Cole Systems Associates, Inc. v. Municipal Emergency Services, Inc., No. 1:2008cv06417 - Document 87 (S.D.N.Y. 2010)

Court Description: 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)
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Cole SystemsUNITED STATES DISTRICT COURT Associates, Inc. v. Municipal Emergency Services, Inc. Doc. 87 SOUTHERN DISTRICT OF NEW YORK -----------------------------------x COLE SYSTEMS ASSOCIATES, INC. 08 CV 6417 (BSJ) Plaintiff, OPINION and ORDER v. MUNICIPAL EMERGENCY SERVI CES, IN C ., Defendant. -----------------------------------X BARBARA S. JONES UNITED STATES DISTRICT JUDGE . . ..... -- - 11 ' SDNY DOCUlvlliNT , ELECTRONICALLY FILED 'IDOi'#' i I I DATE !ILED: !I II' \ ( I?JOW, i I 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 tried; (2) even if the testimony is relevant, the Court should 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), For the following reasons, Cole Systems' Motion is GRANTED. Terry Monday is a former o fficer of C2 Media. also a customer of Co le Systems. C2 Media was 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, intent, preparation, plan, absence of mistake or accident." to be admitted for any p u rpose, knowledge, identity, or In order for a prior incident the proponent must establish its relevance by showing that it occ u rred 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 probative value and unfair prej udice. Ru le 403 provides that "[aJlthough relevant, evidence may be excluded if its pr o bative value is substantially outw eighed 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 formance thereof. There i s no clear conne c ti on between Monda y 's testimony and the d isputed issue s at trial. Despite the s i mi laritie s between the ty pes o f software installed, there has been no showing that C2 Media and MES, the co ntra cts , or the projects are sufficiently similar. Monday's testi mony concerns an unrelated project that will shed little, if any, light on the performance of the co ntract at issue. The re also has been no sh ow in g that Cole Sys tem 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 ds that the minimal probative va lue of the testimony i s substantially outwe ighed 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 ormance of the contr act between C2 Media and Cole Systems will become an is sue and engender a trial within a trial. To rebut Monday's testimony, Cole Systems will likely be required to call witne sses and introduce evidence to explain the sc ope of that project and justify the amount of time spent on it-essentiall y a parallel proceeding to the MES acti on against Cole Systems. Finally, the identity of Monday was not disclosed to Plaintiff until September 28 , 20 1 0 , duri ng th e exchange of drafts of the updat ed pretrial o rd er . MES admits that it first became aware of Monday in March of 2009. MES did not serve a 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 onday . The Court finds this discovery vio l ation is sufficient in and of itself to prec lu de 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 Dated: New York , New York December 2 , 2010 S. /