Equal Employment Opportunity Commission v. Stone Pony Pizza, Inc.
ORDER Imposing Sanctions re 287 Order to Show Cause. Signed by District Judge Sharion Aycock on 3/31/2017. (dbm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
CIVIL ACTION NO. 4:13-CV-92-SA-JMV
STONE PONY PIZZA, INC.
ORDER IMPOSING SANCTIONS AND CANCELLING TRIAL
This case was originally filed in this Court nearly four years ago, on May 17, 2014.
Shortly after the Defendant, Stone Pony Pizza, Inc.’s, Motion for Summary Judgment  was
denied the Defendant stopped participating in the defense of its case. This case is currently
scheduled for trial on April 17, 2017. On March 16, 2017, this Court entered a Notice and Order
to Show Cause directing the Defendant to contact the Magistrate Judge assigned to this case by
5:00 pm on March 30, 2017 and inform the Court of its continued participation in this case or
face sanctions such as entry of a default judgment. The appointed time has passed, and the Court
has not received any communication from the Defendant.
As the Court previously noted, the Defendant, a corporation, allowed its attorneys to be
dismissed, failed to respond to pleadings in this case, and failed to respond, in any fashion to
direct orders of this Court. Specifically, the Defendant failed to respond to a Report and
Recommendation  issued by the magistrate judge in this case, failed to respond to an Order
 from this Court directing the Defendant to inform the Court of its intention to proceed in
this matter, to inform the Court of its representation, and to appear at the final pre-trial
conference. The Defendant also failed to respond to any of the several pending motions in
limine, and failed to return any of the acknowledgments that this Court mailed it. Most recently
and perhaps most egregiously, the Defendant failed to appear at the final pre-trial conference.
Finally, the Defendant failed to respond in any way to the Court’s latest Notice and Order to
Show Cause. In short, the Court has not had any substantive contact or response from the
Defendant since summary judgment was denied, almost exactly one year ago.
As this Court has also noted on several previous occasions, substantial time and expense
has been expended in the process of this litigation. A review of the docket in this case reveals
that the Defendant’s conduct presents a clear record of delay and contumacious conduct. The
Defendant has repeatedly refused to comply with any of the Court’s orders and has attempted to
frustrate the progress of this case by refusing to comply and participate in the proceedings. See
S.E.C. v. First Houston Capital Res. Fund, Inc., 979 F.2d 380, 382 (5th Cir. 1992). Based on the
record in this case it is clear that sanctions are warranted under Federal Rule of Civil Procedure
16(f). That rule states, in relevant part:
(1) In General. On motion or on its own, the court may issue any
just orders, including those authorized by Rule 37(b)(2)(A)(ii)(vii), if a party or its attorney:
(A) fails to appear at a scheduling or other pretrial
(B) is substantially unprepared to participate--or does not
participate in good faith--in the conference; or
(C) fails to obey a scheduling or other pretrial order.
(2) Imposing Fees and Costs. Instead of or in addition to any other
sanction, the court must order the party, its attorney, or both to pay
the reasonable expenses--including attorney’s fees--incurred
because of any noncompliance with this rule, unless the
noncompliance was substantially justified or other circumstances
make an award of expenses unjust.
FED. R. CIV. P. 16 (f).
The relevant orders authorized by Rule 37(b)(2)(A) include:
(ii) prohibiting the disobedient party from supporting or opposing
designated claims or defenses, or from introducing designated
matters in evidence; (iii) striking pleadings in whole or in part; (iv)
staying further proceedings until the order is obeyed; (v)
dismissing the action or proceeding in whole or in part; (vi)
rendering a default judgment against the disobedient party; or (vii)
treating as contempt of court the failure to obey any order except
an order to submit to a physical or mental examination.
FED. R. CIV. P. 37
The Court has considered each of these sanctions. At this time, the Court has made
several attempts to get the Defendant to comply with the Court’s orders and to participate in this
case. Indeed, the Court has previously considered sanctions, including a default judgment. See
. None of the Court’s previous orders or requests have had any effect on the Defendant. For
this reason, the Court finds that imposing a fine or levying costs against the Defendant are
unlikely to compel the Defendant to comply with Court’s orders. The Court also finds that given
the record in this case, neither a stay nor striking the pleadings is likely to have any effect.
Having considered several different potential sanctions, the Court finds that a default judgment is
warranted to serve the interests of justice in this particular case. See First Houston Capital, 979
F.2d at 382 (holding that district courts must expressly considered alternative sanctions); see also
Elizondo v. Pilgrim’s Grp., Inc., 100 F.3d 952 (5th Cir. 1996) (“Even with a clear record of delay
or contumacious conduct,” a trial judge cannot impose the sanction of a dismissal or a default
judgment “unless the court first finds that a lesser sanction would not have served the interests of
justice.”) (citing McNeal v. Papasan, 842 F.2d 787, 793 (5th Cir. 1988)).
Because the Defendant has exhibited a pattern of willful, deliberate, contumacious
conduct, refuses to participate in this case, and failed to appear at the final pretrial conference,
the Court hereby enters a default judgment against the Defendant, Stone Pony Pizza, Inc. on all
of the Plaintiffs’ claims pursuant to Federal Rule of Civil Procedure 16(f).
The trial of this case, currently set for April 17, 2017, is cancelled and a hearing on
damages will be noticed separately.
SO ORDERED on this the 31st day of March, 2017.
/s/ Sharion Aycock
UNITED STATES DISTRICT JUDGE
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