Hickman v. CBS Corporation et al
MEMORANDUM ORDER. Signed by Judge Sherry R. Fallon on 6/26/2017. (lih)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
IN RE: ASBESTOS LITIGATION
GERALD L. HICKMAN,
A. W. CHESTERTON COMPANY, et al., )
Civil Action No. 16-308-LPS-SRF
At Wilmington thislJJL day of June, 2017,
WHEREAS, on June 5, 2017, the court conducted a status conference, at which time the
undersigned Magistrate Judge acknowledged a prior working relationship with counsel for a
defendant at the law firm of Tybout, Redfearn & Pell;
WHEREAS, the undersigned Magistrate Judge requested that counsel disclose the prior
working relationship to their respective clients and submit letters to the court, identifying
whether there were any objections to the undersigned Magistrate Judge continuing to serve as the
Magistrate Judge assigned to the above-captioned matter;
WHEREAS, on June 20, 2017, counsel for defendants submitted a letter confirming that
defendants have no objection to the undersigned Magistrate Judge continuing to serve as the
assigned Magistrate Judge for the above-captioned matter (D.I. 154),
WHEREAS, on June 23, 2017, counsel for plaintiff, Raeann Warner, submitted a letter
confirming that plaintiff has no objection to the undersigned Magistrate Judge continuing to
serve as the assigned Magistrate Judge for the above-captioned matter (D.I. 168);
WHEREAS, the court has independently reviewed the recusal statutes 1 and determined
that recusal is not warranted in the present matter; and
WHEREAS, there are no pending motions for recusal in this case;,
The "decision of whether to recuse from hearing a matter lies within the sound
discretion of the trial court judge." United States v. Wilensky, 757 F.2d 594, 599-600 (3d Cir.
1985). Recusal is governed by 28 U.S.C. §§ 144 and 455.
Under 28 U.S.C. § 144, recusal must occur "[w]henever 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 pending has a personal bias or prejudice either against him or in favor of any adverse
party." 28 U.S.C. § 144. A "substantial burden is imposed on the party filing an affidavit of
prejudice to demonstrate that the judge is not impartial." Sharp v. Johnson, 2007 WL 3034024,
at *1 (W.D. Pa. Oct. 15, 2007). In an affidavit of bias, the affiant has the burden of making a
threefold showing: (1) the fact~ must be material and stated with particularity; (2) the facts must
be such that, if true, they would convince a reasonable person that a bias exists; and (3) the facts
must show that the bias is personal, as opposed to judicial, in nature. United States v. Thompson,
483 F.2d 527, 528 (3d-Cir. 1973); Pi-Net Int'!, Inc. v. Citizens Fin. Grp.~ Inc., 2015 WL
1283196, at *6 (D. Del. Mar. 18, 2015).
Section 455 provides that a judge is required to recuse herself "in any proceeding in
which [her] impartiality might reasonably be questioned." 28 U.S.C. § 455(a). The test for
recusal under§ 455(a) is whether a "reasonable person, with knowledge of all the facts, would
conclude that the judge's impartiality might reasonably be questioned," In re Kensington Int'!
Ltd., 368 F.3d 289, 296 (3d Cir. 2004), not "whether a judge actually harbors bias against a
party," US. v. Kennedy, 682 F.3d 244, 258 (3d Cir. 2012). Under§ 455(b)(l), a judge is
required to recuse herself "[w]here [s]he has a personal bias or prejudice concerning a party."
Under either subsection of§ 455, the bias necessary to require recusal generally must deiive
from a source outside of the official proceedings. See Liteky v. US., 510 U.S. 540, 554 (1994);
Selkridge v. United of Omaha Life Ins: Co., 360 F.3d 155, 167 (3d Cir. 2004) ("beliefs or
opinions which merit recusal must involve an extrajudicial factor").
Recusal is required in cases involving attorneys from the judicial official's former law
firm. See Committee on Codes of Conduct Advisory Opinion No. 24 (explaining that the judge
should not "participate in any case in which any attorney in the former firm is counsel until the
firm has paid the full amount the judge is entitled to receive" under the partnership agreement).
However, such recusals are usually limited to a period of two years from the time of the judicial
appointment, so this does not reasonably form a basis for _recusal in the instant case. Id. ("The
Committee recommends that judges consider a recusal period of at least two years .... ").
NOW THEREFORE, IT IS HEREBY ORDERED that the undersigned Magistrate Judge
will not request the reassignment of the above-captioned matter.
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