Walton v. Neptune Technology Group, Inc. et al

Filing 34

MEMORANDUM OPINION AND ORDER, denying 20 MOTION to Recuse or Disqualify filed by Rebecca F. Walton. Signed by Hon. Chief Judge Mark E. Fuller on 4/15/09. (Attachments: # 1 civil appeals checklist)(vma, )

IN THE UNITED STATES DISTRICT COURT FOR T H E MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION R E B E C C A F. WALTON, P la in tif f , v. N E P T U N E TECHNOLOGY GROUP, IN C ., et al., D e f e n d a n ts. ) ) ) ) ) ) ) ) )

C A S E NO. 2:08-cv-0005-MEF

M E M O R A N D U M OPINION AND ORDER T h is cause is before the Court on the Motion to Recuse or Disqualify (Doc. # 20) filed b y counsel for Plaintiff Rebecca F. Walton ("Walton") on March 11, 2009. For the reasons s e t forth below, the motion is due to be DENIED.

PROCEDURAL BACKGROUND O n January 2, 2008, Walton filed this lawsuit against her former employer and its p a re n t company alleging various types of unlawful employment practices and acts of in te n tio n a l discrimination. Initially, Priscilla Black Duncan ("Duncan") and Alicia K. H a yn e s ("Haynes") represented Walton, but in November of 2008, Haynes sought and was g ra n te d leave to withdraw her appearance as counsel for Walton. On March 10, 2009, D e f e n d a n ts filed a motion for summary judgment. On March 11, 2009, Duncan delivered to the undersigned a letter informally re q u e s tin g that the undersigned recuse himself from this case. A copy of that letter was not

provided to opposing counsel. The undersigned directed the Clerk of the Court to docket the le tte r as a Motion to Recuse or Disqualify (Doc. # 20). This letter set forth various a lle g a tio n s of a fact on which Duncan bases her contention that the undersigned should re c u s e . It was not supported by any affidavit or any other evidentiary submissions, and it did n o t contain any legal argument or citation to legal authorities. Accordingly, the Court e n te re d an Order (Doc. # 20) on March 11, 2009, requiring Duncan to file a brief in support o f her request for recusal by no later than March 18, 2009. On March 19, 2009, the day after th e deadline for submission of her brief, Duncan sought leave to file her brief in support out o f time. The Court granted this request. Duncan filed not only a brief in support of her m o tio n , but several exhibits, including an affidavit. On March 31, 2009, Defendants' counsel tim e ly filed a brief in opposition to the Motion to Recuse or Disqualify. ASSERTED FACTUAL PREDICATE O n May 17, 2005, a grand jury returned an indictment against Don Eugene Siegelman (" S ie g e lm a n " ) and Richard Scrushy ("Scrushy"). The case garnered significant publicity. S ie g e lm a n is a politician who has been elected to several prominent positions in Alabama, in c lu d in g Governor. Scrushy is a wealthy and prominent Alabama businessman. This case w a s randomly assigned to the undersigned. After a lengthy trial in 2006, a jury returned c o n v ic tio n s against Siegelman and Scrushy on a number of the criminal charges against th e m .1 Siegelman and Scrushy unsuccessfully sought relief from this verdict through a

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The jury returned its verdict late in June of 2006. 2

variety of post-trial motions. On the eve of sentencing 2 nearly one year after the jury c o n v ic te d him, Scrushy filed a motion asking the undersigned to recuse himself from h a n d lin g that case and to grant a new trial. Scrushy argued that the fact that the undersigned h a d investment interests in a private corporation engaged in fulfilling contract work for the U n ite d States Government disqualified the undersigned from handling any cases in which th e United States was a party. The Court denied the motion to recuse. Ultimately, the E le v e n th Circuit Court of Appeals affirmed this and other rulings and affirmed all of S c ru s h y's convictions and all but one of Siegelman's convictions. Siegelman and Scrushy h a v e asked for rehearing en banc. In July of 2007, a friend asked Duncan to give legal advice and assistance to an a tto rn e y named Dana Jill Simpson ("Simpson"). Simpson has provided sworn statements to th e effect that the prosecution of Siegelman, a Democrat, was politically motivated. Simpson h a s testified that Rob Riley, the son of Alabama's current, Republican Governor Bob Riley, to ld her that the undersigned would hang Siegelman if Siegelman's case was assigned to him b e c a u s e of alleged bad feelings by the undersigned for Siegelman from events predating the u n d e rs ig n e d 's appointment to the bench. Curious about the undersigned, Simpson did some re s e a rc h . Eventually, Simpson provided some of the information she located to counsel for S c ru s h y and he used some of it in his motion seeking to have the undersigned recuse himself

Scrushy filed the motion to recuse and motion for vacatur or new trial on April 18, 2 0 0 7 . Siegelman did not join in this motion. On June 28, 2007, the Court imposed sentence o n Siegelman and Scrushy after a three day sentencing hearing. 3

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from handling the sentencing phase of the criminal matter. Simpson also testified before a C o n g re s s io n a l committee looking into the Siegelman prosecution. The Justice Department's O f f ic e of Prosecution Services has contacted Duncan regarding Simpson's information. Duncan believes, based on hearsay information from an undisclosed source, that the u n d e rs ig n e d has had conversations with a Montgomery attorney unconnected with either this c a s e or the Siegelman/Scrushy case regarding Simpson and the Siegelman/Scrushy case. Duncan asserts that she expects someone, she does not disclose which defendant, will soon s e e k another appeal of the Siegelman/Scrushy case on the basis of a contention that the u n d e rs ig n e d had animosity toward Siegelman which allegedly arose from events prior to the in d ic tm e n t of Siegelman. Duncan and Walton believe that because Simpson has investigated th e undersigned in connection with the Siegelman/Scrushy case and because Duncan has re p re se n te d Simpson in connection with that activity, the undersigned would find it im p o s sib le to be fair. Duncan admits that she waited until the case had been pending before the undersigned f o r more than a year to file her request. She argues that her client's decision to reject a s e ttle m e n t offer and proceed to trial caused her to finally make her request. DISCUSSION Pursuant to 28 U.S.C. §§ 144 and 455(a), Walton contends that the foregoing "facts" d is q u a lif y the undersigned from serving as a judge in this matter and that the undersigned

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should recuse himself from this case.3 Defendants disagree. They contend that the motion m u s t be denied because it is untimely and because it is not properly supported under the a p p lic a b le law. T h e two federal statutes Walton invokes govern recusal. Section 144 provides that [ w ]h e n e v e r a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is p e n d in g has a personal bias or prejudice either against him or in favor of any a d v e rs e party, such judge shall proceed no further therein, but another judge s h a ll be assigned to hear such proceeding. The affidavit shall state the facts and reasons for the belief that bias or p re ju d ic e exists, and shall be filed not less than ten days before the beginning o f the term at which the proceeding is to be heard, or good cause shown for f a ilu re to file it within such time. A party may file only one such affidavit in a n y case. It shall be accompanied by a certificate of counsel of record stating th a t it has been made in good faith. 28 U.S.C. § 144 (emphasis supplied). Section 455(a) adds the following: "[a]ny justice, ju d g e , or magistrate judge of the United States shall disqualify himself in any proceeding in w h ic h his impartiality might reasonably be questioned." 28 U.S.C. § 455(a).4 Section 455(a) p ro v id e s that a judge should disqualify himself when there is an appearance of impropriety. United States v. Patti, 337 F.3d 1317, 1321 (11th Cir. 2003), cert. denied, 540 U.S. 1149 (2 0 0 4 ). "The very purpose of § 455(a) is to promote confidence in the judiciary by avoiding
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Walton actually misidentifies the legal basis for her motion. She invokes 28 U.S.C. § 41, a statute which has to do with the number and composition of circuits in this country. The language she quotes, however, is actually found at 28 U.S.C. § 144, which addresses bias o r prejudice of a judge. Despite this typographical error, the Court addresses Walton's m o tio n as being predicated on the two statutes she appears to have intended to cite. 28 U.S.C. § 455(b) sets forth five other specific circumstances in which a judge s h o u ld recuse, but Walton only invokes § 455(a) in her brief in support of her motion. 5
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even the appearance of impropriety whenever possible."

Liljeberg v. Health Servs.

A c q u is itio n Corp., 486 U.S. 847, 865 (1988). Thus, the standard of review for a § 455(a) m o tio n "is whether an objective, disinterested, lay observer fully informed of the facts u n d e rlyi n g the grounds on which recusal was sought would entertain a significant doubt a b o u t the judge's impartiality," Parker v. Connors Steel Co., 855 F.2d 1510, 1524 (11th Cir. 1 9 8 8 ),5 cert. denied, 490 U.S. 1066 (1989), and any doubts must be resolved in favor of re c u s a l, United States v. Kelly, 888 F.2d 732, 744 (11th Cir. 1989). "The decision whether a judge's impartiality can `reasonably be questioned' is to be made in light of the facts as th e y exist[], and not as they [are] surmised or reported." Cheney v. U.S. Dist. Ct. for Dist. o f Columbia, 541 U.S. 913, 914 (2004) (quoting Microsoft Corp. v. United States, 530 U.S. 1 3 0 1 , 1302 (2000)). Moreover, "a judge, having been assigned to a case, should not recuse h im s e lf on unsupported, irrational, or highly tenuous speculation." United States v.

G r e e n o u g h , 782 F.2d 1556, 1558 (11th Cir.), reh'g denied by, 788 F.2d 1570 (11th Cir. 1 9 8 6 ). The first task for this Court is to determine whether Walton's motion and supporting a f f id a v it were timely filed. Because of the possibility of substantial abuse, courts demand s tric t compliance with the procedural requirements of § 144, including the requirement that a motion to disqualify be timely. In re Martinez-Catala, 129 F.3d 213, 218 (1st Cir. 1997).

Accord, Thomas v. Tenneco Packaging Co., Inc., 293 F.3d 1306, 1329 (11th Cir. 2 0 0 2 ) (The standard is "whether an objective, fully informed lay observer would entertain s ig n if ic a n t doubt about the judge's impartiality.") 6

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See also, United States v. Womack, 454 F.2d 1337 (5th Cir. 1972), 6 cert. denied, 414 U.S. 1 0 2 5 (1973); Andrews, Mosburg, Davis, Elam, Legg & Bixler, Inc. v. General Ins. Co. of A m ., 418 F. Supp. 304 (W.D. Okla. 1976); United States v. Hall, 424 F. Supp. 508, 534 (W .D . Okla. 1975), aff'd 536 F.2d 313 (10th Cir.), cert. denied, 429 U.S. 919 (1976). Of c o u rs e , the requirement of § 144 that a motion and affidavit "be filed not less than ten days b e f o re the beginning of the term at which the proceeding is to be heard" is no longer a p p lic a b le due to the abolition of set terms of court. However, the provision has been in te rp re te d to mean that disqualification must be sought promptly upon first learning of the a ll e g e d facts giving rise to the claim of judicial bias. See Green v. Dorrell, 969 F.2d 915, 9 1 9 (10th Cir. 1992), cert. denied, 507 U.S. 940 (1993). The same policy considerations have led courts to require that motions brought under § 455 also be filed in a timely manner, notwithstanding the lack of a specific statutory p ro v is io n . "All the circuits that have considered the question ... agree that a party may not h o ld back `a recusal application as a fall-back position in the event of adverse rulings on p e n d in g matters.'" Recusal, Analysis of Case Law Under 28 U.S.C. §§ 455 & 144, Federal J u d ic ia l Center (2002) (quoting In re IBM Corp., 45 F.3d 641, 643 (2nd Cir. 1995)) (other c ita tio n s omitted). As with motions brought under § 144, motions to disqualify pursuant to § 455 must be brought "at the earliest moment after obtaining knowledge of facts

In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11 th Cir. Nov. 3, 1981) (e n banc), the Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions h a n d e d down prior to the close of business on September 30, 1981. 7

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demonstrating the basis for such a claim." Travelers Ins. Co. v. Liljeberg Enters., Inc., 38 F .3 d 1404, 1410 (5th Cir. 1994); see also U.S. v. Slay, 714 F.2d 1093, 1094 (11th Cir.1983), c e r t. denied, 464 U.S. 1050 (1984). Indeed, the Eleventh Circuit Court of Appeals has re c e n tly addressed the requirement that such motions be timely made. See, United States v. S ie g e lm a n , ___ F.3d___, 2009 WL 564659 (11th Cir. Mar. 6, 2009) (holding that a motion f o r recusal was properly denied because it was not timely made). It explained that A motion for recusal based upon the appearance of partiality must be timely m a d e when the facts upon which it relies are known. The untimeliness of such a motion is itself a basis upon which to deny it. Phillips v. Amoco Oil Co., 799 F .2 d 1464, 1472 (11th Cir. 1986). The rule has been applied when the facts u p o n which the motion relies are public knowledge, even if the movant does n o t know them. National Auto Brokers Corp. v. General Motors Corp., 572 F .2 d 953, 957-59 (2nd Cir. 1978). The purpose of the rule is to "conserve ju d ic ia l resources and prevent a litigant from waiting until an adverse decision h a s been handed down before moving to disqualify the judge." Summers v. S in g le ta r y , 119 F.3d 917, 921 (11th Cir. 1997). S ie g e lm a n , 2009 WL 564659 at *26. In this case, it is clear that prior to filing this lawsuit, Walton's attorney was aware of m o s t, if not all, of the "facts" on which the informal ex parte request to recuse or disqualify w a s based. Nevertheless, Walton's counsel failed to raise this issue until the case had been p e n d in g for more than a year. She waited until after the undersigned had entered two d if f e re n t scheduling orders setting trial dates and had ruled upon a request for extension of th e trial setting based upon delays in discovery. She waited until after she had an opportunity to review the nature of the motion for summary judgment filed by Defendants and until her c lie n t decided to reject a settlement offer. Such a strategic decision to delay is inexcusable. 8

Based on the binding precedent from the Eleventh Circuit Court of Appeals, the Court finds th a t the motion is due to be DENIED as untimely made. Even assuming arguendo that Walton had timely brought this motion, it is still due to be denied because it lacks substantive merit. Duncan claims bias towards her and not to w a r d Walton or any other party to this action. The claimed bias arises for Duncan's re p re se n ta tio n of people wholly uninvolved with this action. Moreover, the undersigned has n o financial or other personal interest in the actions of any of Duncan's clients. Counsel for D e f e n d a n ts have cogently summarized the applicable law on this issue. The key

c o n s id e ra tio n is demonstrated biased against a party, rather than imagined bias against an a tto rn e y. See, e.g., Diversified Numismatics, Inc. v. City of Orlando, Fla., 949 F.2d 382 (1 1 th Cir. 1991); Davis v. Board of Sch. Comm'rs of Mobile County, 517 F.2d 1044 (5th Cir. 1 9 7 5 ), cert. denied, 425 U.S. 944 (1976); United States v. State of Alabama, 582 F. Supp. 1 1 9 7 (N.D. Ala. 1984). Furthermore, the Court is satisfied that no objective, fully informed la y observer would entertain significant doubt about the undersigned's impartiality based on th e record presented. Thus the evidentiary submissions7 and legal argument offered in s u p p o rt of the motion are legally deficient. Accordingly, the motion is due to be DENIED.

Walton has not submitted an affidavit in support of her motion. Rather the motion is merely supported by an affidavit from Duncan. 9

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CONCLUSION T h e undersigned can and will be fair to all parties in this case. Recusal is not w a rra n te d under the applicable law. For the foregoing reasons, it is hereby ORDERED that th e Motion to Recuse or Disqualify (Doc. # 20) filed by counsel for Walton on March 11, 2 0 0 9 is DENIED. D O N E this the 15th day of April, 2009. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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