Anthony et al v. Harmon et al

Filing 142

ORDER OF RECUSAL signed by Judge William B. Shubb on 10/20/2010 ORDERING [ 138 ] that the Clerk of the Court reassign this case to District Judge Morrison C. England, Jr. for all further proceedings, making appropriate adjustments in the assignments of civil cases to compensate for such reassignment. All dates pending before the WBS are hereby VACATED. Magistrate Judge Kimberly J. Mueller remains assigned to this action. The case number on all future documents shall be: 2:09-CV-2272 MCE KJM. (Reader, L)

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Anthony et al v. Harmon et al Doc. 142 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ----oo0oo---CARMELO ANTHONY; MELO ENTERPRISES, INC.; and CHOSEN ONE PROPERTIES, LLC, Plaintiffs, v. LARRY HARMON aka LARRY W. HARMON aka LAWRENCE HARMON; LARRY HARMON & ASSOCIATES, P.A.; HARMON-CASTILLO, LLP; FRANK CASTILLO; KELLY RUNKLE; SORA BARNES; KENNY CRUZ aka KENNETH CRUZ; KC DEVELOPMENT, LLC; VITALIS PARTNERS, LLC; PROFESSIONAL PARTNERS, LLC; and MCG PARTNERS, Defendants. / ----oo0oo---This matter was before the court on plaintiffs' motion for leave to file a Second Amended Complaint on October 12, 2010. The court fully intended to hear oral arguments on the motion. However, when the case was called counsel for plaintiffs appeared but counsel for defendants was not present. 1 Wrongly assuming NO. CIV. 2:09-2272 WBS KJM ORDER OF RECUSAL Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that defense counsel's absence was either intentional or negligent, the court announced that it would grant the motion on its merits. As it was, defendants' attorney had been locked out of the courtroom and was waiting at the doors when his case was called. By the time defense counsel's presence was determined, plaintiffs' attorney had already left the building and was on his way back to Beverly Hills. It is the court's responsibility to assure that the doors to the courtroom are open while court is in session and that parties and their attorneys are not locked out of proceedings in their case. It was thus the fault of the court, not counsel, that defendants' attorney was not allowed to be heard before the court announced an opinion on plaintiffs' motion. Given this unfortunate occurrence, the court is uncomfortable deciding the motion. If the matter were to be rescheduled for argument, any decision I might make now would be tainted by the perception that I had already made up my mind before hearing the arguments of counsel. Conversely, if the matter were to be simply submitted without arguments, both sides would be denied arguments which the record clearly indicates the court intended to hear. The institutional integrity of the federal courts requires scrupulous protection of public confidence in the judicial process. States v. Bosch, 951 F.2d 1546, 1551 (9th Cir. 1991) (O'Scannlain, J., dissenting). Accordingly, the court has determined that the most prudent course is to have the matter heard by another judge who has not prematurely expressed an opinion on the merits of the 2 United 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 pending motion. Cf. United States v. Quach, 302 F.3d 1096, 1104 (9th Cir. 2002) ("In light of [the judge's] comments [at sentencing], we conclude that remand to a different judge would preserve the appearance of justice in light of the district judge's `potential bias' . . . ."); Haines v. Liggett Group Inc., 975 F.2d 81, 97-98 (3d Cir. 1992) (reassigning the case when an order addressing attorney-client privilege appeared to express an opinion on the ultimate merits of the claims). IT IS THEREFORE ORDERED that the Clerk of the Court reassign this case to another judge for all further proceedings, making appropriate adjustments in the assignments of civil cases to compensate for such reassignment. the undersigned are hereby vacated. DATED: October 20, 2010 All dates pending before 3

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