Case 8:14-cv-02096-VMC-EAJ Document 131 Filed 05/25/15 Page 1 of 11 PageID 3166

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ROCA LABS, INC.,

Case No: 8:14-cv-02096-VMC-EAJ

Plaintiff,
v.
CONSUMER OPINION CORP. and
OPINION CORP.,
Defendants.
/

DEFENDANTS’ MOTION FOR CASE-TERMINATING SANCTIONS
OR, IN THE ALTERNATIVE, LESSER SANCTIONS OR AN ORDER TO SHOW CAUSE
AS TO WHY SANCTIONS SHOULD NOT BE IMPOSED
For the third time, Plaintiff and its attorney have engaged in unlawful
witness intimidation. The prior times, this Court just told them not to do it again.
They did not respect that warning. This time, Roca’s attorney is attempting to
intimidate an expert witness from testifying by threatening criminal sanctions,
and that threat has placed this witness in fear, requiring a rebuke from this Court
sufficient to assuage his fears. A simple “don’t do it again” did not work last time.
(Doc. # 17.) Defendants request a harsher rebuke from this Court, lest this
continue.
Defendants Consumer Opinion Corp. and Opinion Corp. (collectively,
“Defendants”) pursuant to this Court’s inherent powers, hereby request the
sanction of termination of this case for the egregious behavior of Plaintiff and its
counsel. In the alternative, Defendants seek an order compelling Roca Labs and

1

 Case 8:14-cv-02096-VMC-EAJ Document 131 Filed 05/25/15 Page 2 of 11 PageID 3167

its attorneys to cease and desist from any further acts of witness intimidation,
and a further sanction that will ensure that any other witnesses in this case can
proceed without fear.
1.0

INTRODUCTION AND FACTUAL BACKGROUND
This action began with a request from Roca for this Court to impose an

unconstitutional prior restraint on Defendants, in the form of their Motion for Entry
of a Temporary Injunction. (Doc. # 5.) In Defendants’ Opposition to this Motion,
filed September 18, 2014 (Doc. # 13), Defendants contacted Roca’s former
customers and attached declarations from them detailing their experience with
Roca’s products. (Doc. #s 13-3, 13-5, 13-6.) Very shortly after Defendants filed
their Opposition, Plaintiff contacted these witnesses with threats of litigation for
breach of an unenforceable contract. (Doc. #s 15-1, 15-2.) This timing was
anything but coincidental, and so Defendants then brought a motion for a
temporary restraining order against Plaintiff to cease this witness intimidation.
(Doc. # 15.) While the Court denied Defendants’ motion on September 23, 2014,
it “remind[ed] the parties that it will not hesitate to impose sanctions on any
party that engages in witness tampering, in violation of 18 U.S.C. § 1512.” (Doc.
# 17, at 3) (emphasis original).
Despite this admonishment, Roca filed lawsuits against one of Defendants’
witnesses. (See Doc. # 52 (identifying suit against Defendants’ witness Jennifer
Schaive),) While Roca could claim that this suit was justified, one would have to
be extremely gullible to believe that Roca selected Ms. Schaive, out of the
hundreds of consumers who have complained about Roca Labs, simply
because they felt the suit was justified. (See Doc. # 13-2 (Better Business Bureau
complaints against Roca); see also Food and Drug Administration (“FDA”)
Special Agent report concerning Roca, attached as Exhibit 1; and see
complaints filed with the FDA concerning Roca, attached as Exhibit 2.)
2

 Case 8:14-cv-02096-VMC-EAJ Document 131 Filed 05/25/15 Page 3 of 11 PageID 3168

At the same time, in an effort to try and intimidate Defendants’ counsel
from continuing in this case, Roca Labs sued him personally for statements
made at the October 8, 2014 hearing, and in the opposition to Plaintiff’s motion
for a preliminary injunction. (See Doc. # 52, informing Court of suit filed by Roca
against Defendants’ counsel, Marc Randazza.)
Fast forward to May 2015. The parties have been in the process of
attempting to schedule depositions prior to the discovery cutoff, including the
deposition of Defendants’ expert witness Thomas Parisi, MD. Defendants’
counsel retained Dr. Parisi as an expert witness, and the two worked together to
determine a fair expert billing rate for all parties to this action. (See Declaration
of Marc J. Randazza [“Randazza Decl.”], attached as Exhibit 3, ¶¶ 2-7.)
On May 22, 2015, Mr. Berger contacted Dr. Parisi by phone. (Declaration
of Thomas Parisi [“Parisi Decl.”], attached as Exhibit 4, ¶ 8.) During this
conversation, Mr. Berger asked Dr. Parisi about his expert witness billing rates,
and Dr. Parisi informed him of them. (Parisi Decl. ¶ 9.) After being told of Dr.
Parisi’s rates, Mr. Berger threatened him with criminal prosecution, stating that
charging different rates for written testimony and trial testimony was “illegal”
and that he would need to retain legal representation. (Parisi Decl. ¶ 10.) Berger
went so far as to threaten Dr. Parisi with criminal prosecution. (Parisi Decl. ¶ 10.)
Dr. Parisi felt intimidated and frightened by Mr. Berger’s threats, especially in light
of Roca’s prior behavior. (Parisi Decl. ¶¶ 11-12, 15.) Dr. Parisi is hesitant to testify
on Defendants’ behalf, specifically due to Mr. Berger’s threats. (Parisi Decl. ¶ XX.)
Defendants’ counsel contacted Mr. Berger after learning of this
conversation and asked Mr. Berger to explain himself. (See Email from Marc
Randazza to Paul Berger dated May 22, 2015, attached as Exhibit 5.) In response,
Mr. Berger claimed that Mr. Randazza had instructed Dr. Parisi to charge a
different billing rate for Roca. (See Email from Paul Berger to Marc Randazza
3

 Case 8:14-cv-02096-VMC-EAJ Document 131 Filed 05/25/15 Page 4 of 11 PageID 3169

dated May 22, 2015, attached as Exhibit 6.) This allegation is a complete
fabrication and in no way reflects the conversation Mr. Berger had with Dr. Parisi.
(Parisi Decl. ¶¶ 13-14.) To the extent this is even an issue, Dr. Parisi has always
made it clear that he would charge differential rates for testimony than for
research and writing, and while not all experts have charged the undersigned
differential rates, most have. There is nothing remotely actionable about it,
criminally or civilly.
It has been apparent for some time now that Roca wishes to do
everything possible to avoid having this case heard on the merits. They have
engaged in extensive needless motion practice and gamesmanship in filing
fruitless amendments to their Complaint in an attempt to avoid summary
judgment. Now they are once again intimidating Defendants’ witnesses, this
time engaging in conduct that obviously constitutes witness tampering under 18
U.S.C. § 1512, in violation of this Court’s Order from September 2014. If this court
does not rein in this conduct, who will?
2.0

ARGUMENT
2.1

Legal Standards

This Court has the inherent power to assess sanctions, including an award
of attorneys’ fees and costs, on Plaintiff and Plaintiff’s counsel because they
have “acted in bad faith, vexatiously, wantonly or for oppressive reasons.” Cox
Enterprises, Inc. v. News-Journal Corp., 2012 U.S. Dist. LEXIS 97998 at *12 (M.D. Fla.
June 16, 2012). Courts in the Eleventh Circuit may exercise their inherent power
to grant sanctions for “bad faith acts preceding and during litigation.” Kreager
v. Solomon & Flanagan, P.A., 775 F.2d 1541, 1543 (11th Cir. 1985); see also
Rodriguez v. Marble Care Int’l, Inc., No. 10-23223, 2012 WL 1949360 at *9 (S.D. Fla.
Mar. 5, 2012). In the event that a party violates a court’s order, the court also has

4

 Case 8:14-cv-02096-VMC-EAJ Document 131 Filed 05/25/15 Page 5 of 11 PageID 3170

the inherent power to enforce its orders through civil contempt. See Riccard v.
Prudential Ins. Co., 307 F.3d 1277, 1296 (11th Cir. 2002).
In “determining the propriety of a bad faith fee award, ‘the inquiry will
focus primarily on the conduct and motive of a party, rather than on the validity
of the case.’” Rothenberg v. Security Management Co., Inc., 736 F.2d 1470, 1472
(11th Cir. 1984) (internal citations omitted). Furthermore, under its inherent
powers, “a court can sanction an attorney and the attorney’s law firm for bad
faith litigation conduct.” Rodriguez, 2012 WL 1949360 at *9 (citing Spolter v.
Suntrust Bank, 403 Fed. Appx. 387, 2010 WL 4608772 (11th Cir. 2010) (affirming
award of fees against individual lawyer and his law firm pursuant to the court’s
inherent powers).
In addition to imposing a sanction of attorneys’ fees, the Court has the
inherent power to disqualify an attorney for violating rules and ethical standards.
See Kleiner v. First Nat’l Bank of Atlanta, 751 F.2d 1193 (11th Cir. 1985)
(disqualifying attorney from further representation in case and finding that “[a]
trial judge possesses the inherent power to discipline counsel for misconduct,
short of behavior giving rise to disbarment or criminal censure, without resort to
the power of civil or criminal contempt”); See also Ward v. Nierlich, 2006 U.S. Dist.
LEXIS 97373 at *21 (S.D. Fla. Sept. 20, 2006) (disqualifying attorney for promise to
pay witnesses for testimony). While the party requesting disqualification “bears
the burden of establishing grounds for disqualification, in determining whether
disqualification is warranted, all doubts must be resolved in favor of
disqualification”). Contant v. Kawasaki Motors Corp., 826 F. Supp. 427, 428 (M.D.
Fla. 1993).
A dismissal of an action with prejudice is also an appropriate sanction in
the face of particularly egregious conduct.

5

 Case 8:14-cv-02096-VMC-EAJ Document 131 Filed 05/25/15 Page 6 of 11 PageID 3171

Aside from being illegal under 18 U.S.C. § 1512, threats of criminal
prosecution to gain an advantage in litigation violate the Florida Rules of
Professional Conduct. Rule 4-3.4(g) provides that an attorney must not “present,
participate in presenting, or threaten to present criminal charges solely to obtain
an advantage in a civil matter.”
2.2

Plaintiff and Its Counsel Have Engaged In Witness Intimidation

As the Court noted in its September 23, 2014 Order, 18 U.S.C. § 1512
“prohibits knowingly using intimidation or threats ‘to influence, delay, or prevent
the testimony of any person in an official proceeding’ or attempting to do so.”
(Doc. # 17 at 1.) Such prohibited conduct includes actions that “intentionally
harass[] another person and thereby hinder[], delay[], prevent[], or dissuade[]
any person from attending or testifying in an official proceeding.” 18 U.S.C. §
1512(d)(1). This statute “was written broadly to encompass non-coercive efforts
to tamper with a witness.” United States v. Amato, 86 F. App’x 447, 450 (2d Cir.
2004).
A party offends Section 1512 if it is “motivated by an improper purpose.”
United States v. Thompson, 76 F.3d 442, 452 (2d Cir. 1996). It is an improper
purpose to cause a witness to withhold relevant facts about a defendant’s
wrongful acts. See United States v. Price, 443 F. App’x 576, 582 (2d Cir. 2011).
Even when there is an absence of evidence of intent behind the message, or an
absence of evidence concerning the effect thereof, 18 U.S.C. §1512 acts to
prohibit a party from engaging in acts that may negatively influence testimony.
See Chevron Corp. v. Donziger, 974 F. Supp. 2d 362, 594-595 (S.D.N.Y.2014).
There are out-of-circuit cases addressing different factual contexts that
say that merely threatening litigation is not witness intimidation.1 However, in a
See G-I Holdings, Inc. v. Baron & Budd, 179 F. Supp. 2d 233, 266 (S.D.N.Y. 2001);
Philadelphia Reserve Supply Company v. Nowalk & Associates, Inc., 1992 U.S.
1

6

 Case 8:14-cv-02096-VMC-EAJ Document 131 Filed 05/25/15 Page 7 of 11 PageID 3172

factual scenario very similar to the one at hand, the U.S. Court of Appeals for the
11th Circuit took a contrary approach, which is controlling. See United States v.
Tison, 780 F.2d 1569 (11th Cir. 1986). In Tison, the 11th Circuit evaluated the
question of whether a civil suit against a witness could constitute obstruction or
harassment of a witness in violation of 18 U.S.C. §1512 and §1514. In Tison, a
federal grand jury handed down an indictment, which charged Scan Realty
Services, Inc. with RICO and RICO conspiracy violations. One week after the
indictment was handed down, Tison, the attorney representing Scan Realty,
threatened to sue the witness in that case, Bean, for not providing information
regarding his grand jury testimony to the attorney. The 11th Circuit determined
that this amounted to witness tampering and enjoined such conduct. Id. at 1573.
While Tison was largely predicated on §1514, and not §1512, the holding
still applies. Threatening or filing a civil suit against a witness during the course of
the case they are testifying in, gives rise to harassment of that witness, and must
be prohibited. Such conduct is even more egregious when the party threatens
the witness with criminal prosecution, rather than mere civil litigation. Such
threats are not standard litigation tactics contemplated by the court in G-I
Holdings, but amount to impermissible intimidation that is not only illegal, but
obviously in violation of Florida’s Rules of Professional Conduct. See Rule 4-3.4(g.).
Here, counsel for Roca Labs has threatened one of Defendants’ expert
witnesses with criminal prosecution. Mr. Berger knew when he made this threat

Dist. LEXIS 12745, Civ. A. No. 91-0449, 1992 WL 210590 (E.D. Pa. Aug. 25, 1992).
(Explaining that the logic in this case is that countersuits are not witness
intimidation. “One cannot threaten to sue someone and expect there to be no
reaction or response. In sum, waging a counterattack to civil litigation, without
factual allegations of unlawful means, does not amount to witness
intimidation.”) Furthermore, as described in greater detail below, those cases
are notably different than the case at hand.

7

 Case 8:14-cv-02096-VMC-EAJ Document 131 Filed 05/25/15 Page 8 of 11 PageID 3173

that Dr. Parisi had not engaged in any criminal activity. The only reason that Mr.
Berger threatened Dr. Parisi was to gain an advantage in this litigation by
intimidating an expert witness to withdraw on the eve of the discovery cutoff,
when the deadline to designate new experts has expired. There is no question
that this is an “improper purpose” under 18 U.S.C. § 1512. It is similarly
unambiguous that this threat of criminal prosecution violated Mr. Berger’s
ethical obligations to the Florida Bar. See Florida Rule of Professional Conduct 43.4(g). Roca Labs and its counsel have demonstrated time and again that their
ethics are malleable. Defendants have little option but to plead with this Court
that if it is going to allow Plaintiff’s frivolous claim to go forward, it must at least
respect the rules of this Court and the law.
2.3

Case-Terminating Sanctions Are Appropriate

A court may impose sanctions for litigation misconduct under its inherent
power. See Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991). The court's inherent
power derives from the court's need "to manage [its] own affairs so as to
achieve the orderly and expeditious disposition of cases." Link v. Wabash R. Co.,
370 U.S. 626, 630-31 (1962). "The key to unlocking a court's inherent power is a
finding of bad faith." Barnes v. Dalton, 158 F.3d 1212, 1214 (11th Cir. 1998). "A
party demonstrates bad faith by delaying or disrupting the litigation or
hampering enforcement of a court order." Id.
While an extreme remedy, a district court has the power to dismiss an
action with prejudice as a sanction when: “(1) a party’s failure to comply with a
court order is a result of willfuliness or bad faith; and (2) less drastic sanctions
would not ensure compliance with the court’s orders.” United States ex rel. King
v. Dse, Inc., 2013 US. Dist. LEXIS 22245 at *32 (M.D. Fla. Jan. 17, 2013).
Case-terminating sanctions are appropriate here. Roca and its attorneys
have time and again shown that they are willing to engage in unethical
8

 Case 8:14-cv-02096-VMC-EAJ Document 131 Filed 05/25/15 Page 9 of 11 PageID 3174

conduct to drag this case out as long as possible and to avoid any sort of
adjudication on the merits. They have now willfully violated orders of this Court
and have threatened an expert witness with criminal prosecution. There is little
reason to think that any sanction less than dismissal of this case with prejudice
will keep Plaintiff and its counsel from continuing to engage in this conduct.
3.0

CONCLUSION
For the foregoing reasons, Defendants request that this Court issue an

order that Roca Labs and its counsel, and any successor counsel, must cease
from any further acts of witness intimidation.
Further, Defendants request that this Court issue an Order to Show Cause
as to why Paul Berger, Esq. should not be sanctioned for his actions, and why
that sanction should not include an order disqualifying him from this case, and
why he and Roca Labs should not be compelled to pay Defendants’ attorneys
fees incurred in bringing this motion.
LOCAL RULE 3.01(g) CERTIFICATION
As Defendants seek dismissal of this action, they are not required to meet
and confer with Plaintiff’s counsel prior to filing this Motion. Nevertheless, counsel
for Defendants conferred via email with Paul Berger regarding the relief
requested in this Motion. Mr. Berger’s response made it clear that there was no
possible way to resolve this dispute without filing a motion.

9

 Case 8:14-cv-02096-VMC-EAJ Document 131 Filed 05/25/15 Page 10 of 11 PageID 3175

Respectfully Submitted,
Marc J. Randazza
________________________
Marc J. Randazza, Esq.
Florida Bar No. 625566
RANDAZZA LEGAL GROUP
3625 S. Town Center Drive
Las Vegas, Nevada 89135
Tele: 702-420-2001
Fax: 305-437-7662
Email: ecf@randazza.com

10

 Case 8:14-cv-02096-VMC-EAJ Document 131 Filed 05/25/15 Page 11 of 11 PageID 3176

CASE NO.: 8:14-cv-02096-VMC-EAJ
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on 25 May 2015, I electronically filed the foregoing
document with the Clerk of the Court using CM/ECF. I also certify that a true
and correct copy of the foregoing document is being served upon counsel for
Plaintiff, via transmission of Notices of Electronic Filing generated by CM/ECF.

________________________
An employee / agent of
RANDAZZA LEGAL GROUP

11