Parnofiello v. Berkley

UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
In re: ) Chapter 7
)
THOMAS R. BERKLEY, )
)
Case No. 24-12845
Debtor. )
) Judge Suzana Krstevski Koch
)
LAUREN PARNOFIELLO, )
)
Plaintiff, ) Adversary Proceeding
) No. 24-01073
v. )
)
THOMAS R. BERKLEY, )
)
Defendant. )
MEMORANDUM OF OPINION AND ORDER
This cause is before the Court on Defendant Thomas R. Berkley’s (“Berkley”) unopposed
Motion in Limine and Discovery Sanctions (“Motion in Limine”), pursuant to Federal Rule of
Civil Procedure 37(d). ECF No. 65. For the reasons stated below, Berkley’s Motion in Limine
is granted.
IT IS SO ORDERED.
Dated: 11 February, 2026 01:38 PM
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BACKGROUND
On July 17, 2024, Berkley filed a voluntary petition under Chapter 7 of Title 11 of the
United States Code. ECF No. 1 in Case No. 24-12845. On Schedule E/F: Creditors Who Have
Unsecured Claims, Berkley lists Lauren Parnofiello (“Parnofiello”) for “[n]otice purposes only”
because the debt owed to Parnofiello is related to “debtor’s former business – Berkley
Marketing, Inc.” Id.
On October 18, 2024, Parnofiello, then represented by counsel, filed a Complaint alleging
Berkley Marketing Inc.’s debt owed to her should be excepted from Berkley’s Chapter 7
discharge pursuant to 11 U.S.C. §§ 523(a)(2)(A) and (a)(4). ECF No. 1 at ¶ 5.
On December 18, 2024, Berkley filed a Rule 12(b)(6) Motion to Dismiss or for More
Definite Statement (the “Motion to Dismiss”). ECF No. 5. Parnofiello filed a Response (ECF
No. 7), to which Berkley filed a Reply (ECF No. 8). On February 11, 2025, the Court held a
hearing on the Motion to Dismiss and responsive pleadings. The Court denied Berkley’s Motion
to Dismiss on February 14, 2025. ECF No. 12. In so doing, the Court explained that Parnofiello
did not adequately plead false pretenses or fraud under Section 523(a)(2)(A), but granted her
leave to amend her Complaint as to both her Section 523(a)(2)(A) and (a)(4) claims.
On March 14, 2025, Parnofiello filed an Amended Complaint. ECF No. 14. Berkley
filed his Answer on April 16, 2025. ECF No. 18.1 On June 4, 2025, Parnofiello’s Counsel filed
a Motion to Withdraw as Attorney. ECF No. 29.2 On July 16, 2025, the Court granted
1 On May 30, 2025, Parnofiello filed a Motion for Leave to File an amended complaint (ECF No. 25) – that motion
rendered two deficiencies from the Clerk’s office. On June 9, 2025, Parnofiello filed an Amended Motion for Leave
to file an amended complaint. ECF No. 33. The Amended Motion for Leave was denied as not properly before the
Court. Parnofiello then filed a Motion to Withdraw her Amended Motion for Leave to file an amended complaint.
ECF No. 45.
2 On June 9, 2025, Parnofiello’s Counsel filed an Amended Motion to Withdraw as Counsel. ECF No. 34. The
Amended Motion to Withdraw was denied as not properly before the Court. Parnofiello’s Counsel amended his
Motion to Withdraw two more times (ECF Nos. 39, 41).
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Parnofiello’s Motion to Withdraw. ECF No. 48. As of that date, Parnofiello has proceeded pro
se in this matter.
On May 7, 2025, the Court issued an Initial Pretrial Order (the “Pretrial Order”) (ECF
No. 20) which outlined, among other things, procedures and processes related to initial
disclosures, discovery, stipulations, and dispositive motions. The Pretrial Order also cautioned
that “failure to comply with this Order may result in dismissal of the action, default judgment,
assessment of costs and attorney’s fees, and/or other sanctions the Court may deem appropriate
under the circumstances pursuant to Federal Rule of Civil Procedure 37.” Id. at ¶ 11.
On July 18, 2025, the Court issued a Trial Order (ECF No. 50), which establishes the trial
date as February 26, 2026, and sets additional dates and deadlines for the parties to exchange,
produce, or file: discovery, witness lists, exhibits, stipulations, and dispositive motions and other
filings. The Trial Order states non-expert discovery, which includes depositions, “shall be
completed no later than Friday October 17, 2025 unless the Court extends the deadline for good
cause shown.” Id. at ¶ 3.
The Trial Order advises the parties that in the event of discovery disputes, the Court will
consider “Federal Rule of Civil Procedure 37” made applicable to proceedings in this Court by
Federal Rule of Bankruptcy Procedure 7037. Id. at ¶ 6. The Trial Order further warns that “[i]f
a party fails to comply with the requirements of this Order, such failure may result in dismissal,
default, sanctions, or other consequences the Court deems appropriate.” Id. at ¶ 15.
On September 24, 2025, counsel for Berkley, David Randolph Esq. (“Attorney
Randolph” or “Randolph”), contacted Parnofiello via email to schedule her deposition. That
correspondence, which was attached as Exhibit A to Berkley’s Motion in Limine, went as
follows:
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September 24, 2025
3:29 PM: Randolph: I am reaching out to request dates and times to conduct
your deposition. The dates available are as follows:
October 7, 2025 at 9:00am
October 9, 2025 at 9:00am
October 10, 2025 at 9:00am
October 13, 2025 at 9:00am
Please let me know which date works best for you. Please
let me know if you have any questions.
3:32 PM: Parnofiello: Im [sic] not available that week at all
3:36 PM: Randolph: The only other available dates are October 2 at 10:00am or
October 3 at 9:00 am.
3:39 PM: Parnofiello: Im [sic] not available. When is Ryan Shapiro available to
be deposed?
3:50 PM: Randolph: Please provide me with dates you are available before
October 17, 2025. If we are unable to jointly pick a date,
I will have no other options [sic] but to file a notice of
deposition with a date that I choose.
I do not represent Mr. Shapiro, nor is he a party to this
case, so I am not the appropriate person to schedule his
deposition. . . .
September 25, 2025
7:01 AM: Parnofiello: Identify which employee(s) handled my “contract”
/receipt of funds and advise what dates they are
available for depositions.
10:50 AM: Randolph: Please find attached the notice of deposition for October
10, 2025, at 9:00 am that is being filed with the Court
today, September 25, 2025. The deposition will be
conducted via zoom and will begin promptly at 9:00am.
Please see Zoom meeting invitation below. . . .
11:40 AM: Parnofiello: As previously discussed I am not available until after
10/27.
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11:54 AM: Randolph: Unfortunately, I asked you multiple times for dates to
conduct your deposition. You continuously gave me
non-responsive answers. Our discovery deadline is
October 17, 2025 – so your availability starting October
27, 2025 does not work.
I am more than willing to work to try and find a date
before October 17, 2025, that also works with your
schedule. Otherwise, the deposition will go forward on
October 10, 2025, as currently scheduled.
ECF No. 65, Ex. A.
On September 25, 2025, as referenced in the above correspondence, Berkley filed a
Notice of Deposition which notified Parnofiello that her deposition was scheduled for October
10, 2025 at 9:00 a.m. and that it would occur remotely via a Zoom Meeting Room. ECF No. 56.
Parnofiello did not file any pleading in response to the Notice of Deposition.
On December 5, 2025, Berkley filed a Motion for Summary Judgment. ECF No. 57.
Parnofiello did not file any responsive pleadings.
On February 3, 2026, Berkley filed a Motion in Limine to exclude certain evidence and
testimony, and for further sanctions against Parnofiello because she did not appear for her
scheduled deposition. ECF No. 65. Parnofiello did not file any responsive pleadings.
JURISDICTION
The Court has jurisdiction over Berkley’s underlying Chapter 7 case and this adversary
proceeding pursuant to 28 U.S.C. § 1334(b) and Local General Order 2012-07 of the United
States District Court for the Northern District of Ohio. Actions to determine dischargeability are
core proceedings that this Court may hear and determine under 28 U.S.C. § 157(b)(2)(I). Venue
in this Court is proper under 28 U.S.C. § 1409.
The following constitutes the Court’s findings of fact and conclusions of law under Rule
7052 of the Federal Rules of Bankruptcy Procedure, made applicable to this contested matter by
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Rule 9014 of the Federal Rules of Bankruptcy Procedure. See e.g., Corzin v. Fordu (In re
Fordu), 201 F.3d 693, 710 (6th Cir. 1999).
DISCUSSION
I. FEDERAL RULE OF CIVIL PROCEDURE 37
Federal Rule of Civil Procedure 37(d)(1)(A), applicable to this proceeding through
Federal Rule of Bankruptcy Procedure 7037, provides that the Court “where the action is
pending may, on motion, order sanctions if: (i) a party . . . fails, after being served with proper
notice, to appear for that person’s deposition. . . .” Fed. R. Civ. P. 37(d)(1)(A)(i). “Sanctions
may include any of the orders listed in Rule 37(b)(2)(A)(i)–(vi).” Fed R. Civ. P. 37(d)(3). Those
sanctions include “dismissing the action or proceeding in whole or in part . . . .” Fed. R. Civ. P.
37(b)(2)(A)(v). Before imposing such a sanction, the Court must consider these factors:
(1) whether the party’s failure is due to willfulness, bad faith, or fault;
(2) whether the adversary was prejudiced by the dismissed party’s conduct;
(3) whether the dismissed party was warned that failure to cooperate could lead
to dismissal; and (4) whether less drastic sanctions were imposed or considered
before dismissal was ordered. Although no one factor is dispositive, dismissal is
proper if the record demonstrates delay or contumacious conduct.
Mager v. Wis. Cent. Ltd., 924 F.3d 831, 837 (6th Cir. 2019) (citation omitted) (quoting United
States v. Reyes, 307 F.3d 451, 458 (6th Cir. 2002)).
1. Willfulness, Bad Faith, or Fault
For the first factor to weigh in favor of Berkley’s Motion in Limine, he must show that
Parnofiello “display[ed] either an intent to thwart judicial proceedings or a reckless disregard for
the effect of [her] conduct on those proceedings.” Wu v. T.W. Wang, Inc., 420 F.3d 641, 643
(6th Cir. 2005) (quoting Mulbah v. Detroit Bd. of Educ., 261 F.3d 586, 591 (6th Cir. 2001)).
Failure to cooperate with discovery or to appear for a deposition can satisfy this factor. See e.g.,
Bass v. Jostens, Inc., 71 F.3d 237, 241-42 (6th Cir. 1995) (rejecting the plaintiff’s argument that
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her failure to comply with discovery orders, including one to attend her deposition, arose from
her inability to do so due to “circumstances beyond her control” and finding that her
noncompliance was willful); Maldonado v. Thomas M. Cooley Law Sch., 65 F. App’x 955, 956-
57 (6th Cir. 2003) (affirming a finding of willfulness and bad faith where the plaintiff failed to
appear for his noticed deposition, declined to coordinate with defense counsel for a new
deposition date, and did not appear at his court-ordered deposition).
Attorney Randolph, via email correspondence, offered Parnofiello four dates from which
to choose to schedule her deposition. Parnofiello responded that she was “not available that
week at all.” ECF No. 56, Ex. A. Parnofiello did not provide any information as to dates she
might have been available, so Attorney Randolph offered her two additional dates. Parnofiello
replied that she was “not available.” Id., Ex. A. Parnofiello then shifted the conversation,
inquiring about the deposition of a non-party individual. In response, Attorney Randolph asked
Parnofiello to “provide [him] with dates” in which she was available for her deposition that
complied with the October 17, 2025 discovery deadline. Id., Ex. A. Attorney Randolph also
notified Parnofiello that if they could not agree upon a date that he would “file a notice of
deposition with a date [of his choosing].” Id., Ex. A. Parnofiello responded but did not address
Attorney Randolph’s request to provide dates in which she was available for deposition.
On September 25, 2025, Attorney Randolph chose October 10, 2025 as the deposition
date. He notified Parnofiello via email, attaching the Notice of Deposition to his email message.
Parnofiello responded: “As previously discussed I am not available until after 10/27.” Id., Ex. A.
Attorney Randolph maintained that the deposition would continue on as scheduled and advised
Parnofiello that he was “more than willing to work to try and find a date before October 17,
2025, that also works with [her] schedule.” Id., at Ex. A. No further correspondence was
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provided to the Court. The deposition was held on October 10, 2025, as scheduled. Attorney
Randolph appeared at the Zoom meeting; Parnofiello did not.3
Parnofiello’s failure to cooperate with Attorney Randolph (despite his repeated requests)
to establish a deposition date, failure to appear at her deposition, failure to respond to Berkley’s
Motion in Limine, and failure to provide any other evidence precludes her from meeting her
“burden of showing that [her] failure to [appear for her deposition] was due to inability, not
willfulness or bad faith,” Reyes, 307 F.3d at 458. This factor weighs against Parnofiello.
2. Prejudice
“A defendant is prejudiced by a plaintiff’s dilatory conduct if the defendant is ‘required
to waste time, money, and effort in pursuit of cooperation which [the plaintiff] was legally
obligated to provide.’” Carpenter v. City of Flint, 723 F.3d 700, 707 (6th Cir. 2013) (alteration
in original) (quoting Harmon v. CSX Transp., Inc., 110 F.3d 364, 368 (6th Cir. 1997)).
As the plaintiff in this matter, Parnofiello’s testimony is fundamental to the parties’
arguments for their respective positions. Parnofiello’s failure to cooperate with Attorney
Randolph and failure to appear at the scheduled deposition prejudiced Berkley because it
prevented him from gathering testimonial evidence through Parnofiello’s deposition and
condensed his schedule in preparation for trial.
Parnofiello’s failure to attend her deposition obligated Berkley to spend unnecessary time
and effort filing an additional motion (the Motion in Limine) with the Court. Berkley’s Motion
in Limine states the costs and fees “associated with the attempted deposition and drafting of this
motion [are] in the amount of $5,123.05.” The Court finds that Berkley was prejudiced by
3 Berkley attached the transcript from the October 10, 2025 deposition to his Motion in Limine. There, Attorney
Randolph stated that Parnofiello further responded to the email notifying her of the deposition date, that “she had a
trial in local court beginning in October. Those are also at nine a.m. ‘You never called me until an email
yesterday.’” ECF No. 56, Ex. A, 7:16-18.
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Parnofiello’s failure to cooperate and failure to appear at her deposition. This factor weighs
against Parnofiello.
3. Prior Warning
The Court provided Parnofiello with express warning that dismissal may result if she
failed to comply with court orders. As early as May 7, 2025, the Pretrial Order cautioned the
parties that Civil Rule 37 (Bankruptcy Rule 7073) applied to discovery disputes in this adversary
proceeding and “failure to comply” with the Pretrial Order “may result in dismissal of the
action. . . .” ECF No. 20, ¶ 11. Those warnings were repeated in the Court’s Trial Order, signed
on July 18, 2025. ECF No. 50. The Trial Order established the discovery cutoff date as October
17, 2025. Id., ¶ 3. The Trial Order reminds the parties that “Federal Rule of Civil Procedure 37”
applies to discovery disputes. Id., ¶ 6. Moreover, the Trial Order, in no uncertain terms warns
that “[i]f a party fails to comply with the requirements of this Order, such failure may result in
dismissal . . . .” Id., ¶ 15. Parnofiello was expressly warned that failure to comply with the
terms of the Pretrial Order and Trial Order could lead to dismissal.
This factor weighs against Parnofiello. See, e.g., Hills v. Roble, No. 23-1395, 2024 U.S.
App. LEXIS 6296, at *6 (6th Cir. Mar. 15, 2024) (finding that “the district court correctly held
that [the plaintiff] had been appropriately warned” when the “magistrate judge ordered him to
appear [for his deposition] and warned him in bold print that ‘if he fails to appear or otherwise
violates the discovery rules, his case may be dismissed under Rule 37 or the Court’s inherent
authority.’”) (cleaned up); see also Mager, 924 F.3d at 840 (providing that “lack of a prior
warning would not prevent dismissal of the complaint as a first sanction” because the plaintiff
“deliberately disobeyed” a district court order).
4. Lesser Sanctions
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“[A] district court is required only to ‘consider’ the imposition of lesser sanctions.”
Moore v. Erickson, No. 22-2134, 2023 U.S. App. LEXIS 26639, at *9 (6th Cir. Oct. 5, 2023)
(quoting Mager, 924 F. 3d at 837). The Sixth Circuit “has never held that a district court is
without power to dismiss a complaint, as the first and only sanction,” and is “loathe to require
the district court to incant a litany of the available lesser sanctions.” Shafer v. City of Defiance
Police Dep’t., 529 F.3d 731, 738 (6th Cir. 2008). Determining whether dismissal is the
appropriate sanction is a matter within the discretion of the Court. Wright v. Coca-Cola Bottling
Co., 41 F. App’x 795 (6th Cir. 2002).
Given the procedural posture of this case and with the trial scheduled for February 26,
2026, the Court has considered lesser sanctions and finds that dismissal, although harsh, is the
appropriate sanction. The Court finds that additional sanctions are not appropriate, so Berkley’s
request for payment of his attorney fees is denied.
CONCLUSION
For the reasons stated above, Berkley’s Motion in Limine is granted. The case is
dismissed pursuant to Civil Rule 37(d)(1)(A)(i), (d)(3) and (b)(2)(A)(v). A separate order will
enter.
IT IS SO ORDERED.
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