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No. 15-1645
ANGIODYNAMICS, INC.,
Plaintiff, Appellee,
v.
BIOLITEC AG; BIOMED TECHNOLOGY HOLDINGS, LTD.;
and WOLFGANG NEUBERGER,
Defendants, Appellants.
Before
Lynch, Stahl, and Barron,
Circuit Judges.
May 6, 2016
STAHL,
Circuit
Judge.
Defendants,
who
violated
entered
included
provision.
coercive
by
civil
the
district
arrest
court.
warrant
The
and
an
contempt
order
escalating
fines
continued
to
accumulate.
We
affirmed
the
total
amount."
AngioDynamics,
Inc.
v.
Biolitec
AG
(Biolitec II), 780 F.3d 420, 428 (1st Cir.), cert. denied, 136
S. Ct. 535 (2015).
The
instructions,
contempt
district
and
order.
court
Defendants
In
this
dutifully
promptly
appeal,
followed
appealed
Defendants
the
argue
our
revised
that
the
does
not
to
venture
far
back
into
our
See AngioDynamics,
Inc. v. Biolitec AG (Biolitec I), 711 F.3d 248 (1st Cir. 2013);
Biolitec II, 780 F.3d 420 (1st Cir. 2015); AngioDynamics, Inc.
v. Biolitec AG (Biolitec III), 780 F.3d 429 (1st Cir. 2015).
For the convenience of the reader, however, we take a moment to
trace the travel of the case.
In 2012, AngioDynamics, Inc. ("ADI" or "Plaintiff")
obtained a $23 million judgment in New York against Biolitec,
Inc. ("BI") based on an indemnification clause in an agreement
between
the
two
entities.
Biolitec
I,
711
F.3d
at
250.
parents,
Biolitec
AG
Biomed
("BAG")
Technology
Holdings
(collectively,
("Biomed")
"Defendants"),
and
which,
discovery,
Defendants
refused
to
produce
Id. at 432-
Austrian subsidiary.
Id. at 433.
would
assets
transfer
BAG's
to
Austria,
precluding
ADI
from
On
December
14,
2012,
the
district
court
Id. at 250.
appealed
to
the
preliminary
however,
injunction
Id. at 252.
Defendants
decided
to
this
denied
Defendants
Court,
which
forward
with
the
Id. at 250
n.1.
despite
Defendants
repeated
effectuated
assurances
the
to
merger
the
on
March
15,
district
court
that
2013,
they
understandably,
moved
for
Id. at 211.
the
district
In response,
Id. at 212.
Neuberger defied
Id.
On
April
11,
2013,
the
district
court
issued
at
215-16.
The
decision
ordered
Defendants
to
"return
that
continue
"fines
until
and
Id. at 214-15.
incarceration
Defendants
for
effectively
restore
contempt
the
status
will
quo
Id. at
Defendants appealed.
While
injunction
the
were
stonewalling
the
contempt
order
and,
once
pending
appeal,
Defendants
district
court.
Not
only
again,
the
persisted
did
in
Defendants
contempt
order,
Defendants
also
disregarded
the
court's
left
at
its
disposal,
the
- 5 -
court
eventually
With few
entered
default
judgment
as
sanction
for
violating
its
discovery
Id. at 433.
Again,
defendants appealed.
On March 11, 2015, this Court issued decisions in two
companion
cases.
In
Biolitec
II,
we
affirmed
the
district
of
injunction.
Defendants'
motion
to
vacate
the
preliminary
attempting
to
collect."
Id.
at
428.
This
was,
its sanction order "so that the fines cease to accrue at some
total
amount,"
and
we
remanded
"for
the
sole
purpose
of
In Biolitec III,
issued that very same day, we also affirmed the district court's
- 6 -
substantive
respects"
and
"remand[ed]
only
for
to
revised
form,
contempt
Defendants
order.
now
appeal
Defendants
the
point
district
to
the
- 7 -
decision
on
April
24,
2015
to
coerce
compliance
with
an
"expired" order.
II.
Analysis
United States v.
Arreguin, 735 F.3d 1168, 1178 (9th Cir. 2013) ("We need not and
do not consider a new contention that could have been but was
not raised on the prior appeal."); In re Cellular 101, Inc., 539
F.3d 1150, 1155 (9th Cir. 2008) ("By failing to raise the . . .
issue
in
the
prior
appeal,
[the
party]
waived
its
right
to
Simply put,
As we
or
implicitly
decided
by
an
earlier
appellate
have
been
decided--during
prior
proceedings."
United
States v. Williams, 475 F.3d 468, 471 (2d Cir. 2007) (emphasis
added).
- 8 -
It
is
unclear
whether
the
Defendants'
failure
to
During
order,
the
entry
of
default
judgment,
the
final
argument,
the
argument
was
available
only
because
of
We
thus
decline
to
allow
them
to
profit
from
that
conduct, given that they are raising this argument only at this
late date.
available
defense
undermines
- 9 -
the
integrity
of
the
judicial
system,
wastes
judicial
resources,
and
imposes
posed
question
for
our
consideration
had
Defendants
seek
the
argument
revised
because
to
circumvent
this
straightforward
only
then
order
issued
was
contempt
before
raising
entered
to
this
coerce
to
hear
case,
can
never
be
forfeited
or
waived."
prior
set
first
parry
of
appeals,
misses
they
the
were
mark.
subject
During
to
their default.
liability
figure.
(emphasis
added).
Thus,
Biolitec
the
II,
780
Defendants'
F.3d
"expired
at
429
order"
the incentive and the opportunity to raise that issue with this
Court and failed to do so.1
Defendants'
equally unavailing.
second,
"jurisdictional"
argument
is
"[c]ourts--including
[the
Supreme
The problem is
Court]--have
sometimes
- 11 -
U.S.
rulings"
154,
can
161
(2010).
confuse
Such
the
"drive-by
distinction
jurisdictional
between
"true
of
action."
Id;
("Subject
matter
sometimes
erroneously
see
also
jurisdiction
Arbaugh,
in
conflated
546
U.S.
federal-question
with
plaintiff's
at
cases
need
511
is
and
curb
this
practice,
the
Supreme
Court
has
Courts (and
proceed
with
caution
Id.
and
take
care
- 12 -
not
to
indulge
any
The
one.
question
of
contempt
jurisdiction
is
complex
order contempt and the merits of that court's contempt order may
be difficult to discern at times, Defendants' argument fails to
qualify as jurisdictional under any fair reading of the law.
The Supreme Court has explained that "'[j]urisdiction'
refers to 'a court's adjudicatory authority.'
Accordingly, the
the
persons
authority."
(personal
jurisdiction)'
implicating
that
also
Bowles
v.
Russell,
551
U.S.
205,
212-13
(2007);
this
premise,
Defendants'
argument
would
contempt
are
between
the
original
parties
and
are
Parker v.
United States, 153 F.2d 66, 70 (1st Cir. 1946) (emphasis added);
see also Ramos Colon v. U.S. Atty. for Dist. of P.R., 576 F.2d
1,
(1st
Cir.
1978)
("Strictly
remedial
action,
civil
other
words,
the
court's
jurisdiction
to
impose
civil contempt would run concurrent with the court's subjectmatter jurisdiction over the action.
534 F.2d 1115, 1121 (5th Cir. 1976) ("[A]ll courts . . . have
inherent power, within certain limits, to control the conduct of
- 14 -
power
demonstrate
are
proper.").
the
elements
Although
of
civil
movant
would
contempt,
such
need
as
to
the
would
mark
the
proper
exercise
of
the
contempt
of
the
federal
courts'
authority
over
cases.
In
201
(1968);
Anderson
v.
Dunn,
19
U.S.
204,
227
(1821)
United
existence
States
were
called
into
and
invested
with
contempt] power."
it
would
seem
that
it
must
possess
civil
contempt
trouble
arises
in
attempting
to
categorize
the
With
including
disobedience
to
the
court's
"lawful
writ,
See Robinson, 86
The question is
- 16 -
United States, 350 U.S. 399, 405 (1956) ("We see no reason why
the category of 'officers' subject to summary jurisdiction of a
court under 401(2) should be expanded beyond the group of
persons
who
serve
as
conventional
court
the
Supreme
Court
vacated
officers
and
are
Indeed, in Ex parte
contempt
order
that
disbarred the contemnor, and the Court stated that "the question
. . . [was] not whether the court erred, but whether it had any
jurisdiction
contempt."
to
disbar
[the
86 U.S. at 511.
contemnor]
for
the
alleged
to
that
rule,
statute
- 17 -
will
only
And, in rare
be
"ranked
as
[does]
'speak
'jurisdictional'
Court's
in
jurisdictional
label."
"unrefined
Id.
at
terms'
168.
dispositions"
of
even
Any
of
absent
the
jurisdiction
Supreme
"should
be
court
ha[s]
authority
to
adjudicate
[a]
claim."
Arbaugh, 546 U.S. at 511 (quoting Steel Co., 523 U.S. at 91).
Here,
the
statute
does
not
speak
in
explicitly
As such, it might be
Defendants'
appeal
would
fail
to
qualify
as
- 18 -
violation
sanctions
of
fall
lawful
order)
within
the
and
that
category
the
of
court's
sanctions
But this is
sanction).
Such
challenge
does
not
become
Shillitani
v.
United
States,
for
example,
witness
was
- 19 -
Id. at 371.
Id. at 371-72.
See
also FTC v. Verity Int'l, Ltd., 443 F.3d 48, 70 (2d Cir. 2006)
("The district court . . . no longer requires [the defendants]
to do the act that the contempt sanctions coerce them do to.
Thus, the sanctions must be vacated."); Consol. Rail Corp. v.
Yashinsky, 170 F.3d 591, 596 (6th Cir. 1999) (holding that,
because the coercive order "no longer serves a purpose," the
contumacious party was "no longer . . . in active contempt of
court for refusing to comply").
order,
whether
coercion
continues
to
serve
its
purpose,
and
whether the party retains the ability to purge5 are all questions
about the merits of the court's contempt decision.
In
fact,
the
only
case
cited
by
Defendants
that
- 20 -
our
view.
In
EEOC
v.
Local
40,
Int'l
Ass'n
of
Bridge,
In that
Id.
The
Opportunity
Commission
EEOC
and
intervention,
the
parties
continuing jurisdiction."
("EEOC")
Id. at 81.
for
purpose
of
were
"released
the
from
decree
the
was
court's
an
the
Id.
moved
Id. at
Id. at 78.
In this case,
situation
affirmed,
and
within
the
Defendants
context
now
of
raise
- 21 -
an
a
ongoing
belated
case.
We
challenge
implicitly
foreclosed
by
our
prior
decisions.
In
such
Conclusion
For the
- 22 -
- 23 -