Ronaldo Designer Jewelry, Inc. v. Prinzo

Filing 113

ORDER re 110 MOTION for Sanctions filed by Ronaldo Designer Jewelry, Inc. The parties shall contact the Court, within 10 days from the date of entry of this Order, in order to set a date for the hearing regarding Ronaldo Designer Jewelry's Motion for Additional Sanctions. Signed by Honorable David C. Bramlette, III on 4/23/2018 (ECW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION

RONALDO DESIGNER JEWELRY, INC.
v.

PLAINTIFF

CIVIL ACTION NO. 5:14-cv-73-DCB-MTP

PHILLIP PRINZO

DEFENDANT

MEMORANDUM OPINION AND ORDER
This cause comes before the Court on the plaintiff Ronaldo
Designer

Jewelry,

Inc.

(“Ronaldo”)’s

Motion

for

Additional

Sanctions Against the defendant Phillip Prinzo (“Prinzo”) (docket
entry 110), filed January 22, 2018.

The pro se defendant has not

responded to the Motion.
The Court previously found Prinzo in contempt of Court, and
imposed sanctions against him.

Ronaldo alleged that “monetary

sanctions and all other sanctions are insufficient,” in this
case, and asked the Court to enter more stringent sanctions
against

Prinzo,

up

to

and

including

incarceration,

until

he

purges himself of contempt.
The Court required Prinzo to show cause, if any, for his
failure

to

respond,

and

to

show

why

sanctions,

incarceration, should not be imposed against him.

including
Prinzo was

further warned that failure to respond to the Court’s Order could
result in additional sanctions against him, as requested by the
plaintiff.
Prinzo was previously sanctioned in the amount of $1,447.31

for his failure to attend the settlement conference and was
ordered

to

appear

for

his

continued

deposition,

respond

to

discovery requests, and produce the records identified in Exhibit
A to the Amended Notice to Take Deposition (docket entry 46-1).
Prinzo has continuously failed to pay to Ronaldo the sum of
$1,447.31 in sanctions.

Prinzo has also failed to otherwise

comply, and has yet to produce the records identified in Exhibit
A to the Amended Notice to Take Deposition (docket entry 46-1) as
ordered in prior Orders (docket entries 74 and 93) and this
Court’s Judgment and Order (docket entry 109).

Prinzo has not

only ignored court orders since the inception of this case, but
has also ignored sanctions imposed by the Court thus far, clearly
demonstrating

that

monetary

and

other

sanctions

sufficient and do not have a deterrent effect.

are

not

Since Prinzo has

shown that such monetary and other sanctions are insufficient,
Ronaldo has asked the Court to enter additional, more stringent
sanctions, such as incarceration, until he purges himself of
contempt.
In its Judgment and Order (docket entry 109), the Court
expressly reserved the right to impose additional sanctions or a
finding of criminal contempt, if warranted, in the event Prinzo
failed

to

purge

himself

of

civil

contempt

by

producing

the

records identified in Exhibit A to the Amended Notice to Take
Deposition.

As Prinzo continues to refuse to comply with Court

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orders and failed to purge himself of contempt, the only recourse
is for the Court to impose additional sanctions as reserved in
its Judgment and Order (docket entry 109).

Given that monetary

and other sanctions have failed to have a deterrent effect upon
the defendant, Ronaldo asks the Court to exercise its authority
and

order

Prinzo

to

be

confined

until

he

purges

himself

of

contempt.
Incarceration is an appropriate civil contempt penalty.
Supreme

Court

of

the

United

States

has

held

that

The

“[c]ivil

contempt proceedings may yield a conditional jail term or fine.”
Hutto v. Finney, 437 U.S. 678, 691 (1978).
Court of Appeals has reached a similar holding.

The Fifth Circuit
For example, the

Fifth Circuit has held that “[a] fixed term of imprisonment, with
the proviso that the contemnor will be released if he complies
with the court order, is a proper penalty for civil contempt and
the imposition of such a penalty does not make the proceeding
criminal.”

In re Dinnan, 625 F.2d 1146, 1149 (5th Cir. 1980).

In fact, the Fifth Circuit has held on numerous occasions that
incarceration in an appropriate penalty for civil contempt.

See

United States v. Brewer, No. 93-1168, 1993 U.S. App. LEXIS 39606,
at *2 (5th Cir. July 23, 1993)(unpublished); Waffenschmidt v.
Mackay, 763 F.2d 711 (5th Cir. 1985).
In United States v. Brewer, the Fifth Circuit upheld the
lower court’s finding of civil contempt ordering the defendants

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to comply with the Court’s order or face incarceration and a fine
until they purged themselves of the contempt.
at *2.

See Brewer, supra,

In Brewer, the government petitioned the district court

for an order to enforce IRS summonses for William and Janyne
Brewer to testify and produce various records relating to their
income, which the district court ordered them to do.

Id. at *1.

Subsequently, the government moved for civil contempt as a result
of the Brewers’ refusal to answer.

Id.

After a hearing, the

court ordered the Brewers to comply within a certain time frame
or face both a fine and incarceration until they complied.
id. at *2.

See

Although William Brewer was not a part of the appeal

to the Fifth Circuit, William’s motion to vacate the contempt
order was denied by the district court and he was fined and
incarcerated until he purged himself of civil contempt.

See id.

William’s

Circuit

civil

contempt

was

affirmed

by

the

Fifth

without opinion and the appeal related only to his wife, Janyne
Brewer, who claimed her incarceration was invalid.
*2-3.

The

Fifth

Circuit

ultimately

incarceration for Janyne Brewer, as well.

upheld

the

See id. at
order

of

Id. at *7.

Additionally, in Waffenschmidt v. Mackay, Waffenschmidt sued
Mackay for securities fraud relating to money paid to him for
stock in a Mississippi corporation.
at 714.

See Waffenschmidt, supra.,

The district court ordered Mackay to pay $430,000 of the

proceeds from the stock sale to the court, but Mackay was unable

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to do so because he had already transferred the funds.

See id.

The Court held a hearing requiring Mackay to show cause why he
should not be held in contempt.

See id.

The Court found Mackay

guilty of civil contempt in August and ordered him jailed until
he purged himself of contempt by complying with the Court’s
Order.
Court

See id.

Mackay remained in jail until November when the

released

punitive.

him

because

further

incarceration

would

be

See id.

It is clear from the case law cited above that incarceration
can be imposed as a sanction and is a proper civil penalty.
Furthermore, it is clear that such a sanction does not deem the
proceeding criminal.

Rather, a fixed term of incarceration can

be ordered as a civil contempt sanction where the contemnor is
released upon compliance with the court’s order.

This type of

civil sanction is clearly within this Court’s authority.

The

Court may exercise its authority and order Prinzo to be confined
until

he

purges

himself

requested documents.

of

civil

contempt

by

producing

the

This is necessary given that Prinzo has

failed to comply with monetary and other civil sanctions.
Those monetary and other civil sanctions have clearly failed
to produce a deterrent effect.

Prinzo continues to refuse to pay

Ronaldo the sum of $1,447.31, as mandated in the Court’s Order
entered August 26, 2016 (docket entry 74).
to

appear

for

his

deposition

as

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ordered

Prinzo also refused
and

has

refused

to

produce

the

records

at

several orders to do so.

issue

on

numerous

occasions

despite

As a result, the plaintiff submits that

the only remedy remaining is the civil sanction of incarceration.
Ronaldo requests sanctions of the type outlined above because it
has already been shown that a monetary sanction awarding Ronaldo
its expenses, attorney fees, and costs incurred as result of
Prinzo’s noncompliance is insufficient.
that

sanctions

of

the

type

it

Thus, Ronaldo submits

proposes

have

become

both

appropriate and necessary in this matter.
Ronaldo requests that this Court enter additional sanctions
against Prinzo for his failure to purge himself of civil contempt
by not producing the records identified in Exhibit A to the
Amended Notice to Take Deposition (docket entry 46-1).

The Court

reserved the right to impose additional sanctions in its Judgment
and Order of September 11, 2017 (docket entry 109).

Ronaldo asks

the Court to impose additional sanctions at this time.

Ronaldo

also asks the Court to impose the additional civil contempt
sanction of incarceration because Prinzo has demonstrated that
monetary and other sanctions will be ignored.

The plaintiff

therefore requests the Court to confine the defendant until the
requested documents are produced, and for such other relief as
the Court deems just and proper.
Accordingly,
IT IS HEREBY ORDERED that the parties, plaintiff Ronaldo

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Designer

Jewelry,

Inc.,

and

defendant,

Phillip

Prinzo,

shall

appear before the Court for a hearing at a date and time to be
set by the Court.

The parties shall contact the Court, within 10

days from the date of entry of this Order, in order to set a date
for the hearing.

Defendant Prinzo is advised that he must appear

before the Court and show cause why additional sanctions against
him should not be ordered, and he must show cause why he should
not be incarcerated until he complies with the Court’s Order.

If

he fails to contact the Court or fails to appear at the hearing,
the

Court

may

issue

an

Order

imposing

additional

sanctions,

including incarceration, against him.
SO ORDERED, this the 23rd day of April, 2018.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

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