United States District Court, S.D. Mississippi.
RONALDO DESIGNER JEWELRY, INC. PLAINTIFF
v.
PHILLIP PRINZO DEFENDANT
MEMORANDUM OPINION AND
David
Bramlette UNITED STATES DISTRICT JUDGE
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, including
incarceration, should not be imposed against him. 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 are not sufficient and do not
have a deterrent effect. 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 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. The Supreme Court
of the United States has held that “[c]ivil contempt
proceedings may yield a conditional jail term or fine.”
Hutto v. Finney, 437 U.S. 678, 691 (1978). The Fifth
Circuit Court of Appeals has reached a similar holding. 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 to comply with the Court's order or face
incarceration and a fine until they purged themselves of the
contempt. See Brewer, supra, at *2. 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. See id.
at *2. 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 civil contempt was
affirmed by the Fifth Circuit without opinion and the appeal
related only to his wife, Janyne Brewer, who claimed her
incarceration was invalid. See id. at *2-3. The
Fifth Circuit ultimately upheld the order of incarceration
for Janyne Brewer, as well. 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. See
Waffenschmidt, supra., at 714. The district
court ordered Mackay to pay $430, 000 of the proceeds from
the stock sale to the court, but Mackay was unable 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. See id. Mackay
remained in jail until November when the Court released him
because further incarceration would be punitive. 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 of civil contempt by producing the requested
documents. 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). Prinzo also
refused to appear for his deposition as ordered and has
refused to produce the records at issue on numerous occasions
despite several orders to do so. 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. Thus, Ronaldo submits that
sanctions of the type it 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
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 ...