954 F.2d 888 (3rd Cir. 1992), 91-5265, Taberer v. Armstrong World Industries, Inc.

Docket Nº:91-5265.
Citation:954 F.2d 888
Party Name:John H. TABERER, Margaret Taberer, his wife, v. ARMSTRONG WORLD INDUSTRIES, INC., Asten-Hill Manufacturing Company, the Celotex Corporation, Eagle-Picher Industries, Inc., Fibreboard Corporation, H.K. Porter Company, Inc., Hopeman Brothers, Inc., Keene Corporation, Owens-Corning Fiberglas Company, Owens-Illinois Glass Company, Pittsburgh Corning Co
Case Date:January 23, 1992
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 888

954 F.2d 888 (3rd Cir. 1992)

John H. TABERER, Margaret Taberer, his wife,

v.

ARMSTRONG WORLD INDUSTRIES, INC., Asten-Hill Manufacturing

Company, the Celotex Corporation, Eagle-Picher Industries,

Inc., Fibreboard Corporation, H.K. Porter Company, Inc.,

Hopeman Brothers, Inc., Keene Corporation, Owens-Corning

Fiberglas Company, Owens-Illinois Glass Company, Pittsburgh

Corning Corporation, P.P.G. Industries, Raymark Industries,

Inc., Southern Textile Corporation, Turner & Newall, Ltd.,

Forty-Eight Insulating, Inc., National Gypsum Company,

Manville Personal Injury Settlement Trust, United States

Gypsum Company,

David M. Weinfeld, Appellant.

No. 91-5265.

United States Court of Appeals, Third Circuit

January 23, 1992

Argued Sept. 3, 1991.

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Randy H. Kaplan (argued), Merchantville, N.J., for appellant.

Michael Chertoff, U.S. Atty., Daniel J. Gibbons (argued), Asst. U.S. Atty., Newark, N.J., for appellee.

Before BECKER, SCIRICA, Circuit Judges and VanARTSDALEN, District Judge. [*]

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OPINION OF THE COURT

BECKER, Circuit Judge.

Appellant David Weinfeld, a Pennsylvania lawyer, represented the plaintiffs in a number of asbestos cases transferred from the district court for the Eastern District of Pennsylvania to the district court for the District of New Jersey. Weinfeld appeals from an order of a New Jersey district judge adjudging him guilty of criminal contempt, fining him $5,000, and revoking his pro hac vice status in all cases pending before that district judge.

Weinfeld was charged with contempt because he failed to appear on several occasions before the United States magistrate judge to whom pretrial proceedings in some of the asbestos cases had been assigned, even though the magistrate judge specifically commanded Weinfeld's presence. As will appear, the contempt proceedings were plagued by confusion over the source of the magistrate judge's authority, which in turn caused confusion about the functions of both the magistrate judge and the district judge. The appeal thus raises interesting and important questions concerning the respective responsibilities of the magistrate judge and the district judge in punishing criminal contempts committed in proceedings before a magistrate judge.

The first question is whether either 28 U.S.C. § 636 (1988 & West Supp.1991) or 18 U.S.C. § 3401 (1988 & West Supp.1991), the statutes that define the jurisdiction of magistrate judges, authorizes a magistrate judge who desires to act upon a perceived contempt to do as the magistrate judge did here: hold a hearing at which the alleged contemnor must show cause why he should not be held in contempt and make findings of fact and conclusions of law. The second question is whether 28 U.S.C. § 636(e), which provides that after a magistrate judge has "certif[ied] the facts" of the perceived contempt to a judge of the district court, "[a] judge of the district court shall thereupon, in a summary manner, hear the evidence as to the act or conduct complained of," requires that the district judge try the contempt charges de novo or instead permits the district judge to do as the district judge did here and rely upon the record of the hearing before the magistrate judge (after Weinfeld declined his offer to supplement that record).

In addition, Weinfeld advances a pair of significant questions regarding criminal contempt procedures in general. First, must the district court pursue civil contempt proceedings before resorting to a criminal contempt proceeding? Second, must the contemnor's conduct actually obstruct the administration of justice before sanctions for criminal contempt may be imposed?

We conclude that judicial officers are not required to resort to other procedures before embarking on a criminal contempt proceeding, and that actual obstruction is not a sine qua non of criminal contempt. We also hold that the magistrate judge lacked jurisdiction to hold a full-dress contempt hearing and that the district judge erred in adjudicating the contempt based on the record of that hearing, instead of holding a de novo hearing. Consequently, we will reverse the order of the district court holding Weinfeld in contempt.

Because the double jeopardy clause prohibits retrial when the government has failed to present minimally sufficient evidence at the first trial, we also examine the sufficiency of the evidence against Weinfeld. We conclude that the evidence that one of the non-appearances constituted criminal contempt was sufficient to uphold a conviction and, therefore, we will remand the case to the district court for further proceedings. Finally, because the issue of Weinfeld's pro hac vice status may arise again on remand, we point out that revocation of a lawyer's pro hac vice status must be accompanied by the procedures described in our jurisprudence.

I. FACTS AND PROCEDURAL HISTORY

The background of this tempestuous appeal lies in a series of routine discovery and case management conferences before a

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magistrate judge 1 to whom a number of asbestos cases had been assigned, pursuant to District of New Jersey local rules and practice, for pretrial purposes. As far as we can ascertain, the motive force behind the contempt proceedings was an intemperate letter Weinfeld sent to opposing counsel Honora Keane on October 11, 1990. In that letter, Weinfeld complained about the alleged failure of Keane's firm to cooperate in returning his client's medical records, which were needed by the client's treating physician. Weinfeld addressed an original of the letter to each magistrate judge assigned to coordinate discovery in the asbestos cases and sent copies to Keane.

Two weeks later, Keane responded with a letter in which she denied Weinfeld's account of the dispute over the medical records and chided him for his own alleged failures to cooperate in discovery. She addressed her letter to Weinfeld, but likewise sent copies to all the magistrate judges and counsel of record. Four days later, Weinfeld wrote Keane a strongly worded letter in which he not only defended his first letter, but also recast his original complaint that Keane's firm had failed to cooperate as an accusation that Keane had deliberately acted to impede his client from recovering the medical records. He also sent copies of this letter to all the magistrate judges.

On November 1, 1990, one of the magistrate judges issued an order setting a scheduling conference for November 14, 1990. The order specifically directed Weinfeld and his associate, Donald Burak, to attend. Based on later events, we assume that the reason the magistrate judge directed Weinfeld to appear personally was to censure him for the intemperance of his letters, but the notice did not so indicate, nor was that purpose communicated to Weinfeld's office. On November 2, 1990, both Weinfeld and Burak wrote to the magistrate judge to explain that although a scheduling conflict prevented Weinfeld from attending the November 14 conference, 2 Burak would be present and prepared to discuss discovery and scheduling. The conference was held and Burak appeared.

During the November 14 conference, the magistrate judge evidently considered imposing sanctions on Weinfeld for non-appearance pursuant to Federal Rule of Civil Procedure 16(f). 3 Opposing counsel, who had been directed to prepare an order embodying the magistrate judge's rulings during the November 14 conference, drafted a proposed order directing Weinfeld to appear, pursuant to Rule 16(f), at the next conference, which was scheduled for November 26, 1990. Counsel did not prepare this proposed order until December 11, 1990, however. Moreover, although the record indicates that an unsigned copy of the proposed order was sent to Weinfeld by opposing counsel, there is no indication that this order was ever signed by the magistrate judge. According to the docket sheet, no order directing Weinfeld to attend the November 26 conference was ever entered and, at all events, that conference was postponed to December 10 at Keane's request. The proposed order postponing

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the conference from November 26 to December 10 did direct Weinfeld to appear, but it made no mention of Rule 16(f).

Weinfeld did not appear at the December 10 conference but instead sent an associate, Ellis Davison, in his place. The participants apparently disagreed about the purpose of the December 10 conference. The magistrate judge, who evidently thought that an order directing Weinfeld to appear pursuant to Rule 16(f) had been entered when it had not, announced, "This is the return of an order to show cause why sanctions should not be imposed on Mr. Weinfeld." In contrast, Davison apparently thought that he was attending an ordinary discovery conference, for, after explaining that Weinfeld was absent because he was on trial in another court that day, Davison added that he was prepared to represent the plaintiffs in a Rule 16(c) conference. 4 The magistrate judge then informed Davison that he had wanted Weinfeld to appear not only because he wished to discuss discovery and scheduling, but also because he wanted to discuss the correspondence between Weinfeld and opposing counsel. After deciding to "carry" the (nonexistent) order to show cause until the next conference, which was scheduled for January 10, 1991, the magistrate judge adjourned the proceeding.

On December 17, 1990, the magistrate judge issued an order directing Davison to obtain a copy of the transcript of the December 10 proceeding and deliver it to Weinfeld. The order further specified that the "order to show cause" was carried until the January 10 conference "at which Mr. Weinfeld shall appear or be certified in contempt of court."

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