Cost Controls, Inc. v. American Preferred Prescription, Inc. , 14 F. App'x 92 ( 2001 )

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court is AFFIRMED and all pending motions are DENIED.

Appellant Cost Controls, Inc. (“CCI”) appeals from two orders of the District Court for the Southern District of New York (Hurley, J.), (1) denying CCI’s motion to dismiss the appeal from the bankruptcy court brought by appellee American Preferred Prescription, Inc. (“APP”), as a sanction for discovery abuse, and (2) on CCI’s motion for reconsideration, adhering to that denial.

CCI moved under Fed.R.Civ.P. 37 to dismiss APP’s appeal as a sanction for APP’s destruction, during an adversary proceeding in the bankruptcy court, of 260 boxes of documents subject to discovery. The district court denied the motion and instead ordered that APP pay all of CCI’s costs and attorney’s fees attributable to the destruction. CCI now challenges the district court’s refusal to dismiss.

We review for abuse of discretion a district court’s decision to award or withhold sanctions under Rule 37. See Friends of Animals Inc. v. U.S. Surgical Corp., 131 F.3d 332, 334 (2d Cir.1997). In the instant case, the district court articulated several reasons for refusing to dismiss, including that the motion had come several years after APP’s appeal to the district court had been perfected and that, insofar as CCI had been prejudiced by APP’s abuses in the outcome of the bankruptcy proceeding, the proper remedy would be remand for retrial on the issue of damages, which CCI had not sought. “Dismissal under Rule 37 is an extreme sanction, to be imposed only in extreme circumstances.” Jones v. Niagara Frontier Transp. Auth., 836 F.2d 731, 734 (2d Cir.1987). In light of the district court’s well-developed justification for its refusal to award the “extreme sanction” of dismissal, we find that the district court did not abuse its discretion.

Upon due consideration, all motions pending in this matter are hereby DENIED, and the judgment of the district court is AFFIRMED.