cole Systems or the per f o r m a n c e thereof. There i s no clear conne c t i o n between Despite the

Monda y ' s testimony and the d isputed issue s at trial.

s i mi laritie s between the ty p e s o f software installed, there has been no showing that C2 Media and MES, the co n t r a c t s , or the projects are sufficiently similar. Monday's testi m o n y concerns

an unrelated project that will shed little, if any, light on the performance of the co n t r a c t at issue. The r e also has been no

sh ow i n g that Cole Sys t e m s has a unique pattern of blaming the customer for not being able t o use the software. Thus, it

appears that Monday's testimony would have minimal probative value . The Court also fin d s that the minimal probative va lue of the testimony i s substantially outwe i g h e d by the danger of unfair prejudice, confusion of the issue s , and the potential to mislead the jury. If Monday i s allowe d to testify , the perf o r m a n c e of

the contr a c t between C2 Media and Cole Systems will become an is s u e and engender a trial within a trial. To rebut Monday's

testimony, Cole Systems will likely be required to call witne s s e s and introduce evidence to explain the sc o p e of that project and justify the amount of time spent on it-essentiall y a parallel proceeding to the MES acti o n against Cole Systems. Finally, the identity of Monday was not disclosed to Plaintiff until September 28 , 20 1 0 , duri n g th e exchange of drafts

of the updat e d pretrial o r d e r .

MES admits that it first became MES did not serve a

aware of Monday in March of 2009.

supp l emental Rule 26 Disclosure listing her as an individual likely to have discoverable information or seek t o amend the original pretrial order that wa s filed shortly before it became awar e of M n d a y . o The Court finds this discovery vio l ation is

sufficient in and of itself to prec l u d e Monday ' s testimony. For the forgoing reasons, after careful consideration of t h e record and the app l icab l e law, plaintiff's motion in limine asking the Court to preclude Defendant from offering the testimony of Terry Monday is GRANTED.

SO ORDERED:

JONES UNITED STATES DISTRICT JUDGE
S.

B~ARA

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Dated:

New York , New York December 2 , 2010