Fresenius USA, Inc. et al v. Baxter International Inc. et al

Filing 1077

ORDER OF RECUSAL. Signed by Judge Saundra Brown Armstrong, on 2/16/10. (lrc, COURT STAFF) (Filed on 2/16/2010) Modified on 2/17/2010 (jlm, COURT STAFF).

1 2 3 4 5 6 FRESENIUS MEDICAL CARE HOLDINGS, INC., a New York corporation; and FRESENIUS 7 USA, INC., a Massachusetts corporation, 8 9 v. Plaintiffs and Counter-Defendants, Case No: C 03-1431 SBA ORDER OF RECUSAL UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION

10 BAXTER INTERNATIONAL, INC., a Delaware corporation; and BAXTER 11 HEALTHCARE CORPORATION, a Delaware corporation, 12 Defendants and Counterclaimants. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A district court judge has the authority to sua sponte recuse him or herself from an action under 28 U.S.C. § 455. See United States v. Holland, 519 F.3d 909, 913 (9th Cir. 2008). Section 455(a) provides that: "Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). The potential for the appearance of impartiality may be based on facts germane to the judge's staff, including her law clerks. See Hamid v. Price Waterhouse, 51 F.3d 1411, 1416 (9th Cir. 1995) ("Even if the judge has no reason to recuse herself based upon her own circumstances, a law clerk's relationships might cause the impartiality of decisions from that judge's chambers in which the clerk participates reasonably to be questioned."). In the instant case, an attorney previously involved in this case has joined the Court's chambers as a law clerk. Although his involvement in the case has ended, he is still listed in ECF as counsel of record. The law clerk has had no involvement in the action since his arrival, and while his prior employment has no bearing on this Court's ability to preside over the case in a fair and impartial manner, the law clerk's prior role could create the appearance of impartiality.

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Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 860 (1988) ("The goal of section 455(a) is to avoid even the appearance of partiality.") (internal quotation marks omitted). For these reasons, the undersigned RECUSES herself from the instant proceedings and directs the Clerk of the Court to reassign this case to another judge for all further proceedings forthwith. IT IS SO ORDERED.

Dated: February 16, 2010

____________________________ SAUNDRA BROWN ARMSTRONG United States District Judge

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