Defendants' Response to Blue Flame Medical's Motion for Leave to File Supplemental Authorities (Document 173)

Summary

The defendants' response to Blue Flame Medical LLC's motion for leave to file supplemental authorities, filed August 12, 2021 as Document 173 in Blue Flame Medical LLC v. Chain Bridge Bank, N.A., John J. Brough and David M. Evinger, Civil Action No. 1:20-cv-00658, in the U.S. District Court for the Eastern District of Virginia, Alexandria Division. The defendants call the motion (Dkt. No. 170) a post-argument sur-reply urging the court to consider a late declaration from Henry Huang, and say it is untimely because the cited cases predate summary judgment briefing and the arguments answered were made in their May 27, 2021 reply. They do not oppose consideration of the cases, but argue the Huang declaration cannot be considered at the Rule 56 stage because Huang, citing Chinese law, refused to appear for a deposition after accepting a subpoena in December 2020.

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
(Alexandria Division)

BLUE FLAME MEDICAL LLC,

Plaintiff,

v.

CHAIN BRIDGE BANK, N.A., JOHN J.
BROUGH, and DAVID M. EVINGER,

Defendants.

Civil Action No. 1:20-cv-00658

CHAIN BRIDGE BANK, N.A,

Third-Party Plaintiff,

v.

JPMORGAN CHASE BANK, N.A.,

Third-Party Defendant.

DEFENDANTS’ RESPONSE TO BLUE FLAME MEDICAL LLC’S
MOTION FOR LEAVE TO FILE SUPPLEMENTAL AUTHORITIES
August 12, 2021
ROBBINS, RUSSELL, ENGLERT, ORSECK
   & UNTEREINER LLP
Gary A. Orseck (admitted pro hac vice)
Matthew M. Madden (admitted pro hac vice)
Donald Burke (VA Bar No. 76550)
2000 K Street, N.W., 4th Floor
Washington, D.C. 20006
Tel: (202) 775-4500
Fax: (202) 775-4510
dburke@robbinsrussell.com
Counsel for Defendants
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Defendants Chain Bridge Bank, N.A. (Chain Bridge), John J. Brough, and David M.
Evinger submit this memorandum in response to the Motion for Leave to File Supplemental
Authorities (Dkt. No. 170) filed by Plaintiff Blue Flame Medical LLC (Blue Flame).
Blue Flame styles its motion as a request to submit supplemental authorities, but the
document is in substance a post-argument sur-reply that implores the Court to consider Henry
Huang’s eleventh-hour declaration.  As an initial matter, Blue Flame’s timing is improper.  The
cases Blue Flame attaches are not actually “recent district court decisions” (Dkt. No. 171 (Memo.),
at 3); rather, each of them was decided well before the close of summary judgment briefing.  And
although Blue Flame insists (Memo. 2) that its submission is necessary to respond to arguments
pressed by Defendants at the July 28, 2021 hearing, Defendants made these same arguments in
their reply brief filed on May 27, 2021.  See Dkt. No. 155, at 5-7.  If Blue Flame had thought
further argument was warranted, it should have sought leave to file a sur-reply promptly thereafter
(and before the hearing).
That said, Defendants do not oppose the Court’s consideration of these cases.  None of
them, however, supports Plaintiff’s assertion that the Huang declaration is cognizable evidence at
the Rule 56 stage, much less does the declaration save Blue Flame’s meritless claims from
summary judgment.
1.  Basic fairness precludes consideration of evidence from a witness, like Huang, who has
refused to be deposed.  See Dkt. No. 155, at 5-6.  Huang accepted service of Defendants’ deposition
subpoena in December 2020, but declined to appear, citing restrictions imposed by Chinese law.
See Dkt. No. 157-2 (Defs.’ Ex. 114).1  Towards the close of discovery, Defendants learned that

1 At the hearing on the parties’ summary judgment motions, Blue Flame’s counsel incorrectly
asserted that Huang was “never served with a, with a subpoena of any kind” and that Defendants
“attempted to locate him and then abandoned their effort to communicate with him further.”
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Huang had been in contact with Blue Flame’s John Thomas—his “very good friend[],” Dkt. No.
157-3 (Defs.’ Ex. 115), at 214—and was considering traveling outside of China to give deposition
testimony at Blue Flame’s request, Dkt. No. 157-2 (Defs.’ Ex. 114),  at 3.  Defendants then asked
to be included in any discussions regarding Huang’s deposition, pursuant to Defendants’
outstanding deposition subpoena, but Huang advised that he was “currently still in China and will
be for the near future.”  Id. at 1.  Defendants heard nothing further from Huang until well after the
close of discovery, when Blue Flame unveiled Huang’s made-for-summary-judgment declaration.
Under these circumstances, it would be profoundly inequitable to consider Huang’s declaration.
That is particularly so given Huang’s evident partisanship, and the fertile grounds for cross-
examination had Defendants been able to depose him.  See, e.g., Dkt. No. 131-18 (Defs.’ Ex. 83)
(Huang’s contemporaneous email to Blue Flame explaining that such a large order would be
“impossible to fulfill”).  Permitting Huang to “give unchallenged affidavit testimony . . . would
clearly violate the purpose of discovery.”  McKellar v. State Farm Fire & Cas. Co., No. 14-cv-
13730, 2016 WL 304759, at *8 (E.D. Mich. Jan. 26, 2016).
Blue Flame’s belatedly identified cases do not undermine that conclusion.  In the first case,
the district court denied a motion to strike summary judgment declarations submitted by China-
based witnesses, but the court did not consider an argument that the declaration was improper
because the declarants had refused to be deposed.  See Zhizheng Wang v. Hull, No. C18-1220RSL,
2020 WL 3315990, at *2-4 (W.D. Wash. June 18, 2020), reconsideration denied, 2020 WL
8839776 (W.D. Wash. July 6, 2020).  Instead, the court considered (and rejected) arguments that
the declarations were improper because they had been executed in violation of Chinese law (id. at

7/28/2021 Tr. 18. In fact, Huang agreed to accept service of Defendants’ deposition subpoena.
Dkt. No. 157-2 (Defs.’ Ex. 114), at 4-6.
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*2-3) and because the declarants stated that they did not intend to submit to the court’s jurisdiction
(id. at *3-4).  In a subsequent decision, the district court made clear that the plaintiff would “not
be permitted to refuse to be deposed while offering his declarations as evidence when it suits him.”
Zhizheng Wang v. Hull, No. C18-1220RSL, 2020 WL 4734930, at *2 (W.D. Wash. June 22, 2020).
The court therefore granted a motion to compel the plaintiff’s deposition and stayed the case until
the deposition could take place.  Id.  Here, Blue Flame does not seek such relief.  Rather, Blue
Flame wants to overcome summary judgment by relying on Huang’s unchallenged declaration.
The Zhizheng Wang decisions offer no authority for that result.
Blue Flame’s two other cases are even further afield.  Both Squires v. Toyota Motor Corp.,
No. 4:18-CV-00138, 2021 WL 1837540 (E.D. Tex. May 7, 2021), and Jacobs v. Floorco
Enterprises, LLC, No. 3:17-CV-90-RGJ-CHL, 2020 WL 1290607 (W.D. Ky. Mar. 18, 2020),
addressed highly context-specific disputes about whether witnesses located abroad would be
required to travel to be deposed.  In Squires, the court declined to order immediate depositions of
witnesses located in Japan, because of the public-health conditions that prevailed at the time and
the possibility that the plaintiffs could explore the same information through other sources.  2021
WL 1837540, at *4-5.  And in Jacobs, the court granted a motion to compel the deposition of a
witness located in China, but decided not to “impose a deadline” for the deposition.  2020 WL
1290607, at *16.  Neither decision remotely suggests that a party can overcome summary judgment
by submitting an unchallenged declaration from a witness who has refused to be deposed.  Nor do
these decisions suggest that Huang’s refusal to be deposed was anything other than a choice, based
on (as Huang’s declaration tells it) the quarantine restrictions that Huang would have encountered
upon returning to China.  See Dkt. No. 155, at 6. To the contrary, as another district court in the
Fourth Circuit recently observed, the “travel restrictions in mainland China related to the COVID-
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19 pandemic” are “inconveniences,” but they are “not impossibilities.”  Estate of Boyles v. Gree
USA, Inc., No. 1:20-CV-276, 2021 WL 3292727, at *7 (M.D.N.C. Aug. 2, 2021).  Blue Flame’s
assertion (Memo. 3) that Huang “could not comply” with Defendants’ deposition subpoena is not
correct.
Blue Flame’s effort (Memo. 4 n.2) to distinguish the cases cited in Defendants’ summary-
judgment reply is likewise unavailing.  There is no logical distinction between a declarant who has
“intentionally avoided formal service” or “failed to appear at a scheduled deposition” (id.) and one
like Huang, who accepted service but then simply refused to be deposed.  Nor is there any
requirement that the absent declarant be formally controlled by the party seeking to offer his
declaration.  In Henry v. Outback Steakhouse of Florida., LLC, No. 15-cv-10755, 2017 WL
1382292 (E.D. Mich. Apr. 18, 2017), for example, the court observed that the plaintiff “had some
control” over the non-party witnesses whose declarations he sought to offer, and it held that “where
one party has been in continued contact with non-party affiants but the other party has been denied
the ability to question their statements, . . . the affidavits should be stricken.”  Id. at *2.  That is
precisely what occurred here.  Finally, Blue Flame’s speculation that Huang might one day make
himself available to testify makes no difference.  There is no telling when the Chinese government
might loosen its quarantine restrictions or when Huang’s responsibilities might change in a way
that would lead him to choose to leave China and submit to cross-examination.  See Dkt. No. 155,
at 6 n.8.
2.  Huang’s declaration is not cognizable at summary judgment for the independent reason
that it does not “set out facts that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(4)
(emphasis added); see Dkt. No. 155, at 7. “[S]ummary judgment affidavits cannot be conclusory,”
Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996), and Blue
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Flame’s strained efforts to portray Huang’s declaration as sufficiently substantive are
unpersuasive.  Blue Flame cites (Memo. 2 n.1) Huang’s general descriptions of market conditions
in China, his fleeting reference to “actual production lines,” and his supposition that his outfit
might have used a large prepaid purchasing commitment to secure supply for California.  But what
is conspicuously absent from Huang’s declaration is any concrete explanation of how he could
have secured 100 million N95 masks—there is no information at all on sources of supply, or any
plans for the massive increase in production that would have been required to fill California’s
order.  See Dkt. No. 155, at 7.
The sole case Blue Flame cites on this point, Redmond v. Yachting Solutions, LLC, 435 F.
Supp. 3d 257 (D. Me. 2019), does not help Blue Flame.  There, the court held that a declarant was
competent to offer estimates of the time that would be required to complete certain tasks, based on
his own experience completing those tasks as an employee.  See id. at 261.  Here, by contrast,
Huang does not assert that he ever delivered a single N95 mask to anyone.  Huang’s unsupported
assertions that he could have provided 100 million masks in short order are not entitled to any
weight.2
3.  In any event, even if Huang’s declaration were cognizable it would still do nothing to
rescue Blue Flame from summary judgment for failure of proof of causation and damages.   As we
have explained, Blue Flame’s damages case fails—even before considering Blue Flame’s inability
to fulfill California’s order—because California exercised an unfettered right to terminate the

2 The principle that “summary judgment affidavits cannot be conclusory,” Evans, 80 F.3d at
962, is not a mere drafting rule, as Blue Flame appears to suggest.  See Memo. 2 n.1.  A declarant’s
unsupported and conclusory assertions are not transformed into admissible evidence simply
because they are not prefaced with the phrase “I believe” or “in my opinion.”  Rather, the declarant
must offer some “objective corroboration,” Evans, 80 F.3d at 962 (emphasis added), which is
wholly lacking here.
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transaction as soon as it learned the true facts about Blue Flame that its principals had concealed.
All of that happened well before there was any conceivable basis for Blue Flame to insist that
California’s funds had to be released.  See Dkt. No. 119, at 22-24; Dkt. No. 140, at 22-23; Dkt.
No. 155, at 1-2.3  Because any injury Blue Flame suffered was a result of California’s decision not
to proceed, Blue Flame cannot demonstrate “damages resulting from [Chain Bridge’s] refusal to
pay.”  UCC § 4A-404(a).  Thus, the Court may resolve the issues of causation and damages in
Defendants’ favor on that independent ground without reaching the question of Blue Flame’s
inability to perform.

Date: August 12, 2021
Respectfully submitted,
/s/ Donald Burke
Gary A. Orseck (admitted pro hac vice)
Matthew M. Madden (admitted pro hac vice)
Donald Burke (VA Bar No. 76550)
ROBBINS, RUSSELL, ENGLERT, ORSECK
   & UNTEREINER LLP
2000 K Street, N.W., 4th Floor
Washington, D.C. 20006
Tel: (202) 775-4500
Fax: (202) 775-4510
dburke@robbinsrussell.com
Counsel for Defendants

3 As a new customer, Blue Flame was subject to Chain Bridge’s Funds Availability Disclosure
providing that “[f]unds from wire[] transfers . . . will be available on the first business day after
the day of your deposit.”  Dkt. No. 157-1 (Defs.’ Ex. 113), at 2610 (emphasis added).  Here, that
was March 27, 2020—the day after California and JPMorgan cancelled California’s wire transfer.
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CERTIFICATE OF SERVICE
I hereby certify that on August 12, 2021, I will electronically file the foregoing with the
Clerk of Court using the CM/ECF system, which will then send a notification of such filing to the
following:

Peter H. White, Esq. (VA Bar No. 32310)

SCHULTE ROTH & ZABEL LLP
901 Fifteenth Street, NW, Suite 800
Washington, DC 20005
Phone: (202) 729-7476
Fax: (202) 730-4520
Email: peter.white@srz.com
Counsel for Plaintiff

Meredith K. Loretta, Esq. (VA Bar No. 92369)
WILMER CUTLER PICKERING HALE &
DORR LLP
1875 Pennsylvania Avenue NW
Washington, DC 20006
Phone: (212) 663-6981
Email: meredith.loretta@wilmerhale.com
Counsel for Third-Party Defendant

/s/ Donald Burke
Donald Burke (VA Bar No. 76550)
ROBBINS, RUSSELL, ENGLERT,
ORSECK & UNTEREINER LLP
2000 K Street, N.W., 4th Floor
Washington, D.C. 20006
Tel: (202) 775-4500
Fax: (202) 775-4510
dburke@robbinsrussell.com

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