North River Insurance v. Stefanou

831 F.2d 484, 9 Fed. R. Serv. 3d 514
CourtCourt of Appeals for the Fourth Circuit
DecidedOctober 16, 1987
DocketNo. 87-2548
StatusPublished
Cited by1 cases

This text of 831 F.2d 484 (North River Insurance v. Stefanou) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
North River Insurance v. Stefanou, 831 F.2d 484, 9 Fed. R. Serv. 3d 514 (4th Cir. 1987).

Opinions

WILKINS, Circuit Judge:

Peter Stefanou appeals from the district court’s entry of judgment on the pleadings for North River Insurance Company, Inc. (North River) after Stefanou refused to respond to the allegations of the complaint, and instead attempted to assert a fifth amendment claim against self-incrimination. We affirm.

I.

North River filed an action for a declaratory judgment seeking rescission of three professional liability insurance policies. Named as defendants were the accounting firm of Frank & Company, P.C. (previously known as Frank, Stefanou & Company); and Stefanou and eight other individuals, all of whom were partners or employees of the firm.1 North River sought rescission of the policies issued to Frank & Company on grounds of misrepresentations in the policy applications. It alleged that Stefanou and a client, Edward Markowitz, had conspired to create more than $500,000,-000.00 in fraudulent tax deductions for investors and thus had misrepresented that they did not know of existing circumstances that might give rise to claims.

In April, 1985 Markowitz pled guilty to federal charges arising from his involvement in the fraudulent tax scheme. In June, 1986 Stefanou pled guilty to charges of income tax evasion, preparing a false tax return in relation to the Markowitz scheme, and preparing a false tax return in another related tax fraud scheme.

In exchange for his plea, Stefanou and Frank & Company received immunity from further prosecution by the United States [486]*486Attorney’s Office for the Southern District of New York for federal criminal violations arising from involvement with certain named companies. They also received immunity from the Department of Justice from any further federal criminal tax prosecutions based on involvement with those companies. The immunity granted did not extend to prosecution in state court nor to prosecution by the Department of Justice for non-tax-related offenses.

All defendants except Stefanou timely filed a joint answer to North River’s complaint. Stefanou responded only by reference in a footnote at the end of the opening sentence of the answer, stating that “[djefendant Peter Stefanou, upon the advice of counsel, respectfully declines to answer the allegations set forth in plaintiff’s complaint on the basis of his constitutional rights.” Stefanou’s fifth amendment claim was addressed to the entire complaint, including allegations of jurisdiction, venue, the existence of Stefanou’s firm and his position with it. Stefanou gave similar responses in the discovery process when requests for admissions were served on him.

North River moved for judgment on the pleadings as to Stefanou. During the hearing on the motion, Stefanou did not seek to amend or otherwise alter his position. Instead, the record reflects that Stefanou continued his refusal to respond to the complaint, even to allegations reciting his guilty plea which was a matter of public record. The district court concluded that the fifth amendment privilege was not properly invoked and granted judgment on the pleadings against Stefanou.

II.

The failure to deny an allegation in a pleading to which a responsive pleading is required constitutes an admission of that allegation. Fed.R.Civ.P. 8(d). However, when properly invoked, the fifth amendment privilege against self-incrimination, which applies to civil proceedings as well as criminal, can avoid the operation of Rule 8(d). The privilege applies not only at trial but also at the pleading stage. In re Sterling-Harris Ford, Inc., 315 F.2d 277 (7th Cir.), cert. denied, 375 U.S. 814, 84 S.Ct. 46, 11 L.Ed.2d 50 (1963). However, the mere “blanket refusal to answer questions does not suffice to raise constitutional questions.” United States v. Carroll, 567 F.2d 955, 957 (10th Cir.1977) (citing United States v. Malnik, 489 F.2d 682, 685 (5th Cir.), cert. denied, 419 U.S. 826, 95 S.Ct. 44, 42 L.Ed.2d 50 (1974)). Nor does a proper invocation of the privilege mean that a defendant is excused from the requirement to file a responsive pleading; he is obliged to answer those allegations that he can and to make a specific claim of the privilege as to the rest. 5 C. Wright & A. Miller, Federal Practice and Procedure § 1280, at 360 (1969).

Stefanou argues that his invocation of the privilege was proper under Rogers v. Webster, 776 F.2d 607 (6th Cir.1985), and National Acceptance Co. of America v. Bathalter, 705 F.2d 924 (7th Cir.1983). We disagree. Neither Rogers nor National Acceptance is dispositive of the issue presented here. Neither case dealt with the threshold issue of whether the fifth amendment privilege had been properly asserted so as to allow the district court to make a reasonable assessment of the risk of incrimination.2 The issue here is whether Stefanou properly asserted his privilege so that the rules of civil procedure “give way in order to protect the defendant’s constitutional right to avoid self-incrimination,” Rogers, 776 F.2d at 611 (quoting National Acceptance, 705 F.2d at 926), or whether Stefanou chose a strategy that effectively negated a fair balancing of his interests against the interests of those pursuing a claim against him, and the interests of society in the expeditious resolution of litigation.

The privilege against self-incrimination, one of our most cherished fundamental rights, is jealously guarded by the courts. It protects an individual not only [487]*487from involuntarily becoming a witness against himself in a criminal proceeding but also from answering specific allegations in a complaint or filing responses to interrogatories in a civil action where the answers might incriminate him in future criminal actions. But for one to invoke this privilege the party claiming it must not only affirmatively assert it, he must do so with sufficient particularity to allow an informed ruling on the claim. Under the circumstances of this case, a blanket refusal to answer or respond was not sufficient. United States v. Pierce, 561 F.2d 735, 741 (9th Cir.1977), cert. denied, 435 U.S. 923, 98 S.Ct. 1486, 55 L.Ed.2d 516 (1978); accord United States v. Zappola, 646 F.2d 48, 53 (2d Cir.1981), conviction aff'd on remand, 677 F.2d 264 (2d Cir.), cert. denied, 459 U.S. 866, 103 S.Ct. 145, 74 L.Ed.2d 122 (1982); United States v. Goodwin,

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831 F.2d 484, 9 Fed. R. Serv. 3d 514, Counsel Stack Legal Research, https://law.counselstack.com/opinion/north-river-insurance-v-stefanou-ca4-1987.