Ronaldo Designer Jewelry, Inc. v. Prinzo

Filing 93

ORDER granting in part and denying in part 83 Motion for Sanctions; granting in part and denying in part 85 Motion for Contempt; adopting Report and Recommendations re 90 Report and Recommendations. Signed by Honorable David C. Bramlette, III on 12/20/2016 (ECW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
RONALDO DESIGNER JEWELRY, INC.
VS.

PLAINTIFF

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

PHILLIP PRINZO

DEFENDANT

ORDER ADOPTING REPORT AND RECOMMENDATION
This cause is before the Court on the plaintiff’s Motion for
Discovery Sanctions for Failure to Comply with Court Order (docket
entry 83), on the plaintiff’s Motion to Hold Defendant in Contempt
for Failure to Comply with Order Entered August 26, 2016 (docket
entry

85),

and

on

the

Report

and

Recommendation

(“R&R”)

Magistrate Judge Michael T. Parker (docket entry 90).

of

Having

considered the plaintiff’s submissions and the R&R (to which no
responses or objections have been filed by the defendant), and
having considered the applicable law, the Court finds as follows:
This

action

involves

claims

of

copyright

and

trademark

infringement. Plaintiff Ronaldo Designer Jewelry, Inc. (“Ronaldo”)
claims that defendant Phillip Prinzo (“Prinzo”) is making and
selling jewelry that infringes upon its designs or trademarks.
Prinzo denies these allegations.

On September 19, 2016, the Court

entered a Preliminary Injunction enjoining Prinzo from making and
selling

jewelry

trademarks.

that

infringes

upon

Ronaldo’s

designs

and/or

Docket Entry 79.

Magistrate Judge Parker’s R&R recites that Prinzo, who is

proceeding pro se, has repeatedly ignored court rules and orders
throughout

this

case,

discovery process.

and

has

intentionally

obstructed

the

Magistrate Judge Parker warned Prinzo that his

failure to respond to Ronaldo’s discovery requests could result in
the Court imposing sanctions.
(Docket Entry 71).
produce

his

See Order Granting Motion to Compel

Despite the warning, Prinzo has failed to

pre-discovery

disclosures,

respond

to

the

interrogatories and requests for production, or respond to the
requests for admissions.
On September 2, 2016, Ronaldo filed its renewed Motion to Deem
Admitted (Docket Entry 76).

Prinzo did not respond to the Motion.

Magistrate Judge Parker granted the Motion on October 3, 2016, and
held that each request in Ronaldo’s first set of requests for
admissions is deemed admitted by default.
On October 21, 2016, Ronaldo filed its Motion for Discovery
Sanctions for Failure to Comply with Court Order, pointing out that
Prinzo failed to produce his pre-discovery disclosures or respond
to Ronaldo’s discovery requests as ordered by the Court.

Ronaldo

argues that the Court should impose discovery sanctions against
Prinzo pursuant to Fed. R. Civ. P. 37(b).
Magistrate Judge Parker recites that Prinzo has frustrated the
progression of this case in other ways as well.

During the second

case management conference held on March 30, 2016, the Court set a
settlement

conference

for

June

2

9,

2016.

On

June

7,

2016,

Magistrate Judge Parker’s deputy clerk called Prinzo to remind him
of the conference and to request that he submit a settlement
memorandum.

Although the settlement conference was set at a time

and place selected to minimize any inconvenience to Prinzo, and
although

Prinzo

had

been

reminded

of

the

conference,

he

nevertheless failed to appear. Thereafter, Magistrate Judge Parker
entered an Order directing Prinzo to appear in Court on August 2,
2016, and show cause why he should not be sanctioned for failing
to appear at the settlement conference.
A few weeks after the cancelled settlement conference, Ronaldo
noticed Prinzo’s deposition.
Prinzo

provide

certain

The deposition notice requested that

records,

deposition without the records.

but

Prinzo

appeared

at

the

Also, some two hours into the

deposition and before its conclusion, Prinzo abruptly left the
deposition. Ronaldo’s attorney promptly reset the remainder of the
deposition for the next day, but Prinzo did not appear.
day,

Prinzo’s

deposition.

girlfriend,

Janice

Bintrim,

appeared

That same
for

her

She, too, was to bring certain records with her.

However, she did not do so, claiming that Prinzo instructed her not
to bring them.

Thereafter, Ronaldo filed a Motion for Sanctions

as a result of Prinzo leaving the deposition, failing to appear the
next day to continue the deposition, and instructing Bintrim to
ignore the document request served with the deposition subpoena.
Magistrate Judge Parker set a hearing on the motion for August 2,

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2016, the same day as the show cause hearing.
Following the August 2, 2016, hearing, Magistrate Judge Parker
entered an Order stating:
The Court finds that Prinzo left his deposition without
good cause or substantial justification, did not attend
his deposition when it was re-noticed, wrongfully
instructed Bintrim not to comply with a deposition
subpoena, and has generally obstructed the discovery
process.
Likewise, the Court finds no good cause or
substantial justification for Prinzo’s failure to appear
for the settlement conference. The Court is not aware of
any circumstances that would make an award of fees and
expenses unjust. To the contrary, to allow Prinzo to
multiply the costs and expenses for Ronaldo with his
pattern of obstructive behavior would be unjust.
Docket Entry 74, pp. 5-6.
Ronaldo

sought

$27,809.26

in

sanctions

against

Prinzo.

Magistrate Judge Parker, however, sanctioned Prinzo in the amount
of $1,447.31 for his failure to attend the settlement conference
and declined to impose monetary sanctions for his actions regarding
the depositions.
offices

of

Instead, he ordered Prinzo to appear at the

Ronaldo’s

counsel

for

the

continuation

of

his

deposition, and ordered him to produce the records identified in
Exhibit A to the Amended Notice to Take Deposition.

Magistrate

Judge Parker’s Order also stated:
The Court will not impose additional sanctions at
this time. However, if Prinzo continues to ignore the
orders of this Court or further obstruct the discovery
process, the Court will revisit the issue of additional
sanctions.
These additional sanctions could include
entry of default judgment. See Fed.R.Civ.P. 37(b).
Id., pp. 7-8.

4

Thereafter, Ronaldo noticed Prinzo’s deposition for September
21, 2016.

Prinzo failed to appear for the continuation of his

deposition, failed to produce the records identified in Exhibit A
to the Amended Notice to Take Deposition, and failed to pay to
Ronaldo the sum of $1,447.31 in sanctions.

On October 21, 2016,

Ronaldo filed its Motion to Hold Defendant in Contempt for Failure
to Comply with Magistrate Judge Parker’s Order at Docket Entry 74.
Ronaldo argues that the Court should hold Prinzo in contempt
pursuant to Fed. R. Civ. P. 37(b).

Thus, pending before the Court

are motions requesting the Court to sanction Prinzo and hold him in
contempt for his failure to comply with Magistrate Judge Parker’s
Orders at Docket Entries 71 and 74.

See Plaintiff’s Motions at

Docket Entries 83 and 85.
Magistrate Judge Parker received a letter from Prinzo on
October 31, 2016 (Docket Entry 88), which in his R&R he treats as
a response to Ronaldo’s motions (Docket Entries 83 and 85).

The

letter discusses, inter alia, Prinzo’s medical bills and his
positions on the merits of this case.
several documents.

Attached to the letter are

Prinzo explains that these documents include

(1) a Mutual Release Agreement signed by Plaintiff and Gold Craft
Fashions, Inc. in 1994; (2) webpages showing wire jewelry made and
marketed by companies and individuals unaffiliated with Ronaldo;
(3) photographs of books and websites which provide instruction on
how to make wire jewelry; and (4) a letter from Ronaldo to an

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individual with whom Prinzo has conducted business.
88, pp. 4-33.

Docket Entry

In the letter, Prinzo states that “I have given here

and my previous letters all the discovery there is.”

Id., p. 3.

Prinzo, however, contradicts this statement elsewhere in the letter
when he states, “I can’t give my records with customers [sic] names
to Ronaldo.

He has ruined my life with this EXTORTION.

I couldn’t

bear to help him hurt any other innocent small business jewelry
stores.”

Id., p. 2.

Additionally, the deposition of Prinzo’s

girlfriend, Bintrim, contradicts Prinzo’s statement that he has
provided all relevant discovery.
three

or

invoices.

four

years

of

Bintrim testified that she keeps

Prinzo’s

business

records,

including

See Bintrim Deposition (Docket Entry 89, Exhibit 2).

Prinzo has clearly failed to comply with multiple orders of
the Court.

The Court has broad discretion to exercise its various

sanctioning powers.

Topalian v. Ehrman, 3 F.3d 931, 934 (5th Cir.

1993); Shipes v. Trinity Indus., 987 F.2d 311, 323 (5th Cir. 1993)
(“The imposition of sanctions is a matter of discretion for the
district court.”).

Federal Rule of Civil Procedure 37(b) allows

for sanctions when a party fails to obey a discovery order.
Pursuant to Rule 37(b), the sanctions may include directing that
facts

be

taken

as

established,

prohibiting

the

party

from

supporting or opposing claims or defenses, striking pleadings,
staying the proceedings until the order is obeyed, dismissing the
action, rendering a default judgment, or finding the party in

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contempt of court.
In both of its Motions (Docket Entries 83 and 85), Ronaldo
requests, inter alia, that the Court enter a default judgment
against Prinzo.

Generally speaking, courts should punish parties

no more harshly than is necessary to vindicate the injury inflicted
by

the

particular

misbehavior

at

issue.

Carroll

v.

Admiralty Law Firm, P.C., 110 F.3d 290, 294 (5th Cir. 1997).

Jaques
“Rule

37 sanctions must be applied diligently both to penalize those
whose conduct may be deemed to warrant such a sanction, and to
deter those who might be tempted to such conduct in the absence of
such a deterrent.”
763-64 (1980).

Roadway Express, Inc. v. Piper, 447 U.S. 752,

The Fifth Circuit Court of Appeals has held that

Rule 37 “provides that a default judgment may be entered if a party
fails to comply with a court order to provide or to permit
discovery.”

United States v. Dajj Ranch, 988 F.2d 1211, 1993 WL

82260, at *2 (5th Cir. Mar. 17, 1993)(unpublished).
A court may enter a default judgment as a discovery sanction
if the following criteria are met: (1) the party’s discovery
violation

was

willful

and

(2)

a

lesser

sanction

substantially achieve the desired deterrent effect.

consider

whether

the

discovery

opposing party’s trial preparation.
As

a

result

of

Prinzo’s

violation

Courts may

prejudiced

the

Id.

failure

7

not

United States

v. $49,000 Currency, 330 F.3d 371, 376 (5th Cir. 2003).
also

would

to

participate

in

the

discovery

process,

Magistrate

Judge

Parker

ordered

Prinzo

to

produce his pre-discovery disclosures and respond to Ronaldo’s
first

sets

of

interrogatories,

requests

documents, and requests for admissions.

for

production

Docket Entry 71.

of

Prinzo

willfully chose not to comply with the Magistrate Judge’s Order.
In addition, as a result of Prinzo’s actions at his deposition and
his failure to appear at the settlement conference, the Magistrate
Judge ordered him to appear for the continuation of his deposition,
produce the records identified in the notice to take deposition,
and pay Ronaldo the sum of $1,447.31 in sanctions.
74.

Docket Entry

Prinzo willfully chose not to comply with the Court’s Order.

Id.
After Ronaldo filed its Motions (Docket Entries 83 and 85)
seeking to have the Court hold Prinzo in contempt and enter a
default judgment against him, Prinzo still chose not to comply with
the Court’s Orders (Docket Entries 71 and 74).

In fact, in his

letter to Magistrate Judge Parker, Prinzo specifically stated that
he would not produce certain documents because he “couldn’t bear to
help [Ronaldo] hurt any other innocent small business jewelry
stores.”
obstructive

Docket Entry 88, p. 2.
behavior,

and

disregard

Prinzo’s dilatory actions,
of

his

responsibilities

constitute bad faith.
In addition, Magistrate Judge Parker finds that less drastic
sanctions would clearly have no deterrent effect on Prinzo. In his

8

Order of July 26, 2016 (Docket Entry 71), Magistrate Judge Parker
compelled Prinzo to produce certain information but declined to
impose sanctions.

Instead, he warned Prinzo that his failure to

comply with the Order could result in sanctions.

Despite this

warning, Prinzo failed to comply with the Order.

Consequently,

Magistrate Judge Parker entered his Order of August 26, 2016
(Docket

Entry

74),

ordering

Prinzo

to

take

certain

actions,

imposing monetary sanctions against him, and warning him that if he
continued to defy the orders, the Court may impose additional
sanctions, including entry of default judgment.

Despite this

warning, Prinzo failed to pay the monetary sanction or otherwise
comply with the Order.
Prinzo has therefore demonstrated that less drastic sanctions
would not achieve a deterrent effect.

Magistrate Judge Parker

finds that Ronaldo’s ability to prepare for the trial of this
matter has been substantially prejudiced.

Specifically, Prinzo’s

actions have left Ronaldo with no avenue to develop its claim for
damages.

Prinzo will not produce his business records and refuses

to reveal the names of his customers from whom Ronaldo could seek
information regarding Prinzo’s sales.

Additionally, this action

was filed more than two years ago, and Prinzo has yet to provide
prediscovery disclosure, furnish complete discovery responses, or
complete his deposition. Prinzo has not given the Court any reason
to believe he will fully comply with the Court’s orders in the

9

future.

On November 14, 2016, Magistrate Judge Parker suspended

the discovery and motions deadlines, pending the Court’s rulings on
the instant Motions (Docket Entries 83 and 85).
In the Conclusion of his R&R, Magistrate Judge Parker finds
that although judgment by default is rarely an appropriate penalty,
Prinzo’s deliberate, repeated refusals to comply with Court Orders
justify such a sanction in this case. However, he also recommends
affording Prinzo one final opportunity to fully comply with the
Court Orders prior to entering a default judgment.

Specifically,

he recommends the following:
(1).

That Plaintiff’s Motion for Discovery Sanctions for

Failure to Comply with Court Order [83] be GRANTED in part and
DENIED in part as set forth below;
(2).

That Plaintiff’s Motion to Hold Defendant in Contempt

for Failure to Comply with Order Entered August 26, 2016 [85] be
GRANTED in part and DENIED in part as set forth below;
(3).

That Prinzo be ordered to fully comply with the Court’s

Order [71] within ten (10) days (this includes requiring Prinzo to
produce his pre-discovery disclosures and respond to Ronaldo’s
first

set

of

interrogatories

and

requests

for

production

of

documents without objection);
(4).

That Prinzo be ordered to fully comply with the Court’s

Order [74] within ten (10) days (this includes requiring Prinzo to
pay to Ronaldo, through counsel, the sum of $1,447.31 in sanctions,

10

produce the records identified in Exhibit A to the Amended Notice
to Take Deposition [46-1], and appear in Jackson, Mississippi, at
the offices of Krebs Farley, PLLC, for the continuation of his
deposition);
(5).

If Prinzo fails to fully and timely comply with the

Court’s Orders [71] [74], that default judgment be entered against
Prinzo and a hearing scheduled to determine damages;
(6).

If default judgment is entered and a damages hearing is

scheduled, that Prinzo be ordered to appear at the hearing and
produce the records identified in Exhibit A to the Amended Notice
to Take Deposition [46-1]; and
(7).

If Prinzo fails to appear at the damages hearing or

produce the records identified in Exhibit A to the Amended Notice
to Take Deposition [46-1], that Prinzo be held in contempt of court
until such time as he purges himself of contempt.
Upon careful consideration of Magistrate Judge Parker’s Report
and Recommendation,
IT IS HEREBY ORDERED that the Court ADOPTS Magistrate Judge
Parker’s

Report

and

Recommendation

(docket

entry

90)

as

the

findings and conclusions of this Court;
FURTHER ORDERED that the plaintiff’s Motion for Discovery
Sanctions for Failure to Comply with Court Order (docket entry 83)
is GRANTED in part and DENIED in part as set forth below;
FURTHER ORDERED that the plaintiff’s Motion to Hold Defendant
11

in Contempt for Failure to Comply with Order Entered August 26,
2016 (docket entry 85) is GRANTED in part and DENIED in part as set
forth below;
FURTHER ORDERED that Prinzo fully comply with the Order of
July 26, 2016 (docket entry 71) within ten (10) days from the date
of entry of this ORDER (this includes producing his pre-discovery
disclosures

and

responding

to

Ronaldo’s

first

set

of

interrogatories and requests for production of documents without
objection;
FURTHER ORDERED that Prinzo fully comply with the Order of
August 26, 2016 (docket entry 74) within ten (10) days from the
date of entry of this ORDER (this includes paying to Ronaldo,
through counsel, the sum of $1,447.31 in sanctions, and producing
the records identified in Exhibit A to the Amended Notice to Take
Deposition (docket entry 46-1);
FURTHER ORDERED that Prinzo appear in Jackson, Mississippi, at
the offices of Krebs Farley, PLLC, for the continuation of his
deposition, at such date and time reasonably agreed upon.
The Court further warns Prinzo that should he fail to fully
and timely comply with the Court’s Orders of July 26, 2016 (docket
entry 71) and August 26, 2016 (docket entry 74) within ten (10)
days from the date of entry of this ORDER, a default judgment shall
be

entered

against

determine damages.

him

and

a

hearing

shall

be

scheduled

to

If a default judgment is entered and a damages

12

hearing is scheduled, Prinzo shall be ordered to appear at the
hearing and produce the records identified in Exhibit A to the
Amended Notice to Take Deposition (docket entry 46-1).

If Prinzo

fails to appear at the damages hearing or fails to produce the
records identified in said Exhibit A, he shall be held in contempt
of court until such time as he purges himself of contempt.
SO ORDERED, this the 20th day of December, 2016.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

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