Bernath v. Seavey

Filing 276

ORDER denying 274 Plaintiff Daniel A. Bernath's Motion Recuse Article III Judge Chappell for Bias. Signed by Judge Sheri Polster Chappell on 11/14/2017. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DANIEL A. BERNATH,
Plaintiff,
v.

Case No: 2:15-cv-358-FtM-38CM

MARK CAMERON SEAVEY,
Defendant.
/
OPINION AND ORDER1
This matter comes before the Court on Plaintiff Daniel Bernath’s Motion to Recuse
Article III Judge Chappell for Bias. (Doc. 274). Bernath, appearing pro se, filed a
complaint against Defendants alleging various trademark infringement and fraud claims.
He now moves, once again, to disqualify the undersigned for striking some of his filings
and for ruling against him. (Doc. 274).
Under 28 U.S.C. § 455(a), a federal judge “shall disqualify h[er]self in any
proceeding in which h[er] impartiality might reasonably be questioned.” Any doubt “must
be resolved in favor of recusal.” Murray v. Scott, 253 F.3d 1308, 1310 (11th Cir. 2001).
When considering recusal, the potential conflict must be considered as it applies to the
entire case. See id. at 1310-11. A judge contemplating recusal should not ask whether
she believes she is capable of impartially presiding over the case but whether “[the

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judge’s] impartiality might reasonably be questioned.” Parker v. Connors Steel Co., 855
F.2d 1510, 1524 (11th Cir. 1988). But a judge has a duty to sit when there is no legitimate
reason to recuse as when the law and facts require. See United States v. Malmsberry,
222 F. Supp. 2d 1345 (11th Cir. 2002) (citation omitted). Moreover, § 455(b) provides
certain situations in which partiality is presumed and recusal is required. If the judge
reviews the enumerated conflicts of interest in which § 455(b) mandates recusal, and
does not find that any apply, the judge is obligated to continue to preside over the case.
See Lawal v. Winners Int’l Rests Co. Ops., Inc., No. 1:04-cv-0913-WSD, 2006 WL 898180
at *4 (N.D. Ga. Apr. 6, 2006).
Based on the foregoing and having carefully considered Bernath’s motion, the
undersigned finds no reason to recuse herself because of bias or impartiality.

The

undersigned thus will continue to preside over this case.
Accordingly, it is now
ORDERED:
Plaintiff Daniel A. Bernath’s Motion Recuse Article III Judge Chappell for Bias (Doc.
274) is DENIED.
DONE and ORDERED in Fort Myers, Florida this 14th day of November 2017.

Copies: All Parties of Record

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