In re: Deposition of Matthew Lefande , 919 F.3d 554 ( 2019 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 15, 2019 Decided March 26, 2019
No. 18-7031
IN RE: DEPOSITION OF MATTHEW A. LEFANDE, ESQ.,
UNITED STATES,
APPELLEE
v.
MATTHEW AUGUST LEFANDE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:17-mc-02466)
Matthew August LeFande, pro se, argued the cause for
appellant. On the briefs was Horace L. Bradshaw Jr.
Nicholas P. Coleman, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Jessie K. Liu,
U.S. Attorney, and Elizabeth Trosman and John P. Mannarino,
Assistant U.S. Attorneys.
Before: MILLETT and PILLARD, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge PILLARD.
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PILLARD, Circuit Judge: Matthew LeFande appeals an
order summarily holding him in criminal contempt for refusing
a magistrate judge’s orders to take the witness stand and be
sworn for in-court questioning on the record in lieu of an
ordinary, out-of-court deposition in a civil action. LeFande
served as counsel for defendants in an underlying civil case,
District Title v. Warren, No. 14-1808 (D.D.C.). After the
district court in that case entered judgment against LeFande’s
clients for nearly $300,000, District Title sought to enforce its
judgment. To that end, it wanted to depose LeFande because
District Title had reason to believe he knew about and may
have aided his clients’ transfer of assets to New Zealand to
evade the judgment. Numerous attempts to serve LeFande with
a subpoena failed. When LeFande appeared before the
magistrate judge for a status conference, she ordered him
orally, by minute order, and by separate written order to appear
in court and take the witness stand for questioning under the
court’s supervision. LeFande appeared with his counsel on the
date ordered, but repeatedly refused to take the stand, citing
attorney-client and Fifth Amendment privileges, among other
objections. The magistrate judge accordingly found him in
criminal contempt and imposed a fine of $5,000. The district
court overruled LeFande’s objections and confirmed the
magistrate judge’s criminal contempt order.
On appeal, LeFande asks us to vacate the contempt order
and enter a protective order shielding him from future demands
for his deposition. He argues that the district court lacked
subject-matter jurisdiction over the post-judgment discovery
proceeding for which it sought his deposition because one of
the judgment debtors died and the other filed for bankruptcy;
that it lacked personal jurisdiction over him because he was
never served with a subpoena; that the order to testify violated
the attorney-client privilege; and that District Title sought the
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discovery for an improper purpose. Because none of those
arguments has merit, we affirm the criminal contempt order.
I. Background
This litigation saga started when funds transferred as part
of a real estate transaction went to the wrong person. In 2014,
Anita Warren sold a piece of real estate through District Title,
a real estate settlement company. District Title mistakenly
transferred more than half of the proceeds of the sale—
$293,514.44—to Warren’s bank account rather than to her
mortgage lender, Wells Fargo Bank. Warren promptly
transferred the funds to her son, Timothy Day.
When Warren and Day refused to return the money,
District Title filed suit in District of Columbia Superior Court
to recover it. LeFande, representing Warren and Day, removed
the action to the United States District Court on diversity
grounds. See 28 U.S.C. § 1441.
District Title moved for a preliminary injunction to
prevent Warren and Day from transferring any of their real or
personal property and to require them to seek court approval to
disburse funds for their living expenses, health expenses, or
other necessities. The next day, Timothy Day sold a house he
owned in Saint Mary’s County, Maryland, for a below-market
price. District Title contends that LeFande counseled Day in
that matter, and that LeFande was involved in the transfer of
the funds from that sale to a bank account in New Zealand. A
few weeks later, the district court entered a preliminary
injunction forbidding Warren and Day from transferring or
dissipating their assets and requiring them to account for all
their assets, withdrawals, and transfers, while District Title’s
collection action was pending and their debt not otherwise
secured. Dist. Title v. Warren, 181 F. Supp. 3d 16, 29-30
(D.D.C. 2014). We affirmed the preliminary injunction. Dist.
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Title v. Warren, 612 F. App’x 5 (D.C. Cir. 2015). Following
discovery into District Title’s underlying breach-of-contract
and unjust enrichment claims, the district court entered
summary judgment in favor of District Title in the amount of
$293,514.44 and permanently enjoined Warren and Day from
“dissipating their assets until the judgment is satisfied.” Dist.
Title v. Warren, No. 14-1808 (ABJ), 2015 WL 7180200, at *10
(D.D.C. Nov. 13, 2015). We again affirmed. Dist. Title v.
Warren, No. 15-7157, 2016 WL 3049558 (D.C. Cir. May 4,
2016).
Meanwhile, District Title moved under Federal Rule of
Civil Procedure 69(a)(2) to conduct post-judgment discovery
to support collection on the judgment. As relevant here,
District Title requested leave to issue subpoenas ad
testificandum and duces tecum to LeFande, who it asserted
“may have information concerning assets held or transferred by
Timothy Day,” particularly the St. Mary’s property proceeds.
Supplemental Appendix (S.A.) 95-96. Before the district court
acted on that motion, in April 2017 LeFande filed a
“Suggestion of Death” to notify the court and District Title that
Day had recently died.
Soon thereafter, District Title moved for an order to show
cause as to why LeFande should not be held in contempt for
violating the district court’s injunction, and renewed its request
for leave to issue a subpoena to LeFande. See S.A. 127-32. In
support of its motion, District Title offered evidence that
LeFande had “actively participated” in concealing Day’s assets
by instructing the settlement company involved in Day’s sale
of his Saint Mary’s property to transfer the proceeds to a New
Zealand bank account. S.A. 129-30; see also S.A. 135-42.
LeFande opposed the motion and sought a protective order to
prevent his deposition, citing, inter alia, Fifth Amendment and
attorney-client privileges.
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The magistrate judge to whom the district court had
assigned the post-judgment discovery, see Dist. Title v.
Warren, 265 F. Supp. 3d 17, 20 n.3 (D.D.C. 2017), granted
District Title’s request for issuance of a subpoena to LeFande
and denied LeFande’s motion for a protective order on the
ground that he lacked any basis to avoid deposition and would
have to assert any relevant privileges on a question-by-question
basis. Dist. Title v. Warren, No. 14-1808 (ABJ/DAR), 2017
WL 2462489, at *5 (D.D.C. June 2, 2017). The district court
enforced the magistrate judge’s order and affirmed that
“LeFande must sit for the deposition” and assert any applicable
privileges in response to specific questions. Dist. Title, 265 F.
Supp. 3d at 22-23.
District Title’s ensuing efforts to obtain LeFande’s
deposition were thwarted by their determinedly uncooperative
object. See S.A. 212-14. LeFande did not respond to opposing
counsel’s repeated letters sent by overnight delivery and email,
nor to several visits by the process server to LeFande’s home,
all attempting to schedule the deposition. The process server
tried six times to serve LeFande in person, leaving multiple
notes seeking a convenient time, and twice saw a vehicle
matching the housekeeper’s description of LeFande’s car make
“a U-turn at the top of the cul-de-sac” once it was close enough
to see the process server’s car waiting near LeFande’s house.
See S.A. 229-30. When District Title sought to schedule the
deposition without formal service, LeFande refused to
cooperate and failed to appear for the noticed deposition. See
S.A. 213.
The magistrate judge then ordered the parties to appear for
a September 15, 2017, status conference. At that conference,
with LeFande present and represented by counsel, the
magistrate judge ordered LeFande to appear in court for his
deposition on September 21, 2017—a date agreed to by both
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parties’ counsel—and reiterated the court’s earlier instruction
that the basis for any privilege objection to a particular question
be stated on the record at that time. The magistrate judge made
that order orally in open court, then memorialized it in a minute
order, and also issued a separate written order to the same
effect.
Three days later, LeFande moved to dismiss the post-
judgment proceedings with respect to Day, asserting that
District Title’s failure to identify a personal estate
representative to replace Day within ninety days following the
notice of his death warranted dismissal of the underlying action
under Federal Rule of Civil Procedure 25(a). The district court
entered an order noting that it would “rule on the motion in due
course,” but that the order directing LeFande to testify
remained in effect because the post-judgment discovery
District Title sought from LeFande related to claims against
both judgment creditors and no grounds had been raised to
dismiss the case against Warren. Joint Appendix (J.A.) 85.
The next day, LeFande filed for bankruptcy on Warren’s
behalf, triggering an automatic stay of any attempt to enforce
the judgment against her. See 11 U.S.C. § 362.
The day before LeFande’s scheduled deposition, the
district court denied the motion to dismiss the claims against
Day’s estate, noting that it appeared “to be one of a number of
recent steps taken by [LeFande] in an effort to avoid complying
with orders of this Court.” Dist. Title v. Warren, No. 14-1808
(ABJ), 2017 WL 6816482, at *1 (D.D.C. Sept. 20, 2017).
Because neither LeFande nor his counsel, who filed the motion,
represented Day’s estate, the court held that they lacked
standing to seek dismissal under Rule 25(a), and that a death
notice neither filed by nor identifying a successor or
representative of the estate did not trigger Rule 25(a)’s ninety-
day time limit. See id. at *3-4. The court concluded that
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LeFande “remain[ed] under Court order to appear for a
deposition” in court the next day. Id. at *4. The court
cautioned that “[f]ailure to attend and to respond on a question
by question basis will be a direct violation of the Magistrate
Judge’s September 15, 2017 order, and this Court’s orders of
September 18 and today.” Id. at *3.
LeFande appeared in court, but repeatedly refused the
court’s orders to take the stand to be questioned. See J.A. 95-
100. He said: “I appear here under duress. I have never been
served in this case. I am not a party in this case.” J.A. 98-99.
After offering him multiple opportunities to comply with the
order to testify, the magistrate judge held LeFande in criminal
contempt and imposed a $5,000 criminal contempt fine under
28 U.S.C. § 636(e)(2).
LeFande moved the district court to vacate the criminal
contempt order; the district court affirmed the magistrate
judge’s order. In re Deposition of LeFande, 297 F. Supp. 3d 1
(D.D.C. 2018). The district court explained that LeFande could
“not avoid appearing at the deposition entirely with a blanket
assertion of attorney-client privilege,” but instead “was
required to take the stand and to assert both the Fifth
Amendment privilege and the attorney-client privilege on a
question-by-question basis.” Id. at 5. The court further found
that “all of the elements required to uphold the criminal
contempt order” were met. Id. LeFande “not only disobeyed
the Magistrate Judge’s multiple orders in the courtroom in her
presence, but he also failed to comply with the opinions and
orders of this Court which required him to appear to and
respond to the questions on an individual basis,” impeding the
administration of justice. Id. at 5-6. The court added that the
evidence in the case was “sufficient to establish beyond a
reasonable doubt that LeFande had the necessary intent, and
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that his actions were both calculated and willful.” Id. at 6
(internal quotation marks omitted).
LeFande timely appealed to this court, and then moved to
strike District Title as an appellee, contending that the United
States was the only proper appellee to defend the validity of a
criminal contempt order. See Mot. to Strike Named Appellee,
No. 18-7031 (D.C. Cir. Mar. 19, 2018). We granted the United
States’ motion to substitute itself for District Title on the
contempt appeal. See Order, No. 18-7031 (D.C. Cir. Aug. 22,
2018).
II. Analysis
Magistrate judges “have the power to punish summarily
by fine or imprisonment, or both, such contempt of the
authority of such magistrate judge constituting misbehavior of
any person in the magistrate judge’s presence so as to obstruct
the administration of justice.” 28 U.S.C. § 636(e)(2). We
review a criminal contempt citation by asking “whether a fair-
minded and reasonable trier of fact could accept the evidence
as probative of a defendant’s guilt beyond a reasonable doubt.”
In re Sealed Case, 627 F.3d 1235, 1237 (D.C. Cir. 2010)
(internal quotation marks and alterations omitted) (quoting In
re Holloway, 995 F.2d 1080, 1082 (D.C. Cir. 1993)).
That standard is readily met here. LeFande does not
dispute that, in the magistrate judge’s presence, he willfully
violated her orders to submit to in-court questioning on the
record. He argues instead that (1) the district court lacked
subject-matter jurisdiction over the underlying post-judgment
discovery proceedings; (2) the court lacked personal
jurisdiction over him because he was never served with a
subpoena; (3) the order to testify violated the attorney-client
privilege; and (4) the discovery was “inappropriate” and sought
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for an “improper” purpose. Appellant’s Br. 17, 30, 34, 41, 44.
Each argument is without merit.
First, the district court indisputably had jurisdiction over
the underlying action, see S.A. 1 (notice of removal, filed by
LeFande, setting forth the basis for removal jurisdiction based
on diversity of citizenship), which included proceedings to
enforce that judgment, see Federal Rule of Civil Procedure
69(a)(2). In any event, subject-matter jurisdiction over an
underlying action is not a precondition of a federal court’s
authority to sanction those who violate its orders. LeFande
argues that judgment cannot be executed against a debtor in
bankruptcy or a dead party, and that the district court therefore
lacked subject-matter jurisdiction to pursue discovery in aid of
its judgment against his clients. Leaving the merits of those
claims aside, the Supreme Court has specifically “upheld a
criminal contempt citation even on the assumption that the
District Court issuing the citation was without jurisdiction over
the underlying action.” Willy v. Coastal Corp., 503 U.S. 131,
137 (1992) (citing United States v. United Mine Workers, 330
U.S. 258 (1947)) (upholding Rule 11 sanctions imposed by a
court found in the interim to have lacked subject-matter
jurisdiction). That is because a criminal contempt charge is “a
separate and independent proceeding at law that is not part of
the original action,” enabling a court to “make an adjudication
of contempt and impose a contempt sanction even after the
action in which the contempt arose has been terminated.”
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396 (1990)
(internal quotation marks omitted). So, even when “the basic
action has become moot,” “[v]iolations of an order are
punishable as criminal contempt.” United Mine Workers, 330
U.S. at 294; accord Gompers v. Buck’s Stove & Range Co., 221
U.S. 418, 451 (1911). LeFande’s violation of the district
court’s orders are likewise punishable as criminal contempt,
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regardless of the court’s subject-matter jurisdiction over post-
judgment discovery.
Second, there is no question that the district court has
personal jurisdiction over LeFande based on his nexus with the
forum and the case. His objection is that, “[a]bsent service of
process, the District Court was without personal jurisdiction
over Attorney LeFande.” See Appellant’s Br. 30. That is his
central service-based objection, and it is entirely misdirected.
“Although questions of service of process” and personal
jurisdiction “often are closely intertwined, service of process is
merely the means by which the district court, having a
sufficient basis for jurisdiction . . . asserts [it] over the party
. . . and affords her due notice of the commencement of the
action.” 4A Charles A. Wright & Arthur R. Miller, Federal
Practice & Procedure § 1083 (4th ed. 2018). This is not a case
in which service within the forum was the basis of the court’s
personal jurisdiction. Cf. Burnham v. Superior Court, 495
U.S. 604 (1990). Contrary to LeFande’s contention, the lack
of a subpoena had no effect on the court’s personal jurisdiction
over him, which is well established in accordance with
statutory and constitutional requirements.
As a statutory matter, “[i]n a diversity case, the federal
district court’s personal jurisdiction over the defendant is
coextensive with that of a District of Columbia court.” Helmer
v. Doletskaya, 393 F.3d 201, 205 (D.C. Cir. 2004). The District
of Columbia’s long-arm statute gives the courts here
jurisdiction “over a person” such as LeFande “as to a claim for
relief arising from the person’s . . . transacting any business in
the District of Columbia,” including the business of
representing clients. See D.C. Code § 13-423(a)(1). As a
member of the District of Columbia bar, LeFande voluntarily
appeared in our courts as counsel of record for Day and Warren
in District Title, and it was his representation in that case that
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gave rise to the court’s order to submit to questioning on the
record. The long-arm provision constitutionally applies here.
LeFande’s acts of deliberately transacting business in the
District—by joining the D.C. bar and appearing as counsel for
private clients in courts within the District—established
“minimum contacts with [the District of Columbia] such that
the maintenance of the suit does not offend traditional notions
of fair play and substantial justice.” Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945) (internal quotation
marks omitted).
LeFande’s briefs in this court do not clearly object to the
absence of subpoena service per se, other than as a ground for
want of personal jurisdiction, but to the extent that he raises it,
the argument fails in any event on the unusual facts of this case.
For an ordinary deposition of a witness with no other
involvement in a case, service of a subpoena is the means by
which compulsory jurisdiction is formally asserted over the
deponent and notice given. See 9A Wright & Miller, supra,
§ 2460. But this was not an ordinary deposition. LeFande, an
officer of the court and counsel in the underlying case, had
repeatedly failed to cooperate in scheduling his deposition. In
that rare and confounding context, the magistrate judge on
September 15 issued her oral, in-court order to LeFande, as he
personally stood before her, and confirmed both by minute
order on the docket and separate written order the requirement
that he appear on September 21 for his in-court deposition.
We recognize that “[w]hen as here, the issue is the
propriety of a particular technique of serving a particular type
of process”—such as compelling a witness to appear to
testify—“neither subject matter jurisdiction nor personal
jurisdiction in either the ‘power’ or the ‘notice’ sense is directly
at issue.” FTC v. Compagnie De Saint-Gobain-Pont-a-
Mousson, 636 F.2d 1300, 1319 (D.C. Cir. 1980). For the
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reasons just described, the court had “power”—jurisdiction—
over LeFande. And it also gave LeFande clear notice of the
purpose for which the court sought his appearance, far enough
in advance to permit him to procure representation, prepare,
and file a motion to quash. LeFande does not claim otherwise.
Yet he did not object to the oral order directing his appearance
even though his personal counsel was present with him, see
Supplemental Order (Regarding the Appearance of Counsel for
Mr. LeFande) (Sept. 15, 2017) (S.A. 234), nor did he file a
motion to quash the order directing his appearance. In fact, he
timely appeared on the appointed date with counsel, and was
physically present in court at the time of the disputed contempt
citation.
Again, although LeFande did not specifically raise the
point on appeal, we think the form of the judge’s in-person
order sufficed to compel LeFande to give testimony. Cf.
Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344,
350 (1999) (“One becomes a party officially . . . only upon
service of a summons or other authority-asserting measure
. . . .”) (emphasis added). Compulsory process—in contrast to
a civil complaint—generally “may be served upon an unwilling
witness only in person,” because, should a witness fail to
comply with a properly served subpoena, “the full enforcement
power of the federal courts may immediately be brought to bear
upon him” in the form of contempt proceedings. Compagnie
De Saint-Gobain-Pont-a-Mousson, 636 F.2d at 1313. Here, no
subpoena was successfully served on LeFande’s person. See
J.A. 71-72 (affidavit regarding multiple service attempts).
Instead, the judge issued an order to LeFande in person
summoning him to return at the specified time to give his
deposition testimony under the court’s supervision. As every
lawyer knows, a court order is backed by the contempt power.
LeFande points to nothing at the hearing or in the intervening
six days reflecting any objection to the order to appear on
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grounds of lack of personal subpoena service. Given
LeFande’s recalcitrance and his status as an officer of the court,
the court’s in-person issuance of the deposition order was a
sufficiently formal way to assert the compulsory power of the
court over him such that the lack of a personally served
subpoena under Rule 45 has no effect on the validity of the
court’s contempt citation. We express no general approval,
beyond the unusual circumstances of this case, of a court order
as an adequate substitute for a subpoena.
Third, LeFande’s objection that the order to testify
violated the attorney-client privilege is contrary to circuit law,
and to the magistrate judge’s and district judge’s prior orders
applying that precedent to LeFande. LeFande bore the burden
to establish any claim of privilege in the context of a specific
pending question from District Title; a “blanket assertion of the
privilege [does] not suffice.” In re Lindsey, 158 F.3d 1263,
1270 (D.C. Cir. 1998). LeFande did not come close to meeting
his burden. He made no showing that he could not have
preserved any claims of privilege his clients may have had
while also complying with the court’s order. As the court had
earlier specified in rejecting LeFande’s blanket assertion of
privilege, the correct process for asserting any relevant
privileges was to take the stand and assert the claim and its
basis in response to questions eliciting information LeFande
believed to be privileged. LeFande did not even attempt to
defend his wholesale refusal by showing, for example, that
District Title sought only privileged information—nor could he
have, as the discovery plainly swept more broadly. See S.A.
226-28, 244-53 (District Title sought documents and proposed
questions probing information other than communications
between LeFande and his clients).
LeFande asserts that District Title failed to establish the
crime-fraud exception to the attorney-client privilege, but the
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existence of a privileged communication is a precondition to
any need to establish the crime-fraud exception. See In re
Sealed Case, 107 F.3d 46, 49 (D.C. Cir. 1997). District Title
had no obligation to establish any exception unless and until
LeFande appeared and properly asserted a valid claim of
privilege. The criminal contempt order addresses LeFande’s
refusal at that predicate step, to which his crime-fraud
argument is no defense.
Fourth, the validity of the contempt order is unaffected by
LeFande’s assertion that District Title sought to depose him for
the “improper purpose” of driving a “wedge between Attorney
LeFande and the then remaining indigent co-Defendant, in
order to deprive that party of legal representation.” Appellant’s
Br. 41-42. As we explained when we substituted the United
States for District Title to defend the contempt order, the
contempt citation is not about District Title; it “was entered to
vindicate the judicial power of the United States.” Order at 1,
No. 18-7031 (D.C. Cir. Aug. 22, 2018) (citing United States v.
Providence Journal Co., 485 U.S. 693, 700 (1988)). In any
event, there is no record basis for LeFande’s effort to impugn
District Title’s purpose for questioning him.
Finally, LeFande’s argument that discovery as to the Saint
Mary’s County property transaction is “inappropriate” makes
no sense. Appellant’s Br. 44. Whatever the merit—or not—of
LeFande’s objections to particular discovery orders, he may
not refuse to comply with an order of the court just because he
disagrees with it. As spelled out above, a “criminal contempt
charge is . . . a separate and independent proceeding at law that
is not part of the original action.” Cooter & Gell, 496 U.S. at
396 (internal quotation marks omitted).
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* * *
Because none of LeFande’s objections has merit, we
affirm the order holding him in criminal contempt of court.
So ordered.