`Case 1:12-cv-00574-LPS Document 398 Filed 01/26/17 Page 1 of 14 PageID #: 13234
`
`‘
`‘
`ROBERT BOSCH-LLC,
`
`‘IN THEUNITED STATES «DISTRICT COURT 1
`FOR THE DISTRICT ‘OF DELAWARE
`‘
`
`.V..
`
`'
`
`1
`1
`.:
`.ALBEREE PRODUCTS, INC, API KOREACOq ,:
`LTD., SAVER AUTOMOTIVE PRODUCTS,
`‘
`INC, .and'COSTCO WHOLESALE
`CORPORATION
`'
`
`Plaintiff,
`
`.
`
`Civil Action No .—12.574~LPS
`(CONSOLIDATED)
`'
`FILED UNDER SEAL
`’
`
`Defenéants. I
`
`V
`
`‘ COSTCO WHOLESALE CORPORATION,
`
`.11]..1
`
`‘CofintenPlaintiff,
`
`V.
`
`ROBERT BOSCH LLC and ROBE-RT BOSCH
`
`GMBH,
`
`Counter~Defendants.
`
`:
`
`David E. Moore, Bindu A. Palapura, Stephanie E. O’Byme? POTTER ANDERSON’&
`, CORROON LLP, Wihnington, DE
`
`Mark A. Hannemann, SHEARMAN & STERLING LLP, New York, NY
`
`Rose Cordero Prey,'Ksenia Takhistova, KENYON & KENYON LLP, New York, NY
`
`Attorneys for Plaintiffs
`
`, MaryB Graham, Thomas Curry AnthonyD Raucoi, MORRIS, NICHOLS, ARSHT &
`TUNNELL LLP, Wilmington, DE
`James W Dabney, Diane E Litton, James R. Klaiber, Richard M KOeh1,Stefanie M Lopatkin,
`HUGHES HUBBARD & REED LLP New York, NY
`
`Attomexs for Defendant Costco Wholesale Comoration.
`
`.
`
`'
`
`'
`
`A
`
`
`'MEMORANDUMOPINION ’
`
`, January 24,2017
`Wilmington, Delaware
`
`
`
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`ST
`
`V Us.District51%
`
`Q/\’
`
`j
`
`Pending before the Court is Defendant Costco "Wholesaie Corporation’s (“Costco"
`
`Motion to Dismiss Plaintiff’s Complaint Pursuantto Federal Rule ofCivil Procedure .3'7Cb)(2).
`(D1. 372) (“Motion”) For‘the reasons'belOw, the Court will deny costco’s Motion, but Wiil
`' require that Costco 'be reimbursed for its reasonabie'attomey’s fees.
`
`I.
`
`BACKGROUND
`
`This is .apatent infringement lawsuit. Robert Bosch GmbI-I (“BGmbI—I”) is the parent of
`PlaintiffRobert Bosch LLC (“BLLC”). (See DLI. 311 114) BLLC sued various defendants inthis
`
`Court, including Costco, for infringement ofpatents coveréng’windshield Wiper technology.
`
`(See
`
`geneirzlly D1. 355 at 1-4 (Memorandum Opinion ofMarch 17, 2016)) BGmbH is the former
`
`owner ofthe patents-in—suit and has a financial interest in the outcome of thelitigation: both a -
`
`directfinancial interest, as it could obtain between _ofany damages the suit generates,~
`
`and indirectly, as BLLC’S corporete parent. (D1. 266 En. 12 at 2~3; Dfl. 392, Transcript (“TL”)
`i at 40)
`
`I
`
`On December 2, 2015, Costco requested a teleconference regarding BLLC’S alleged
`failure to comply with discoyery obligations; specifically, BLLC’S failure to produce BGmbH’s
`“agreements with vehicle manufacturers concerning the supply oforiginal equipment wiper
`systems and production of specifications relating to such systems.” (D1, 262 at 1) Theparties
`
`submitted letter briefs on the discovery dispute and the court heard argument during a
`teleconference on December 17., 2015. At the conclusion ofthe December 17 discovery call, the .
`
`Court found (among other things) that the requested documents fell Within the “broad scope of
`
`relevance which is governing here”) (DJ. 277 at 23) and ordered BLLC to produce the disputed
`
`‘ l
`
`
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`documents, Without regard to whether BLLC or BGmbH controlled the documents.
`
`After providing the parties an opportunity to meet and confer on the details of
`
`implementing the Court’s order, on December 22, 2015 the Court ordered that, “[o]n or before
`January 8, 2016, BLLC shall produce to counsel for Costco all agreements between BGmbH and
`
`‘OEMS [original equipment manufacturerslrelating to wipers or wiper systems, the OEM
`
`specifications for wipers or wiper systems to be supplied, and related development documents,
`. including meeting minutes and correspondence.” (D1. 274 at 2 (“December 22 Order”))
`
`Notably, the form ofthe December 22 Order was prepared by the parties and BLLC did not
`
`objectto its language. (D1. 272)
`
`I
`
`BLLC admits that it did not comply with the December 22 Order and its January 8, 2016
`
`- deadline. (See D1. 381 at 1041) In partiai defense, BLLC explains that it was “negotiating” the
`
`scope of discovery with Costco and the procurement of documents from BGmbH until at least
`
`January 15, 2016. (Id) BLLC did not inform the Court of these negotiations until, on January
`
`15, 2016, BLLC filed a Motion for Relief from the December 22 Order. (D1284) 1n Costco’s
`briefopposing DLLC’S Motion for Relief, Costco cited evidence ofBLLC’S repeated failure to
`
`comply with discovery obligations. (See D1. 315 at 1-8) The Court denied BLLC’S Motion for
`
`i
`Reliefon April E1, 2016. (DI. 368)
`BLLC’s stated reason for not timely producing the documents is that BGmbH', BLLC’S
`
`parent, refused to search for and produce any documents When BLLC requested BGmbH to do
`
`so, even when BLLC’s requests were backed by an order ofthe Court, (See 13.1. 381 at 10) (“The ‘
`sole reason that BLLC had not already produced the documents —— when Costco first asked for
`them, and again .
`.
`. in December when Costco proposed to raise the issue by discovery letter to
`
`
`
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`the Court ~ was that BLLC did not have either physical or legal access to any of such documents.
`BLLC had asked‘forthem repeatedly, and 386th had repeatedly rejected its requests, even
`when partial summaryjudgment against BLLC had been explicitly threatened as a
`
`d
`
`consequence”)
`
`Also on January 15, 2016, 13(3th consented to this Court’s jurisdiction over it as a partv
`to this case. (See D.l. 283) Previously, on September 30, 2016, Costco had filed an Answer to
`BLLC’S) Second Amended Complaint and asserted a counterclaim against BLLC and BGmbI-I.
`
`(DI. 244) In response, BGth had filed a [notion to dismiss the claims against it. due to lack of
`personal jurisdictiod.
`(13.1. 2.63, 264)
`On January-29, 2016, Costco subniitted a letter requesting dismissal ofBLLCfs complaint
`pursuant to Rule 37(b)(2) due to BLLC’S discovery misconduct. (Dtl. 307 at 1) The Court heard
`argument on Costco’s request during a teleconference‘held on February 4, 2016. (See D.I. 349)
`At thelcvonclusion ofthe teleconference, the Court stated that“Costco is entitled to some relief,
`possibly including dismissal ofthe entire case,” but stated that the parties would be‘permittedto
`be heard more fully before the Court)would make a final decisionregarding dismissal. (Id. at 25)
`On March 14, 2016, Costco subinitted a letter requesting (1) vacatur of“all existing
`unexpired deadlines in the current Scheduling‘Order” and (2) leave to submit fiili briefing in
`
`support of a motion to dismiss pursuant to Rule 37(b)(2).
`
`(131.1. 354) On March 17, 2016, the
`
`Court granted Costco’s requests and (1) stayed this case, vacating deadlines in the governing
`Scheduling Order, and (2) granted leave for Costco to file its MotioIi. (D1. 356 {12; see also D11.
`
`355 at 14—16)
`
`CostCo filed its Motion on April 22, 2016.. (D1. 372) The parties completed briefing on
`
`
`
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`June 10, 2016. (D1. 373, 381, 383) The Court heard oral argument on November 29, 2016.
`
`(See Tr. at 1) )
`
`II.
`
`LEGAL STANDARDS
`
`,' Rule 37(b)(2) states, in pertinent part:
`
`If a party or a party’s officer, director, or managing agent — i
`or a witness designated under Rule 30(b)(6) or 31(a)(4) -— fails to
`obey an order to provide or permit discovery, including an order
`under 'Ruie 26(t), 35; or 37(a), the court where the action is
`pending may issue filrther just orders. They may include the
`following: ... . dismissing the action or proceeding in whole or in
`part .
`. . . Instead of or in addition to the orders above, the court
`must order the disobedient party, the attorney advising that party,
`or both'to pay the reasonable expenses, including attorney’s fees,
`caused by the failure, unless the faiiure was substantially justified
`or other circumstances make ’an award of expenses unjust.
`
`In Poulis v. State Farm Fire & Casualty C01, 747 F.2d 863, 868 (3d Girl 1984), the Third
`
`Circuit prescribed six factors that “a district court must consider before it dismisses a case”
`
`pursuant to Rule 37(b)(2). Knoll v. C513) afAllentown, 707 F.3d 406,, 409 (3d Cir. 2013). The
`
`factors are:
`
`(1) the extent of the party’s personal responsibility; (2) the
`prejudice to the adversary caused by the failure to meet scheduling —
`orders and reSpond to discovery; (3) a history of dilatoriness;
`(4) Whether the conduct of the'party or the attorney was willfill or
`in bad faith; (5) the effectiveness of sanctions other than dismissal,
`which entails an analysis of alternative sanctions; and (6) the
`meritofiousness of the claim or defense.
`
`Poulz's, 747 F.2d at 868.. “[D]ismissals with prejudice or defaults are drasticsanctions, termed
`
`‘extréme’ by the Supreme Court .
`
`.
`
`. .” Id. at 86768 (quoting Nat’l Hockey League v, Metro.
`
`Hockey Club, Inc, 427 us. 639, 643 (1976)),
`
`
`
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`III.
`
`DISCUSSION
`
`As the parties focused their briefing on analysis ofthe Poulis factors, the Court will do so
`
`as well.
`
`A;
`
`Poulis Factors
`
`1.
`
`BLLC’s Responsibility
`
`In its discovery letter submitted prior to the Court’s December 17, 2015 discovery
`
`teleconference, Costco argued that BLLC had control over the disputed documents, citing an
`
`Administratiue Law Judge’s (“ALI”) decision in a case before the International Trade
`Conimission in which BLLC had also claimed that it did not have control over documents in the
`
`possession of its parent. (DI. 266 at 2—3) The ALJ’s decision (D1. 266 Ex. 13) analyzed the
`
`issue of control under the “alternate grounds” for establishing control set out in Camden Iron &
`
`Ivfetal, Inc. v. Marubeni America Corp, 138 FRI). 43 8, 441—42 (l3.N.J. 1991). The ALI found
`
`that BLLC had control over disputed documents under three of Camden’s alternate grounds:
`
`(1) “[tlhe relationship is such that the agent—subsidiary can secure documents ofthe
`
`principal-parent to meet its own business needs and documents helpful for use in litigation,”
`
`(2) “[t]here is access to documents when the need arises in the ordinary course of business,” and
`
`(3) the “subsidiaiy was marketer and servicer of parent’s product .
`
`.
`
`. in the United States.” Id.
`
`The issue of BLLC’s control over documents in the possession of its parent was also
`
`litigated in Robert Bosch LLC v. Snap~t2n Inc, 2013 WL 823330 (ED. Mich. Mar. 6, 2013), in
`which the Court ordered BLLC to produce documents Within the posseSSion ofBGmbH. In
`
`Snap-On, the Court found that “[i]t strains credulity that [BLLC] would be unable to obtain from
`
`[BGmbll] documents related to [a,patent~in—suit] that would assist [BLLC] in achieving a
`
`
`
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`i successful outcome in this litigation.” Id. at *3. Consequently, the Court held that “Defendants
`will not be foreclosed from obtaining [from BLLC] simiiar documents that may aid in their
`
`defense.” Id.
`
`I The Court agrees With the analysis from Snap~0n. Therefore, the Court holds that Cestco
`
`should have been given accessto BGmbH—held documents that Were responsive to Costco’s
`
`requests, regardless ofwhether such documents were supportive ofBLLC’s positions in this
`
`litigation. BLLC had effective control over production of such documents.
`The Court’s finding as to BLLC’s control is based on, among other things: BLLC’S ability
`to seizure from BGmbH documents that BLhC appears to have viewed as helpful to’BLLC’s
`litigationpositionduring this litigation. See GerlingInt7Ins. Co. v. C].R.: 539 F.2d'131, 141
`(Ed Cir. 1988) (“Where the relationship is thus such that the agent-subsidiary can secure
`documents ofthe principal-parent to meet its own business needs and documents (helpful for use
`
`in the litigation, the courts will not permit the agent~subsidiary to deny control for purposes of
`. discovery By an opposing party”); see also Snap—0n, 2013 WL 823330, at‘i‘3 (“Providing highly?
`, relevant documents in litigation constitutes a business need .
`.
`. 3’) (internal bracketsand
`‘
`
`quotation marks omitted). BGmbH has selectively provided to BLLC certain documents at
`various points in this litigation, vvhich BLLC has produced to Costco. (See 381 at 2, 5; 383 at 6—
`
`7)
`
`Further, BLLC and BGmbH are parties to a joint venture agreement. (See 111. 266 Ex.
`
`12) Pursuant to this agreement, the patents~in~suit were property contributed«by BGmbH, in
`support ofits jointefforts with BLLC to enforce patent rights and obtainrevenue. (See id. at 26)
`It is undisputed that BGmbH will benefit financially from any revenue generated by BLLC’s
`
`, 6
`
`
`
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`litigation ofthe asserted patents. (See id; see generally D1. 267; T1: pat410) In fact, BGmbH
`
`stands to women—ofany‘damages awarded as a result ofthis lawsuit (See Del. .266 Ex.
`12 at 2—3)
`V
`The ciose interactions between B'LLC and BGmbH with respect to wiper blade products
`i provide additional support for the Court’s finding of control, as BLLC is able to obtain ~
`.. documents it needs in the ordinary course ofbusiness in orderto carry out BGian’s Operations
`’ in the United States. (See D1. 266 Ex. 13 at 546) Hence, the record as a whole supports a ’
`finding that BLLC and BGmbH are acting in Concert in connection with the patents-in—suit and in
`connection with this litigation.
`V
`In counten’ng the argument that it had control over the pertinent documents, BLLC’s ‘
`
`I
`
`strongest point is that it proved unable to obtain requested documents at an earlier point in this
`
`I litigation, even after the Court indicated that it would like}? grant partial summatyjudgment to
`
`Costco should BLLC fail to produce those documents. (See‘Dl. 381 at 1; see also Transcript of
`hearing heldJune 8,2015: DE. 204 at 46—41 (“ms another alternative to somehow make clear to
`
`the plaintiffthat iftheir parent doesn’t come in and provide discovery within a very reasonable
`amount oftime, that they willbe deemed to have not met their burden andsumniaryjudgment
`would be forthcoming or is itjust too late'l”); In at 28430)‘ The record supports ELL-C’s
`characterization ofWhat occurred. Nonetheless, the Court does not find from these facts that
`BLLC never (including after entry ofthe December 22 Order) had control over any portion ofthe
`
`documents it was ordered to produce. Instead, it suggests only that BGmbH was recalcitrant in
`
`meeting its obligations to BLLC and was willing to refuse to meet those obligations even at. the ‘-
`
`cost of losing a portion of BLLC’S case. That recalcitrance ended when, but only when, it
`
`
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`
`became clear.that the entirety ofthe case might be dismissedas a sanction for failing to provide
`to BLLC documents to which BLLC was entitled to get from BGmbI-l.
`
`Because BLLC had control over the disputed documents, BLLC is largely’respcnsihle for
`its failure to produce the required documents and the failure to comply with the Court’s
`
`December 22 Order. Therefore, this first Poulis factor weighs in favor of dismissal.
`
`,
`
`2.
`Prejudice to Costco
`During the February 4, 2016 teleconference regarding BhLC’s discovery misconduct, the ‘
`
`Court stated that “the circumstances as they have evolved are highly prejudicial to Costco,
`
`particularly given where we are in the schedule: ‘.
`
`.
`
`. close to the end offact discovery, which had
`
`been extended previously?” (D1- 349 at 26) (internal grammar added) The Court continues to
`
`' hold this View, as Costco Was deprived of the opportunity to developits defenses during fact
`
`discovery within the necessary context of full production of responsive documents. (See, e.g.,
`
`D1. 373 at. 91 1) (discussing impact of late production of doeuments on development of Costco’s
`* invalidity defenses)
`’
`
`At least some of the documents that have been belatedly produced are relevant to
`
`Costco’s obviousness defense. (See, e.g., D1. 373 at 941) (“By failing to produce
`
`BGMBHOOl4875 until March 8, 2016, BLLC denied Costco any meaningful opportunity to
`develop what its contents showed about the skill level in the art ofthe ’926 Patent at relevant
`times '.
`.
`. 3’) Moreover, the Court shares some ofCostco’s concerns that‘BLLC’S produCtion still
`may not be complete. (Sec 9.1. 373 at 5—8) (citing, for example, evidence ofBLLCi’s lack of
`
`institutional knowledgeahout whether, when, orhow any document searches were performed on
`
`certain requested topics) Costco is entitled to a full and fair production of all non~privileged,
`
`
`
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`responsive documents as well as a full and fair opportunity to develop its defenses with an
`
`understanding ofthe full scope of these materials. Costco’s loss of this opportunity (to this
`
`point) has been prejndieialto it.
`i Thus, this factor weighs in favor of dismissal.
`
`3.
`
`' BLLC’s History of Dilatoriness
`
`As discussed above and in Cosmo’s brief opposing BLLC’s Motion for Relief from the
`
`Court’s December 22 Order, BLLC repeatedly failed to comply with the Court’s orders and to
`live uh to its discovery obligations. (See D1; 315 at 1-8) The Bosch parties have also engaged in
`
`* similar behavior’in cases before other tribunals. (See DJ. 266 Ex. 13; Snap—On, 2013 WL at
`823330. This factor 1tveighs in favor ofdismissed.
`i
`
`'
`
`Willfulnessnor Bad Faith
`I 4.
`BLLC willfully disobeyed this court’s December 23 Order by failing to proditce the
`documents ordered to beproduced byJanuary 8, 2016, and by failing even to notifythe Court of
`why such production had not occurred until Jannary 15, 2016! While BLLC’s position regarding ‘
`
`its lack ofphysical control over documents held by BGmbH could have been asserted in good
`faith, this factor‘sfipports disrnissalbeceuse BLLC Willfullyfailed to exercise the control it had
`over the responsive documents held st BGmbH and, therefore, willfullyviolated the December
`> 22 order.
`‘
`BLLC represents that BGmbl-I failed to provide certain doauments to BLLC for reasons
`
`including concerns abdut European privacy laivs.
`
`(See, eg, Tr. at.28«29; seealso genera”): id.
`
`at 5465 (BLLC counsel: “I apologize again for everything that has come out ofthat decision by
`
`- the German company not to‘providc them [i.e., discovery] voluntarily. Whatever‘the reasons
`
`
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`were, and I’m sure they were good reasons-I regret that, but to blame the US. operating
`
`company and suggest that they Were contumaciously; or Whatever the vyord was, not respecting
`the etithority ofthis Court, that is not whathappened?» Even accepting BLLC’S statements as
`true, they donot excuse BLLC’s obligations - as a party that initiated litigation in this Court, in
`this country, well knowing the discovery obligationsthat would result, due to therFederat Rules;
`
`of Civil Procedure, governing case. law, and the fact that BLLC had already been found by other
`US. judicial bodies to have “control” otter documents in the physicai possession ofBGian “to
`prodiice reSponsive documents in this action. Confidentiality concerns can be handled in the
`course ofthislitigation through the Protective Order the Court has entered (see D1. 65), Which
`
`a
`
`the Court could amend if necessary.
`
`5.
`
`Alternative Sanctions
`
`BLLC quotes Poulis as cautionjng that “[d]ismissal inust be a sanction oflast, not first,
`- resorti?’ Poulz's, 747 F.2d at 869. The Court agrees with 13th that dismissal is not the most
`
`'
`
`appropriate sanction.
`
`The Bosch parties have represented that they hate now produced “all ofthe required
`documents”~ and, thus, have remedied any problems which may have arisen earlier in the case.
`' See Bull v. UnitedParcel Sam, Inc, 665 F.3d 68, 80 (3d Cir. 2012) (stating that, generally;
`“dismissal with prejudice is only appropriate in limited circutnstances and doubts Should be
`resolved infavor ofreaching a decisionon the merits”) (internal quotation merits omitted)
`
`(emphasis added). Aithough the Court has some doubts about the completeness ofBLLC’S'
`
`productiona as discussed above, the Court finds that this factor still weighs against dismissal.
`
`Lesser, alternative sanctions are appropriate and will adequately ameliorate the prejudice '
`
`10
`
`
`
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`Costco has suffered. They begin Withrequiring BLLC to pay Cosmo’s reasonable attorney’s fees
`that were caused by BLLC’s discovery misconduct. See Fed. R. CivrProc. .37(b)(2). BLLC’s
`
`discovery misconduct was not substantially justified and an award of fees would not be unjust.
`Theparties will be directed to submit a briefing schedule to provide the Court with their detailed
`positions on how the Court should determine the appropriate amount of attorney’s fees that will
`be paid.
`’
`I
`Additionally; Costco will be permitted the Copportimity to seek further discovery, should it
`believe any is necessary, in order to ensure that Costco will have received in production all
`materials and other discovery which it would have obtained had BLLC lived upto its discovery
`obligations throughout this case. BLLC does not oppose suchadditional discovery.
`(See~Tr. at
`
`\
`
`'
`
`4748)
`
`Finally, in connection with submission ofthe proposed final pretrial order and the final
`
`pretrial conference, the Court will consider, ifrequested by Costco, granting relief in liinine to
`exclude particular late~produced evidence, should Costco be able to persuade the Court that, in
`light ofthe totality of applicable considerations, such evidence should be excluded.
`The Courthas considered still other alternative‘sanctions, including requiring BLLC to
`
`pay all of Costco’s reasonable attorney’s fees since the inception of this case, granting partial
`
`summaryjudgment, and/or directing thejury to draw an adverse inference against BLLC on one
`
`or more issues relating to topics on which BLLC’S discovery has been deficient. The availability
`
`of each. of these sanctions, fiarther confirms that dismissal is not warranted. However, the Court
`
`has also concluded that, on balance, none of these particular alternatives are the most appropriate
`
`sanction(s) under the totality of circumstances.
`
`ll
`
`
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`6,
`
`Meritoriousness of BLLC’S Clainis
`
`Costco argues that “BLLC’s and BGmbH’s discovery failures have resulted in a record
`that prevents complete assessment orthe merits oftlieir asserted claims.” (D1. 373- at l5) Ifthe
`Bosch parties have truly produced all documents responsive to Costco’s discovery requests, as
`they saythey have, Costco now has the record that itIsh‘ould have had during fact discovery, and
`can now fully develop its defenses in the proper, full contest ofall appropriate discovery If
`BLLC has not yet done so, it Will be required to do so aspart ofany additional discovery Costco
`may seek. Either way, the Court concludes that this tactor‘is neutral with respect to whether
`dismissal is warranted.
`.
`
`Weighing the Factors
`7.
`An analysis tinder the Poulis factors must conclude with a weighing of the factors. See In
`
`re Asbestos Prod. Liabt Litig. (N0. VI), 713 F.3d 236, 248 (3d Cir. 2013). The current record
`, does not support dismissal ofthe complaint, because alternative sanctions ofattorney’s fees and
`additional discovery, (as Well as the possibility of evidentiary sanctions, are moreappropriate and
`
`i will adequately ameliorate the prejudice Costco has suffered. Costco contends that “dismissal is
`
`warranted. and appropriate to deter BLLC and others from repeating the type ofdiSCOVery
`
`misconduct that was committed in this case.” (D1. 373 at 1; see also Tr. at 20512) ‘St'et public
`
`policy favors resolution ofcases on the merits, see Hrz'tz v, Woma Corp, 732 F.2d 1178, llSl
`
`(3d Cir. 1984) (“Wile have repeatedly stated our preference that cases be disposed of on the
`
`merits whenever practicable”), and the availability of alternative yet adequate sanctions here
`
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`Case 1:12-cv-00574-LPS Document 398 Filed 01/26/17 Page 14 of 14 PageID #: 13247
`Case 1:12—cv-00574-LPS Document 398 Filed 01/26/17 Page 14 of 14 PageID #: 13247
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`require that the Court deny Cosmo’s request for dismissal.I
`
`IV.
`
`CONCLUSION
`
`An. Order, consistent with the reasons given above, will be entered.
`
`‘At the hearing on Cosmo’s Motion, BLLC cited Drone Technologies, Inc. v. Parrot S.A.,
`838 F.3d 1283, 1287 (Fed. Cir. 2016), in support of its position. The Drone case is
`distinguishable because the District Court had granted a default sanction and “did not seriously
`consider alternative sanctions.” Id. at 1304. Here the Court wi11 deny Costco’s request for
`dismissal and will grant alternative sanctions.
`
`13
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`