Another person involved in a case that was dismissed?
"This case is an unusual one, in that in its complaint, plaintiff does not seek damages,
but rather permanent injunctions against defendants and disgorgement of all proceeds gained
or compensation received from the allegedly illegal conduct described in the complaint.
(Complaint, at 34-37). The SEC does not dispute that it is not seeking penalties or to recover
investor losses or damages, as would a private plaintiff, but rather equitable relief. (Pl’s Mem.
Opp. Mot. for Jud. Not. at 5, n.5, at 7, n.7). As previously indicated, the SEC was tardy in its
discovery responses and in disclosing its expert opinions, but not so late as to merit preclusion.
Thus, the only lesser sanction, besides attorney’s fees, would be preclusion of any evidence
relating to the damages analysis which was due more than six months ago, and for which
plaintiff never sought any extension of time. Such preclusion effectively would bar plaintiff’s
claim for disgorgement, leaving only plaintiff’s requests for various permanent injunctions.
But as addressed before, such injunctive relief would bar defendants from pursuing their
livelihood, based upon events that happened some seven years ago, for which defendants
largely have been deprived of the ability to defend themselves properly. Under these
circumstances, there do not appear to be any adequate lesser sanctions that can be imposed
against plaintiff."
Bearing in mind that under Drake, “[n]o one factor is dispositive,” 375 F.3d at 254,
three of the five factors gravitate in the direction of dismissal under Rule 41(b), while the
remaining two militate against such dismissal. Under these circumstances, and especially in
light of the significant delay in this case, dismissal under Rule 41(b) is appropriate.
Therefore, Defendant Coons’ Motion to Dismiss for Lack of Prosecution [Doc. No.
152] and Defendants Durando and Packetport, Inc.’s Motion to Dismiss for Lack of
Prosecution [Doc. No. 154] are granted. Defendant Dotoli’s Motion to Join Motion [Doc.
Nos. 158-59] and Defendants Microphase and Packetport.com, Inc.’s Motions to Join Motion
[Doc. No. 160] are also granted.
SO ORDERED.
Dated at New Haven, Connecticut, March 21 , 2007.
/s/
Peter C. Dorsey, Senior U.S. District Judge
