Free Order on Motion for Sanctions - District Court of Delaware - Delaware

Case 1:06-cv-00275-GMS

Document 127

Filed 05/12/2008

Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ) ) Plaintiff, ) ) v. ) ) BRETT J. CORMICK and ELAN SUISSE ) INTERNATIONAL HOLDINGS (USA), ) ) Defendants. ) ------------------------------------------------------ELAN SUISSE LTD., ) ) Plaintiff, ) ) v. ) ) ROBERT D. CHRIST, ) ) Defendant. ) ROBERT D. CHRIST,

Civil Action No. 06-275 GMS

Civil Action No. 07-60-GMS

ORDER WHEREAS, the defendant and cross-claimant, Brett J. Cormick ("Cormick"), has twice failed to appear for his properly noticed deposition in the related above-captioned matters; WHEREAS, on April 9, 2008, the plaintiff and cross-defendant, Robert D. Christ ("Christ"), filed a Motion for Sanctions (D.I. 115 in C.A. No. 06-275; D.I. 73 in C.A. No. 0760), which is unopposed; WHEREAS, on April 30, 2008, Cormick's counsel moved for leave withdraw based on Cormick's and the Elan Suisse entities' lack of cooperation and unwillingness to participate in the litigation (D.I. 125 in C.A. No. 06-275; D.I. 81 in C.A. No. 07-60); WHEREAS, on May 8, 2008, the court held a hearing on the motions; and

Case 1:06-cv-00275-GMS

Document 127

Filed 05/12/2008

Page 2 of 2

WHEREAS, the court, in considering the harsh sanctions of dismissal and default, has considered and balanced the six factors discussed in Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863, 868 (3d Cir. 1984), and finds that: · · · · · · Cormick is personally responsible for repeatedly failing to appear for his deposition without sufficient explanation and despite the efforts of his counsel; Cormick's repeated failures to appear for his deposition have caused Christ substantial prejudice in this action, considering Cormick's central role in the dispute and the late stage of the proceedings, with trial set for May 27, 2008; Cormick has conducted a campaign of dilatoriness through his repeated evasions of deposition; Cormick's course of conduct has been willful, in light of his inconsistent and inadequate explanations of his failures to appear; Alternative sanctions, such as fines or partial dismissal, would be ineffective due to Cormick's professed impecuniosity and unwillingness to participate in this litigation (D.I. 125); and The merits of Cormick's and the Elan Suisse entities' claims and defenses do not weigh strongly against dismissal and entry of default;

IT IS HEREBY ORDERED THAT: 1. Christ's Motion for Sanctions (D.I. 115 in C.A. No. 06-275; D.I. 73 in C.A. No. 07-60) is GRANTED; 2. All counterclaims brought by Cormick and Elan Suisse International Holdings (USA) against Christ in C.A. No. 06-275 are DISMISSED; 3. All claims brought by Elan Suisse Ltd. against Christ in C.A. No. 07-60 are DISMISSED; and 4. Default is entered in favor of Christ and against Cormick and Elan Suisse International Holdings (USA) in C.A. No. 06-275.

Dated: May 12, 2008

/s/ Gregory M. Sleet . CHIEF, UNITED STATES DISTRICT JUDGE