11-FM DISTRICT OF COLUMBIA COURT OF APPEALS MATTHEW LEFANDE CAROLYN MISCHE-HOEGES

Transcription

1 11-FM DISTRICT OF COLUMBIA COURT OF APPEALS MATTHEW LEFANDE v. CAROLYN MISCHE-HOEGES Respondent-Appellant Petitioner-Appellee OPPOSITION TO MOTION TO DISMISS APPEAL OR TO STRIKE APPELANT S BRIEF AND APPENDIX OPPOSITION TO MOTION TO STAY BRIEFING Matthew August LeFande 4585 North 25 th Road Arlington VA Tel: (202) Fax: (202) matt@lefande.com Appellant, pro se

2 Introduction Appellant Matthew LeFande hereby opposes Appellee Carolyn Mische-Hoeges s Motions to Dismiss Appeal and to Stay Briefing. Mische-Hoeges s present Motion to Dismiss Appeal amounts to a backhanded untimely Motion for Summary Affirmance, filed after the Appellant has already filed his Opening Brief and essentially arguing the merits of LeFande s Appeal where such argument should otherwise be now presented in the Appellee s Opposition Brief. The Appellee s merits as argued are of course, meritless. LeFande may properly challenge the Superior Court s jurisdiction at any time, including upon appeal. Those sections of LeFande s Appeal Brief which the Appellee finds offensive are indeed, collateral attacks upon jurisdiction and challenges to the Constitutionality of the Superior Court s Order. If such defects render the September 21, 2010 Consent Order void, then this Court must vacate that Order. The Appellee s complaints regarding LeFande s production of the Joint Appendix are equally meritless. LeFande is prohibited from including documents which are not part of the record on appeal, regardless of the Appellee s designation thereof. While this Court s Rule 13 affords the Court the ability to involuntarily dismiss LeFande s appeal for a violation of a Rule of this Court or where otherwise warranted, the record amply demonstrates that LeFande has acted properly and in conformance with Rules of this Court and that no such dismissal is otherwise warranted. Statement of Facts Carolyn Mische-Hoeges is a District of Columbia Metropolitan Police Officer. LeFande is a former member of the Metropolitan Police Department, see LeFande v. 1

3 District of Columbia, 612 F.3d 1155, and n.1 (D.C. Cir. 2010), a former prosecutor for the District of Columbia, a Special Assistant Corporation Counsel, and now a full time practicing attorney admitted to practice before the United States Supreme Court, the United States Court of Appeals for the Fourth Circuit, District of Columbia Circuit and the Federal Circuit, as well as before this Court. LeFande also has been for more than five years, and is presently, a firearms instructor for the Virginia Department of Criminal Justice Services, as well as a Virginia armed and uniformed law enforcement officer, a Special Conservator of the Peace. LeFande also holds a United States Government security clearance. A substantial part of LeFande s legal business involves acting as cleared counsel for U.S. Government contractors. From August 2009 to April 2010, Mische-Hoeges was in a relationship with LeFande and lived in his home in Arlington, Virginia for most of that period. During the time Mische-Hoeges lived in LeFande s home, she spoke of her previous boyfriend, Juan Miguel (John) Parodi, being abusive and violent towards her during their relationship. Mische-Hoeges described to LeFande instances of arguments between them which sometimes involved throwing furniture. On several occasions, LeFande stated that given his status as an attorney, a firearms instructor and a law enforcement officer, any allegation of a domestic incident of that sort would be extremely harmful to his career. In a telephone text message to LeFande s roommate on December 16, 2009, Mische-Hoeges referred to these statements. Appellant s Ex. P. On February 17, 2010, Mische-Hoeges sustained an injury to her knee while skiing in Pennsylvania with LeFande. On the drive home, Mische-Hoeges stated to 2

4 LeFande that she would just make it POD 1 as she needed more time to finish her master s thesis at George Mason University. On February 24, 2010, while in a conversation with another MPD officer who had recently retired on disability, Mische- Hoeges stated that she would make my second attempt to stick it to the man. Appellant s Ex. Q. Seven hours later, while on duty for the first time since her ski accident, Mische-Hoeges claimed to police officials that she spontaneously injured her knee while running down the street to assist another officer. There were no witnesses to the alleged incident. For the remainder of February and throughout March, Mische-Hoeges remained in LeFande s house and worked on her thesis full time. In early April of 2010, Mische- Hoeges and LeFande began arguing about Mische-Hoeges s lengthy leave of absence from the Metropolitan Police Department. Mische-Hoeges moved out of LeFande s house on April 19, In the process of moving out, Mische-Hoeges implicitly threatened LeFande and warned him not to talk about her injury claims. On May 1, 2010 made a reference to her previous threat, stating on LeFande s Facebook page, Wrongful arrest is a normal part of daily life Appellant s Ex. R [ellipsis in original]. On May 31, 2010, Mische-Hoeges made a complaint to the City of Alexandria Police Department, claiming LeFande was stalking her. Appellant s Ex. A. 2 In support of this allegation, Mische-Hoeges only claimed that LeFande had called her a whore in 1 POD refers to performance of duty [injury] in the Metropolitan Police Department. Ordinarily, an officer who sustains an injury while not at work would lose sick leave for any absence attributed to a non-pod injury, where an officer who sustains an injury in the performance of police duties is not charged sick leave and their salary, reimbursed as a disability benefit, becomes tax free during their absence. See Pierce v. D.C. Police & Firefighters Ret. & Relief Bd., 882 A.2d 199 (D.C. 2005). 3

5 a single exchange. Id. at 1. Mische-Hoeges admitted to the Alexandria Police that she had no fear of LeFande. Id. at 2. Mische-Hoeges attempted to improperly influence the Alexandria Police investigation by having a Metropolitan Police Department Sergeant call the Alexandria Police supervisor overseeing the investigation. Nevertheless, Mische- Hoeges was denied a warrant and a protection order by the Alexandria magistrate and the Alexandria Police Department reported the case as unfounded. Id. at 1. On June 22, 2010, Mische-Hoeges made the same allegations to the Arlington County Police Department and was again denied a warrant and a protection order. 3 On that date, Mische-Hoeges applied for and received a Temporary Protection Order from the District of Columbia Superior Court, again falsely claiming LeFande was stalking her. J.A. 8. Mische-Hoeges offered no allegation that LeFande had ever threatened her in any manner. Mische-Hoeges made no allegation that LeFande had assaulted her. Mische-Hoeges made no allegation LeFande had ever tried to approach or otherwise be physically proximate to her since the end of their relationship. 4 During a hearing following Mische-Hoege s application, she alleged to the Superior Court that LeFande had sent a video of her to persons in Italy, but then admitted that she had no evidentiary basis, or even personal knowledge, in support of the allegation. 2 Appellant s Exhibits A-P were presented to this Court with his Motion to Stay filed March 2, The Arlington County Police Department did not respond to LeFande s subpoena dues tecum prior to the dismissal of the criminal case and he does not have a copy of this report. 4 Mische-Hoeges s petition did include allegations that LeFande had sent her flowers and a book. J.A. 8. 4

6 J.A. 17. So to, to clarify I cannot, I can t show conclusively that it came from him at this time but he s the only person I, he s the only other person who could have access to that video and I don t know how he got access to it but Despite the complete lack of any allegation of a criminal offense committed or threatened by LeFande, the Superior Court granted Mische-Hoeges a Temporary Protection Order. J.A. 24. Along with the ordinary terms of the Temporary Protection Order, an additional term was included that LeFande not contact Vadim Goremykin, a person not a party to the action and not in any way familially related to Mische-Hoeges. Id. No service of process of the Temporary Protection Order was ever made upon LeFande. Also on June 22, 2010, Mische-Hoeges went to the Metropolitan Police Department First District Headquarters, where she is assigned as a police officer, and convinced several of her friends and co-workers to take yet another police report and again apply for a warrant on her behalf. Appellant s Ex. C and D. Within this police report, Mische-Hoeges used the report numbers from the Alexandria and Arlington County police reports to falsely claim a history of domestic violence between her and LeFande. Appellant s Ex. C. 5 Despite the absence of any allegation constituting an offense under District of Columbia law within the sole affidavit in support, the Superior Court issued a warrant for LeFande s arrest on that date. Appellant s Ex. D. Immediately thereafter, Mische- 5 The Arlington Police Department incorporates the date of the report into its report numbers. The report number used by Mische-Hoeges to demonstrate a prior history of domestic violence was evidently generated on June 22, 2010 ( ), the same date as her application for the arrest warrant in the District of Columbia. 5

7 Hoeges began reporting to her supervisors and to the MPD Intelligence Division that LeFande was armed and dangerous. Several wanted posters with photographs and descriptions of LeFande, including posters personally produced by Mische-Hoeges were distributed via and by printed copy to police stations throughout the Washington Metropolitan area. Nearly every single friend and associate known to LeFande within the Metropolitan Police Department, including many of his legal clients, became aware of this arrest warrant. On July 2, 2010, LeFande s attorney moved for a continuance of Mische- Hoeges s civil protection order hearing due to a scheduling conflict. J.A. 26. On July 6, 2010, Superior Court Judge Jose Lopez entered a default Civil Protection Order against LeFande, despite his attorney s request for a continuance due to the conflict. J.A. 35. In addition to the ordinary terms of the Civil Protection Order, Judge Lopez added that LeFande could not contact Goremykin, or Parodi. J.A. 36. The Court further prohibited LeFande from send[ing] s or text messages about petitioner to anyone Id. [all capital letters in original]. This Order was vacated on July 29, On the morning of July 8, 2010, after a couple previous failed attempts to do so, 6 LeFande turned himself in to the United States Marshals Service at Superior Court. Despite presenting himself to the Marshals early in the morning at Superior Court, LeFande was transported back to First District Headquarters and intentionally held there until he missed the cut off time for his case to be heard that day. During this time, despite LeFande being a known law enforcement officer, he was handcuffed to other 6 At one point prior to his arrest, LeFande appeared in arraignment court with his attorney and announced he was wanted. An Assistant U.S. Attorney advised him they were too busy that day to deal with him and suggest that he try again another day. 6

8 prisoners, held in a jail cell with another prisoner, and left in an un-airconditioned transport van for over an hour in the middle of the day with outdoor temperatures reaching 95 degrees F. LeFande was fingerprinted, photographed and booked at the Metropolitan Police Department Central Cell Block and then left in a small cell alone for 22 hours. The following day, LeFande was transported to the Marshals Cell Block at Superior Court and left in a cell alone for another six hours without food or drink. At approximately 4:30pm on July 9, 2010, LeFande was presented to the Court in leg irons, handcuffs and a belly chain. LeFande was then released on personal recognizance. On July 19, 2010, LeFande, by counsel, moved for leave to conduct discovery in the civil protection case. J.A. 62. LeFande s motion was denied in its entirety on July 23, J.A. 71. LeFande renewed his motion for leave to conduct discovery on August 2, J.A LeFande s renewed motion was again denied in its entirety on August 11, J.A On August 16, 2010, LeFande, by counsel, moved to limit the testimony of a foreign witness never present in the United States for any of the events alleged. J.A LeFande s Motion in Limine was denied in its entirety on August 31, J.A On September 10, 2010, the United States Attorney s Office formally abandoned prosecution of the criminal charges against LeFande. Appellee s Ex. E at 10. As of September 21, 2010, LeFande was still subject to the Temporary Restraining Order issued originally on June 22, Despite the protestations of LeFande s counsel, see J.A , he had been subject to restraining orders now for a total of 91 days without being afforded any hearing on the merits of Mische-Hoeges s allegations, despite District of Columbia law only permitting a total of 28 days duration 7

9 for a Temporary Restraining Order. Thomas v. United States, 934 A.2d 389, 392 (D.C. 2007). As a result of the unlawful and prolonged existence of the Temporary Restraining Order, LeFande s Virginia handgun permit was revoked, his registration as a Special Conservator of the Peace was not renewed by the Virginia Department of Criminal Justice Services, and he had to abandon applications for reappointment as a Conservator in two jurisdictions. Faced with a blatantly hostile Court which issued the Temporary Restraining Order without evidentiary foundation, refused LeFande any opportunity to obtain evidence in his defense, and illegally perpetuated the Temporary Restraining Order in a manner that was causing vast irreparable harm to his reputation and career, LeFande had no choice but to accept the Consent Order of September 21, Following the hearing on that date, LeFande repeatedly requested a signed copy of the Order from the Clerk of the Court. The Clerk of the Court informed LeFande on each occasion that no order had been entered. Neither LeFande nor his attorney has ever been served with a copy of the signed Consent Order. On November 1, 2010, LeFande, pro se, filed a civil suit against Mische-Hoeges in United States District Court alleging false arrest, false imprisonment, malicious prosecution, abuse of process, defamation and deprivation of his civil rights under color of state authority. Appellant s Ex. I. On November 4, 2010, LeFande received notice that Mische-Hoeges intended to appear as a witness for the Fraternal Order of Police Metropolitan Police Department Labor Committee (FOPMPDLC) at an evidentiary hearing before the Public Employee Relations Board (PERB) in which LeFande is representing the former Chairman of the 8

10 FOPMPDLC as his attorney. Appellant s Ex. J. The proceedings before PERB involve a claim for reimbursement of some $244, in attorney s fees by the former Chairman for defense of a lawsuit which was initiated against him in Mische-Hoeges was not a party to the proceedings and LeFande has no information as to any reason why she would need to be present for the hearing. On that date, LeFande notified the counsel for the FOPMPDLC in the PERB case of the pending litigation between LeFande and Mische-Hoeges. On November 5, 2010, counsel for the FOPMPDLC moved for a continuance of the PERB hearing. Appellant s Ex. K. Attached to the motion was an executed copy of this Court s September 21, 2010 Consent Order. This was the first time that LeFande or his attorney learned that the order had been entered. Counsel for the Respondent in the PERB case expressed concern for the ability of LeFande to attend the PERB hearing if Mische-Hoeges was also in attendance. Id. Based on Mische-Hoeges s conduct, on November 8, 2010, LeFande moved to vacate, alter or amend the Consent Order under the Superior Court s Civil Rule 60(b). Despite the evidence of Mische-Hoeges s fraudulent intent and bad faith in seeking a restraining order against LeFande, on December 20, 2010, Judge Lopez refused to vacate the Consent Order, and did so without making any requisite inquiry into his allegations. J.A On November 23, 2010, Mische-Hoeges, now represented by her present attorney, filed a Fed. R. Civ. P. 12(b)(6) Motion to Dismiss in LeFande s District Court case against Mische-Hoeges. Within the Motion to Dismiss, attorney Neal made no substantive argument that Mische-Hoeges s allegations constituted the elements of an 9

11 offense under District of Columbia law. Instead, he argued solely that because the warrant application was approved by Mische-Hoeges s friends and co-workers in the police department and the United States Attorney s Office, and because it was approved by a retired judge sitting in chambers (without a hearing or any further evidence in support), it was good and proper. In the course of his non-sequitur argument, Neal made repeated improper, offensive and insulting statements which amounted to personal attacks upon LeFande with no factual foundation whatsoever. Mische-Hoeges told both the Alexandria and Arlington Police Departments that LeFande had sent threatening s to her and her new boyfriend and that LeFande had called her new boyfriend. [Compl.], 29, 43. It is these same threats and other misconduct which led to LeFande s arrest and prosecution in the District of Columbia. More specifically, this Affidavit detailed LeFande s many threatening s Appellant s Ex. W at 2. Such allegations were false. Mische-Hoeges never made any claim that any was threatening and the Complaint paragraphs referenced in the motion made no such allegation. Mische-Hoeges s affidavit made no allegation that any was threatening. J.A. 8. Attorney Neal s allegations in this regard had no basis in fact and were false statements of fact to the District Court, in violation of Rules of Professional Conduct 3.1 and 3.3(a). These allegations were repeated on page 4 of the memorandum. At page nine of the memorandum, Neal called LeFande a predator. At page sixteen, Neal called LeFande a dangerous predator. Such vituperative comments were unsupported by any factual allegation within the record, and served no purpose other than to harass and intimidate LeFande from pursuing his claims in the District Court. 10

12 LeFande made a timely Notice of Appeal of the Superior Court s December 20, 2010 Order on January 3, J.A On January 6, 2011, Neal wrote a letter to LeFande demanding that he return a computer flash drive which Mische-Hoeges had abandoned at LeFande s home in April of Appellant s Ex. S. Within this letter, Neal claimed, without any factual basis in support, that Mische-Hoeges did not abandon the flash drive at LeFande s home. Neal went on to claim, As you have been repeatedly advised, you do not have authorization to access the contents of the flash-drive and particularly Ms. Mische-Hoeges s. In doing so, you are violating federal and state law. I again demand that you cease and desist from accessing the contents of the flash-drive and that you immediately return it (and any electronic or hard copies you have made) to me. Attorney Neal implicitly threatened LeFande with criminal prosecution in order to obtain property to which his client otherwise has no lawful claim thereto, and which his client suffers an apparent disadvantage in civil litigation by LeFande s possession thereof. Such threats of criminal prosecution solely to obtain an advantage in a civil matter violate Rule of Professional Conduct 8.4(g). Neal s claims of violations of federal and state law were false, without any basis and he offered no citation in support thereof. His false statements of fact and law to a third person were violations of Rule of Professional Conduct 4.1(a). Neal s insistence that LeFande return his own property to Neal under threat of criminal prosecution amounted to improper legal advice to an unrepresented party where LeFande s interests were in direct conflict with those of Mische-Hoeges, in violation of Rule of Professional Conduct 4.3(a)(1). LeFande reported Neal s conduct to Bar Counsel on January 18, 2011, only the second time he had reported another attorney for misconduct in his nine years of litigation experience. 11

13 On February 19, 2011, attorney Neal filed a 225 page Motion to Intervene on behalf of Mische-Hoeges in LeFande s dismissed criminal case, 2010 DVM Nowhere within the Motion did Neal offer any cogent legal argument that demonstrated that Mische-Hoeges had any legal standing to intervene in LeFande s dismissed criminal case. Nor did Neal make any legal argument that refuted LeFande s well-annotated argument demonstrating that he was arrested and prosecuted absent any probable cause. Instead, Neal used the Motion to Intervene to restate the same false conclusory allegations and inappropriate name calling he made in his Motion to Dismiss before the District Court, and attached the Motion as an exhibit in support. On February 25, 2011, LeFande filed his Motion to Vacate the Void Consent Order. On March 11, 2011, Mische-Hoeges s prior attorney, Ryan Witkowski, served LeFande with a Rule 11 Motion for Sanctions. Appellant s Ex. T. Nowhere within the Rule 11 Motion was there any cogent argument which demonstrated that LeFande s bases for his Motion to Vacate the Void Consent Order were legally or factually incorrect. On March 22, 2011, the United States Attorney s Office finally filed a longawaited and rather bizarre Opposition to LeFande s Motion to Seal the records in his dismissed criminal case. Appellant s Ex. U. The Motion consisted of a pat recital of the factual allegations in LeFande s criminal case, which LeFande had expressly not contested for the purposes of his Motion to Seal, and no legal argument whatsoever refuting LeFande s contention that such factual allegations did not amount to an offense under District of Columbia law. On April 6, 2011, Witkowski filed an Opposition to LeFande s Motion to Vacate Void Consent Order. Witkowski failed to address any of LeFande s substantive 12

14 argument within his Opposition. Instead, Witkowski simply repeated Neal s unfounded and inappropriate conclusory allegations from Neal s District Court Motion to Dismiss and again attached the memorandum from the Motion to his own Motion and cited to it as if it were controlling authority. 7 On the following day, the date service of the Appellant s designations of the record were due in this case, Witkowski announced he was withdrawing from the case. Witkowski did not respond to LeFande s telephone calls regarding the Appellee s designations of the record on appeal. Thereafter, LeFande made calls to Neal regarding the designations. On April 18, 2011, Neal requested an extension of filing dates of the Appellant s Brief and Joint Appendix so that he would have additional time to make his designations of the record. LeFande consented and Neal filed a Motion with this Court, which the Court later granted. Neal s designations comprised of nearly every filing in the lower court. Appellee s Ex. I at 3. LeFande reported that he was unable to locate or identify certain filings mentioned on the docket and asked Neal to produce them. Neal was also unable to do so and consented to their omission from the Appendix. Appellant s Ex. V. However, Neal also designated documents which were not part of the record on appeal, documents which were filed with the Superior Court after LeFande s Notice of Appeal and which the Superior Court rejected, stating it had no further jurisdiction over the matter. Appellee s Ex. F. LeFande properly refused to include them in the Appendix. 7 This exhibit is one of the items Neal now claims was improperly not included in the appendix, though it was filed after the Notice of Appeal was filed in this Appeal and certainly is not part of the record on appeal. 13

15 Argument 1. Attorney Neal s present complaints regarding LeFande s collateral attack upon the jurisdiction of the Superior Court are unwarranted and unsupported by the law. Attorney Neal simultaneously lashes out at LeFande for raising jurisdictional issues in this appeal which he claims were not preserved for appeal with the Superior Court while at the same time, chastising LeFande (and seeking sanctions) in the Superior Court for LeFande s subsequent filing of an independent Civil Rule 60(b)(4) Motion raising the same jurisdictional issues. He is of course, wrong on both counts. It is undisputed that LeFande made a Rule 60(b) Motion with the Superior Court on November 8, 2010, J.A. 200, and that he made a timely Notice of Appeal of the denial thereof, establishing the jurisdiction of this Court. J.A With regards to the error of the Superior Court in denying his Rule 60(b) Motion, LeFande s complaint therein is well founded. LeFande raised a cogent and well documented issue with the Court, that Mische-Hoeges had abused the Civil Protection Order process for a fraudulent and improper purpose and that her improper employment of the Consent Order subsequent to its issuance was causing LeFande immediate and irreparable harm. 8 The Superior Court completely failed to make any kind of meaningful inquiry into LeFande s allegations. This alone remains reversible error. In order for this court to meaningfully review the court s exercise of discretion, unless the record otherwise indicates the basis for the trial court s ruling, the trial court must make findings of fact and explain its reason(s) for either granting or denying a Rule 60(b) motion requesting relief for excusable neglect or good cause. See Johnson v. Lustine Realty Co., Inc., 640 A.2d 708, 709 (D.C. 1994) 8 As a result of Mische-Hoeges s improper interjection into LeFande s PERB proceedings regarding LeFande s $244,000 claim against the MPD Labor Committee, PERB cancelled the evidentiary hearing which was scheduled for November 9, 2010 and it has never been rescheduled. 14

16 (holding that trial court abused its discretion by not making the necessary inquiry and in failing to address two factors that bore directly on the Rule 60(b) motion); see also Reid v. District of Columbia, 634 A.2d 423, 425 (D.C. 1993) ( A review of the record indicates that in denying appellants motion..., the trial court did not consider the factors enumerated in either Rule 60(b)(1) or in Starling. ). In this case, the court s Order summarily denied appellants Rule 60(b) motion, without any indication of how the court considered the facts here Minor v. Springfield Baptist Church, 964 A.2d 205 (D.C. 2009). Attendant to this claim in the course of his Appeal, LeFande remains fully entitled to challenge the jurisdiction of the Court in its entry of any order and the constitutional propriety of such an order. Generally, an order issued by a court without jurisdiction over the subject matter ruled upon can be challenged at any time. Mayo v. Mayo, 508 A.2d 114, 115 (D.C. 1986) (citing Wade v. Union Storage & Transfer Co., 58 A.2d 493, 496 (D.C. 1948); Fishel v. Kite, 101 F.2d 685, 687 (D.C. Cir. 1938)) [footnote omitted]. Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868). A void judgment is a legal nullity. See BLACK S LAW DICTIONARY 1822 (3d ed. 1933); see also id., at 1709 (9 th ed. 2009). Although the term void describes a result, rather than the conditions that render a judgment unenforceable, it suffices to say that a void judgment is one so affected by a fundamental infirmity that the infirmity may be raised even after the judgment becomes final. See RESTATEMENT (Second) OF JUDGMENTS 22 (1980); see generally id., 12. United Student Aid Funds, Inc. v. Espinosa, 130 S. Ct. 1367, 1377 (2010). A fundamental defect in jurisdiction cannot be cured by consent of the parties, including by any mechanism of the Consent Order. LeFande simply could not consent to jurisdiction where none existed otherwise. 15

17 In a civil action, matters properly subject to stipulation by the parties are myriad so long as the resulting agreement affects neither the court s jurisdiction -- that is, does not attempt to create jurisdiction where there would otherwise be none -- nor the court s due order of business or convenience. Goozh v. Capitol Souvenir Co., 462 A.2d 1140, 1142 (D.C. 1983) (quoting Kardibin v. Associated Hardware, 426 A.2d 649, 655 (Pa. Super. 1981) and citing Zvonik v. Zvonik, 435 A.2d 1236 (Pa. Super. 1981); Foote v. Maryland Casualty Co., 186 A.2d 255 (Pa. 1962)); Brown Shoe Co. v. United States, 370 U.S. 294, 305 (1962) ( the mere consent of the parties to the Court s consideration and decision of the case cannot, by itself, confer jurisdiction on the Court, citing American Fire & Casualty Co. v. Finn, 341 U.S. 6, 18 (1951); Capron v. Van Noorden, 6 U.S. (2 Cranch) 126, 127 (1804)). Particularly profound in the present case is the fact that LeFande was compelled to appear before the Superior Court under threat of arrest on six occasions over the course of three months. For the entirety of that time, LeFande suffered Court-imposed limitations upon his speech, his association, his travel and his ability to carry firearms. Such infringements remained in apparent perpetuity, regardless of the long-expired limitations otherwise set forth in the law, until LeFande finally acquiesced to the Consent Order. If the initial jurisdiction of the Superior Court was non-existent as LeFande contends, and Mische-Hoeges has never coherently argued otherwise, 9 the entirety of the process which LeFande was compelled to submit to was a profound miscarriage of justice. Mische-Hoeges s attorney Neal now demands that this Court eschew its fundamental threshold inquiry, did the Superior Court have jurisdiction to enter the 9 The Appellee s present conclusory argument in favor of jurisdiction again completely ignores LeFande s repeated demonstration that no criminal offense was alleged at the time of the entry of the Temporary Restraining Order. Appellee s Mot. at

18 Consent Order LeFande now complains of? This Court cannot forego this inquiry under any circumstances. See e.g., Brown Shoe Co., supra; Craig v. Ont. Corp., 543 F.3d 872, 877 (7 th Cir. 2008). See also D.C. v. Stokes, 785 A.2d 666, 670 (D.C. 2001) ( The question whether the Superior Court has subject matter jurisdiction over a case presents a narrow question of law, which we review de novo. Martin v. District of Columbia Courts, 753 A.2d 987, 991 (D.C. 2000) (footnote omitted). We therefore owe no deference to the trial court s jurisdictional ruling. ) Of course, as Mische-Hoeges s attorneys point out, LeFande has also made a subsequent Rule 60(b)(4) Motion attacking the judgment as void. Appellee s Ex. C. As this Court properly set forth just last month, this was the appropriate mechanism for LeFande to employ for the reasons stated therein. Because Mazza s appeal was time barred, he should have filed a Rule 60 (b)(4) motion for relief from judgment in order to attack the judgment as void. See Threatt v. Winston, 907 A.2d 780, 783 (D.C. 2006). However, Mazza did not file such a motion, and instead uses his motion for leave to amend his complaint or appeal the prior judgment as a vehicle to assert that the judgment was void. Even if we were to construe Mazza s motion as a Rule 60 (b)(4) motion, a judgment is void only if the court that entered it had no jurisdiction over the parties or the subject matter or if the court s action was otherwise so arbitrary as to violate due process of law. Kammerman v. Kammerman, 543 A.2d 794, 799 (D.C. 1988) (citations omitted). Mazza v. Housecraft LLC, 2011 D.C. App. LEXIS 215, (D.C. Apr. 28, 2011). See also Sorbo v. UPS, 432 F.3d 1169, (10 th Cir. 2005). Nevertheless, Attorney Neal now demands sanctions from LeFande for this filing. Appellant s Ex. T. However, because LeFande has properly employed his Rule 60(b)(4) Motion to preserve these jurisdictional issues for appeal, and having given the Superior Court the opportunity to remedy them summarily, it does not in any way preclude this Court from deciding them in the context of the present appeal. Indeed, again as Mische-Hoeges s 17

19 attorneys point out, LeFande subsequently filed a Rule 59(e) Motion suggesting to the Superior Court that it could employ the procedure set forth in Fobian v. Storage Tech. Corp., 164 F.3d 887, (4 th Cir. 1999) and permit LeFande to seek a temporary remand if the Court was inclined to grant his motion. Appellee s Ex. G. Mische- Hoeges s subsequent vociferous opposition to that Motion, together of course with her present Motions before this Court, demonstrate that Mische-Hoeges and her attorneys are not at all interested in an expedient resolution of the matter, but instead are solely intent on further depriving LeFande of any judicial review of the complaints enumerated within this Appeal LeFande properly excluded from the Appendix documents which are not part of the record on appeal. As described with particularity in the factual recitals above, LeFande afforded Mische-Hoeges a substantial amount of additional time to make her designations upon the record after her new attorneys made their notice of appearance only three weeks prior to the due date of the Opening Brief. LeFande nevertheless consented to a two-week enlargement of the briefing schedule in this case while Mische-Hoeges s attorneys put together their designations. LeFande was rewarded for his consent with a particularly burdensome and improper designation of the record, in evident violation of this Court s 10 Of course, the two cases provided by Mische-Hoeges in support, Smith v. Canada, 305 A.2d 521, 522 (D.C. 1973) and the incorrectly cited Harris v. Harris, 304 A.2d 635, 637 (D.C. 1973), have absolutely nothing to do with a Rule 60(b)(4) attack upon a judgment void for lack of jurisdiction. See United Student Aid Funds, Inc. v. Espinosa, 130 S. Ct. 1367, 1377 (2010). A jurisdictional defect cannot be waived by failing to raise the issue with the trial court and the cases cited by Mische-Hoeges for that proposition are also inapplicable. 18

20 Rule 30(b)(1). Appellee s Ex. I at 3. While the entirety of this matter can now be disposed of simply with an examination of the record at the time of the Superior Court s improper entry of the initial Temporary Restraining Order in June of 2010, Mische- Hoeges s attorneys nevertheless endeavored to designate nearly every single document in the record and several documents which are not part of the record. Id. As LeFande s exhibits demonstrate above, he identified to Attorney Neal certain items he did not have and could not produce and asked for assistance of Attorney Neal therein. Appellant s Ex. V shows that Attorney Neal specifically consented to the omission of documents that were in the possession of neither party. 11 However, Attorney Neal now protests that LeFande did not include designated documents relating to the filing of LeFande s subsequent Rule 60(b)(4) Motion after LeFand noticed the instant appeal. Of course, these documents are not part of the record on appeal and LeFande was infirm from including them in the Joint Appendix. Because the 60(b) motion may be separately considered pending appeal, a denial of such a motion while the appeal of the judgment is pending, is itself separately appealable. See Commonwealth of Puerto Rico v. SS ZOE COLOCOTRONI, 601 F.2d 39 (1 st Cir. 1979); Washington v. Board of Education, 498 F.2d 11 (7th Cir. 1974). In a case, such as the Ingraham case, where the 60(b) motion is filed after the appeal is noticed, an appeal from the ruling on that motion must be separately taken if the issue raised in that motion is to be preserved for appeal. Ingraham v. United States, 808 F.2d 1075, (5 th Cir. 1987). Accord McKethan v. Texas Farm Bureau, 996 F.2d 734, 744 (5 th Cir. 1993). On appeal, Modrak requests that we consider additional evidence that was not presented to the district court either at trial or in his post-trial motion for judgment as a matter of law. Although Modrak did submit this evidence in a Fed. R. Civ. P. 11 LeFande is at a loss as to why Neal would insist upon designating a document he now admits didn t possess and apparently never saw. It becomes evident that Neal was intent on making the production of the appendix as unnecessarily burdensome as possible for LeFande, in violation of this Court s Rule 30(b)(1). 19

21 60(b) motion for reconsideration, that motion was filed after his appeal was noted in this case and, thus, is not properly considered on appeal. Alexander v. Modrak, 2 Fed. Appx. 298, 299 (4 th Cir. 2001) (unpublished). See also Sorbo, supra; James v. Superior Court, 287 Fed. Appx. 140, 142 (3d Cir. 2008) (unpublished). See also D.C. CT. OF APP. R. 30(b)(1) (referring to designations of the record ). LeFande s Rule 60(b)(4) Motion and Mische-Hoeges s prolix Opposition thereto were filed after LeFande s Notice of Appeal for the instant Appeal. Therefore, they were not part of the record on appeal and LeFande was not permitted to include them in the Joint Appendix, regardless of Attorney Neal s designations thereof. Indeed, the Superior Court refused to even consider the documents as it insisted that it no longer had jurisdiction over the matter once noticed for appeal. Appellee s Ex. F. It is unclear that, given the Superior Court s present denial of its jurisdiction, the documents are even a part of the Superior Court s record notwithstanding the appeal. Conclusion For these reasons and for such other reasons as the Court finds to be good and sufficient cause, Mische-Hoeges s Motion to Dismiss Appeal should be DENIED. As there is no merit to this Motion, her Motion to Stay Briefing should be DENIED as well. Respectfully submitted, this 20 th day of May, 2011, Matthew August LeFande 4585 North 25 th Road Arlington VA Tel: (202) Fax: (202) matt@lefande.com Appellant, pro se 20

22 CERTIFICATE OF SERVICE I HEREBY CERTIFY that two copies of the foregoing Opposition and Exhibits were served via United States Postal Service First Class Mail, postage prepaid, to the Appellee s counsel of record at the following address, this 20 th day of May, Stephen Neal DiMuroGinsberg, P.C. 908 King Street, Suite 200 Alexandria, VA Matthew LeFande