YOUNGBLOOD-WEST v. AFLAC INCORPORATED, et al.

Filing 85

ORDER denying 84 Motion to Recuse. (tlp)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
LEIGH ANN YOUNGBLOOD-WEST,

*

Plaintiff,

*

vs.

*

AFLAC INCORPORATED, DANIEL P.
AMOS, WILLIAM LAFAYETTE AMOS,
JR., CECIL CHEVES, & SAMUEL W.
OATES,

*

CASE NO. 4:18-CV-83 (CDL)
*
*
Defendants.
O R D E R

(REDACTED PUBLIC COPY)

Plaintiff’s lawyer, Dimitry Joffe, has not fared well in this
Court.

In addition to adverse rulings in the present action, the

undersigned recently dismissed a shareholder derivative action
filed by Mr. Joffe against Aflac1 and several of its board members;
and in a separate action, the undersigned, over Mr. Joffe’s
objections, ordered the arbitration of claims asserted by Mr. Joffe
on behalf of Aflac sales associates.

Rather than acknowledge the

possibility that his record thus far may be due to the weakness of
his legal arguments, Mr. Joffe blames his lackluster performance
on the alleged personal bias of the undersigned.

Like the Little

League parent who blasts the umpire when his eleven-year old takes
a third strike, Mr. Joffe wants another judge.

1

Just as that umpire

In this Order, the Court refers to any of the various companies related
to AFLAC Incorporated generally as “Aflac.”

1

must remain in the game, so too must this judge.

To ensure the

impartial administration of justice, we do not permit disgruntled
attorneys to manipulate the system and shop for a new judge when
things do not go their way.

As explained in the remainder of this

Order, Plaintiff’s motion to recuse (ECF No. 69) is frivolous and
therefore denied.
PLAINTIFF’S GROUNDS FOR RECUSAL
Plaintiff seeks to recuse the undersigned pursuant to 28
U.S.C. § 144 and § 455.

She has filed an affidavit describing why

she believes the undersigned has a personal bias or prejudice
against her and in favor of the Defendants.
into four categories:

Her concerns fall

(1)she alleges that the affiliation of the

undersigned and the Amos Defendants with the so-called “Fish House
Gang” creates the appearance of partiality; (2) she maintains that
the undersigned’s family relationships with employees of AFLAC,
specifically William Donald Land, Jr., require the undersigned’s
recusal; (3) she argues that the undersigned’s spouse has an
interest that could be substantially affected by the outcome of
this

action;

and

(4)

she

points

to

various

rulings

undersigned in support of her claim of actual bias.

2

of

the

DISQUALIFICATION STANDARDS
Section 144 requires disqualification if a judge has personal
bias or prejudice either against a party or in favor of an adverse
party. 28 U.S.C. § 144.

To initiate a motion for disqualification

pursuant to § 144, the party must file a “timely and sufficient”
affidavit
that

bias

stating
or

the

facts

prejudice

and

reasons

exists.

Id.

affidavit purporting to satisfy

for

the

party’s

Plaintiff

section 144.

has

belief

filed

an

See Pl.’s Mot. for

Recusal Ex. 5, Pl.’s Aff., ECF No. 69-5 [“Pl.’s Aff.”]. Section
144 contemplates initial screening of a party’s recusal affidavit in
order

to

prevent

manipulation

disgruntled litigants.

of

the

judicial

system

by

See Davis v. Bd. of Sch. Comm’rs of Mobile

Cty., 517 F.2d 1044, 1051 (5th Cir. 1975) (“Once the motion is
filed under § 144, the judge must pass on the legal sufficiency of
the affidavit .

.

.”)2.

“Legal

sufficiency is determined as a

question of law on the basis [of] whether the affidavit sets out
facts

and

reasons

for

the

party’s

belief

that

the

judge

has

a

personal bias and prejudice against the party or in favor of the
adverse party.”

Parrish v. Bd. of Comm’rs of Ala. State Bar, 524

F.2d 98, 100 (5th Cir. 1975) (en banc).3

2

A three part test assists

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)
(en banc), the Eleventh Circuit adopted as binding precedent all
decisions of the former Fifth Circuit handed down prior to the close of
business on September 30, 1981.
3 See supra note 2.

3

the Court in determining the sufficiency of an affidavit filed
pursuant to section 144: “1. The facts must be material and stated
with particularity; 2. The facts must be such that, if true they
would convince a reasonable man that a bias exists; [and] 3. The
facts must show the bias is personal, as opposed to judicial, in
nature.” Id. (quoting United States v. Thompson, 483 F.2d 527, 528
(3d Cir. 1973)). “[J]udicial rulings alone almost never constitute
a valid basis for a bias or partiality motion.”

Liteky v. United

States, 510 U.S. 540, 555 (1994).
Section 455 is similar to § 144 except that no affidavit is
required to support a motion for recusal pursuant to section 455.
Phillips v. Joint Legislative Comm. On Performance and Expenditure
Review, 637 F.2d 1014, 1019 (5th Cir. 1981).
requires

disqualification

if

the

judge’s

Like § 144, § 455
impartiality

“might

reasonably be questioned” or if he has a personal bias or prejudice
for or against a party.

28 U.S.C. § 455(a)-(b)(1).

A judge must

also disqualify himself if “[h]e knows that he . . . or his spouse
. . . has a financial interest in the subject matter in controversy
or in a party to the proceeding, or any other interest that could
be substantially affected by the outcome of the proceeding.”
U.S.C. § 455(b)(4).

28

To determine whether an interest could be

“substantially affected,” the judge must evaluate “two variables:
the remoteness of the interest and its extent or degree.”
Moody, 755 F.3d 891, 897 (11th Cir. 2014).
4

In re

Finally, a judge must

recuse if “a person within the third degree of relationship to
[him]

. . . [i]s

a

party

to

the

proceeding,

or

an

officer,

director, or trustee of a party; [i]s acting as a lawyer in the
proceeding; [or] [i]s known by the judge to have an interest that
could be substantially affected by the outcome of the proceeding.”
Id. at § 455(b)(5)(i)-(iii).
As explained in the remainder of this Order, Plaintiff’s
affidavit and motion fail to allege sufficient facts to demonstrate
bias or prejudice; they also do not show that the impartiality of
the undersigned might reasonably be questioned.
FACTUAL AND PROCEDURAL BACKGROUND
Before addressing Plaintiff’s specific accusations, the Court
finds it helpful to describe what happened prior to Plaintiff’s
motion to recuse in order to provide context to her allegations of
bias.

Plaintiff’s counsel, Mr. Joffe, has been involved in three

other related actions in this Court.

The following discussion

describes those actions and the events that led to them.
I.

Claims By Disgruntled Sales Associates and Shareholders
AFLAC

Incorporated

supplemental

insurance

is

a

holding

products

company

through

its

that

provides

wholly

owned

subsidiary American Family Life Assurance Company of Columbus
(collectively referred to in this order as “Aflac”).

5

In addition

to the Plaintiff in this action, Mr. Joffe represents several
disgruntled former employees and current shareholders of Aflac.
He asserted derivative claims on behalf of three Aflac shareholders
against officers and directors of Aflac.

See Conroy v. Amos, No.

4:18-CV-33, 2018 WL 4208855 (M.D. Ga. Aug. 31, 2018)(hereinafter
referred to as “the derivative action”). This action was dismissed
by the undersigned.
class

action

See id.

claims

on

Mr. Joffe also has asserted putative

behalf

of

disgruntled Aflac sales associates.

seven

present

and

former

See Am. Family Life Assurance

Co. of Columbus v. Hubbard, No. 4:17-CV-246, 2018 WL 283254 (M.D.
Ga. Jan. 3, 2018)(hereinafter referred to as “the arbitration
action”). The undersigned ordered Mr. Joffe to submit these claims
to arbitration.

See id.

The following discussion describes the

relationship between the derivative action, the arbitration action
and the present action.
In December 2016, Mr. Joffe sent a notice on behalf of several
former Aflac sales associates to Aflac’s chief executive officer
and the chairman of its board, Dan Amos, to Aflac’s president and
former board member, Paul Amos II, and to Aflac’s general counsel.
Conroy, 2018 WL 4208855, at *3.

The notice made the following

specific accusations: (1) Aflac engaged in fraudulent recruiting
by promising potential sales associates they could make more money
than

was

actually

possible;

(2) Aflac

manipulated

its

key

operational metrics to artificially inflate its potential earnings
6

and growth; (3) Aflac engaged in fraudulent underwriting through
various

means

designed

to

artificially

inflate

its

earnings;

(4) Aflac engaged in fraudulent accounting practices by improperly
extending revenue reporting periods; and (5) Aflac regional sales
coordinators

and

market

coordinators

stole

sales

associates’

commissions (collectively, the “Fraud Allegations”).

Id.

The

associates also alleged that Aflac retaliated against them for
informing management of the Fraud Allegations.

Id.

They asked

Aflac to waive their arbitration agreements and allow them to
pursue related claims against Aflac in court.

Id.

In-house counsel for Aflac informed Mr. Joffe by letter that
Aflac would investigate the Fraud Allegations.

Id.

Less than a

month later, Aflac informed him that that it unequivocally denied
the

Fraud

Allegations

and

demanded

that

the

individually submit their disputes to arbitration. Id.

associates
Ignoring

the arbitration agreements, Joffe sent Aflac a draft putative class
action complaint asserting several claims against Aflac on behalf
of Aflac sales associates and demanded that Aflac settle the
claims.

Hubbard, 2018 WL 283254, at *2.

Aflac anticipatorily

filed a petition in state court for an order compelling arbitration
according to the sales associates’ arbitration agreements.
*1.

Id. at

The sales associates removed the case to this Court, and the

undersigned found that the arbitration agreements were enforceable

7

and ordered the associates to submit their claims to arbitration
pursuant to the Federal Arbitration Act, 9 U.S.C. § 1 et seq.

Id.

Three months after Aflac denied the Fraud Allegations and
demanded

that

the

sales

associates

submit

their

claims

to

arbitration, Mr. Joffe sent a notice to Aflac’s outside directors
that was similar to the one he had previously sent to Dan and Paul
Amos and Aflac’s general counsel.

Conroy, 2018 WL 4208855, at *3.

One of the outside directors, on behalf of all of the outside
directors, informed Joffe that they were already aware of the Fraud
Allegations and had been informed of management’s due diligence
efforts.

Id.

The response letter also informed Mr. Joffe that

Aflac had retained outside counsel to represent Aflac in relation
to

the

dispute

notice

and

directed

him

correspondence to the outside counsel.
that

the

defendants

in

the

derivative

to

Id.

address

future

Mr. Joffe alleged

action

breached

their

fiduciary duties to Aflac by failing to adequately investigate the
Fraud Allegations and by failing to implement controls to detect
and prevent the alleged wrongful conduct.

Id.

Before Mr. Joffe notified Alfac’s outside directors of his
clients’ Fraud Allegations, Aflac published its FY2016 Annual
Report.

Id. at *4.

disclose

the

published

its

Fraud
2017

In that report, Aflac allegedly failed to
Allegations.
proxy

Id.

solicitation

8

In
to

March

2017,

Aflac

shareholders,

which

assured shareholders that Aflac was in good hands with the current
board members and recommended that shareholders reelect Aflac’s
directors to the board.

Id.

The proxy likewise allegedly made no

disclosure of the Fraud Allegations.

Id.

On May 1, 2017,

shareholders reelected Alfac’s board members.

Id.

Mr. Joffe

claimed that the FY2016 Annual Report and 2017 proxy were false
and misleading in violation of 15 U.S.C. §§ 78j and 78n and SEC
Rules 10b-5 and 14a-9 because they failed to disclose his client’s
Fraud

Allegations

operations.

and

their

potential

effect

on

Aflac’s

Id.

In June 2017, Paul Amos II notified Aflac’s board that he
would be resigning as a director of Aflac and as president of Aflac
on July 1, 2017.

Id.

Paul Amos allegedly sold over 200,000 of

his Aflac shares a few days later.

Id.

Mr. Joffe alleged that

Paul Amos committed insider trading under 15 U.S.C. § 78t-1 because
he traded on material, nonpublic information—namely, knowledge of
the sales associates’ Fraud Allegations.

Id.

Pursuant to its

director-authorized stock repurchase program, Aflac purchased some
of its own shares the day after Paul Amos’s stock sale.

Id.

Mr.

Joffe claims that Aflac paid a higher price for its shares than it
otherwise would have paid had it been aware the prices were
inflated.

Id.

9

Shortly after Paul Amos’s stock sale, Mr. Joffe sent Aflac’s
counsel his first formal demand (“First Demand”). Id. This demand
alleged that Paul Amos committed insider trading and breached his
fiduciary duty to AFLAC when he sold his stock.

Id.

It demanded

that Aflac bring a lawsuit against Paul Amos for disgorgement and
other damages.

Id.

In response, Aflac’s board created a special

litigation committee composed of three outside directors (the
“SLC”) to investigate the claims against Paul Amos and respond to
Mr. Joffe’s First Demand. Id.

The SLC eventually determined that

pursuing the claims was not in Aflac’s best interest and rejected
Mr. Joffe’s demand.

Id.

Mr. Joffe then circulated a draft complaint to Aflac’s outside
counsel that named Dan Amos, Paul Amos II, and four Aflac directors
as defendants (“Second Demand”).

Id.

In the Second Demand, Mr.

Joffe asserted breach of fiduciary duty claims, securities and
proxy fraud claims, an unjust enrichment claim against Paul Amos
arising from his stock sale, and the insider trading claim against
Paul Amos that the SLC had previously rejected.

Id.

Because the

draft complaint presented the breach of fiduciary duty, unjust
enrichment, and securities and proxy fraud claims to the SLC for
the first time, the SLC considered the draft complaint to be a
second formal demand and undertook to investigate.

10

Id.

Before the SLC had formally responded to his Second Demand,
Mr. Joffe filed his shareholder derivative action in the Southern
District of New York.

Id. at *5.

Less than a month later, The

Intercept published an online article detailing Aflac’s conduct
alleged in Mr. Joffe’s client’s complaint, including the Fraud
Allegations.

Id.

The next day, Aflac’s stock dropped 7.5%.

Id.

During the trading day, Aflac published a press release denying
the allegations in the article and informing the market that Mr.
Joffe’s allegations were meritless.

Id.

Aflac then filed a Form

8-K with the SEC that reiterated Aflac’s position, and it published
the report the SLC generated in its investigation of Mr. Joffe’s
First Demand.
Mr.

Joffe

Id.
subsequently

amended

his

derivative

action

to

include additional claims of securities fraud for alleged false
misstatements and omissions in the press release and the Form 8-K
(“Third Demand”).

Id.

The SLC considered the amended complaint

to be a third formal demand and acted accordingly.

Id.

About a

week later, the SLC issued its second report, rejecting Plaintiffs’
Second Demand.

Id.

The New York derivative action was then

transferred to this Court. Id.
Defendants in the derivative action moved to dismiss Mr.
Joffe’s amended complaint pursuant to O.C.G.A. § 14-2-744, which
allows a corporate defendant to seek termination of a derivative

11

suit

based

upon

the

recommendation

of

corporation's independent board members.

a
Id.

committee

of

the

The undersigned

granted the motion to dismiss on August 31, 2018 in a thirty page
written order. Id.
Mr. Joffe did not file a motion to recuse the undersigned in
the derivative action.

But he did drop a footnote in a brief

inviting the undersigned to evaluate whether he should recuse due
to the undersigned's affiliation with the so-called Fish House
Gang and family relationships.

Id. at *1.

Although no motion to

recuse was filed, the undersigned found it necessary to clear up
any suggestion of bias and explained in the written order granting
Defendant's

motion

to

dismiss

why

undersigned's disqualification.
the

undersigned

dismissed Mr.

no

basis

Id. at *1-2.

Joffe's

existed

for

the

Three weeks after

shareholder

derivative

action, Mr. Joffe filed his motion for recusal in the present
action. Pl.'s Mot. for Recusal, Youngblood-West v. Amos, No. 4:18CV-83 (M.D. Ga. Filed May 1, 2018), ECF No. 69.
II.

Claims Arising from Dr. William Amos's Alleged
and Ms. Youngblood-West's Alleged

As previously noted,

the undersigned ordered Mr. Joffe to

arbitrate the sales associates' claims instead of pursue a putative
class action.

Hubbard, No. 4:17-cv-246, 2018 WL 283254 (M.D. Ga.

January 3, 2018).

The undersigned denied Mr. Joffe's motion to
12

reconsider that order on January 25, 2018.
WL 283254, ECF No. 23.

Order, Hubbard, 2018

Less than sixty days after the undersigned

denied that motion, Mr. Joffe allegedly sent a letter to Aflac’s
private counsel stating that

Compl. Ex. C, Letter from
Dimitry Joffe to Lisa Cassilly and Mary Gill 1 (Mar. 16, 2018),
ECF No. 2-3 (“Demand Letter”), Amos v. Youngblood-West, No. 4:18CV-68 (M.D. Ga. Filed Apr. 16, 2018). Mr. Joffe further alleged
that

Id. Mr. Joffe informed Aflac’s counsel in the letter that he
represented Leigh Ann Youngblood-West,
Id.
13

at

2.

Mr.

Joffe

acknowledged in the letter that Ms. Youngblood-West had entered
into a “global settlement”
and that she was represented at that time by attorney
Samuel Oates for whom she worked as a legal secretary at the time.
Id. at 4.

Mr. Joffe failed to mention in his letter that Ms.

Youngblood-West

retained

other

counsel

in

1993

to

pursue

additional claims
. Compl. ¶ 155, Youngblood-West v. Amos,
No. 4:18-CV-83 (M.D. Ga. Filed May 1, 2018), ECF No. 26.

She

signed releases that included confidentiality agreements when she
settled her claims in 1992 and in 1993.
Agreement,

ECF

No.

26-3;

Am.

Compl.

Id. Ex. C, 1993 Settlement
Ex.

Agreement, ECF No. 26-2.
According

to

Mr.

Joffe’s

14

letter,

B,

1992

Settlement

Mr. Joffe concludes his letter by informing Aflac’s counsel
that he was retained by Ms. Youngblood-West in 2018 “to prosecute
her

claims against Aflac” and that she had

instructed him “to

Id.

Mr. Joffe then states, “[i]n advance of the

filing of that complaint, I am authorized by Ms. Youngblood-West
to make a settlement demand for

. . . to achieve an

amicable resolution of this matter, if consummated within ten days
from the date of this letter.”

Id. at 6-7.

Aflac’s counsel responded to Mr. Joffe’s demand on March 23,
2018 on behalf of Aflac and Dan Amos.

Mot. for Sanctions Ex. B,

Letter from Mary Gill to Dimitry Joffe 1 (Mar. 16, 2018), ECF No.
21-3, Youngblood-West v. Amos, No. 4:18-CV-83 (M.D. Ga. Filed May
1, 2018). The response began by describing Mr. Joffe’s allegations
as “baseless and defamatory” with “no factual or legal basis
whatsoever to support these allegations as they relate to Aflac
and/or Mr. Amos.”

Id.

Counsel for Aflac and Dan Amos explained

that

Counsel further
15

informed

Mr.

Joffe

that

neither

Aflac

nor

Dan

Amos

had

any

knowledge of Ms. Youngblood-West’s allegations, and neither of
them participated in any settlement of her claims.

Id.

The

letter put Mr. Joffe on notice that “[t]here is no good faith basis
to proceed with these claims [against Aflac and/or Dan Amos]

Id.

The response ends with “Suffice it to say, Aflac rejects

your offer of settlement for these patently false and baseless
claims.”

Id. at 2.

Undeterred, Mr. Joffe emailed Aflac’s counsel a copy of a
draft complaint on Saturday April 14, 2018 at 5:28 P.M., stating
“Counsel—this is ready for filing first thing Monday am.”

Compl.

Ex. D, Email from Dimitry Joffe to Jim Grant (Apr. 14, 2018), ECF
No. 2-4, Amos v. Youngblood-West, No. 4:18-CV-68 (M.D. Ga. Filed
Apr. 16, 2018). Mr. Joffe included a cryptic post script: “I would
quote Matthew 5:25 but your clients should know it by heart.”4 Id.
Mr. Joffe sent a follow-up email to counsel the next day,
Sunday, April 15, at 12:13 P.M.

Compl. Ex. F, Email from Dimitry

Joffe to Jim Grant (Apr. 15, 2018), ECF No. 2-6, Amos, No. 4:18-

4

According to the Gospel of Matthew, Jesus reportedly said, “[a]gree
with thine adversary quickly, whiles thou art in the way with him; lest
at any time the adversary deliver thee to the judge, and the judge
deliver thee to the officer, and thou be cast into prison.” Matthew
5:25 (King James).

16

CV-68.

In that email, he stated, “Counsel—I may not be able to

check my emails for the rest of today but you can always reach me
on my mobile [phone].

Your clients have 12 hours left to decide

whether they wish to have this dispute resolved in court.” Id.
Thus, Mr. Joffe threatened to file the lawsuit electronically some
time after midnight and before the Court opened for regular hours
on Monday morning.
Dr. Amos retained different counsel than Aflac.

That counsel

determined that Mr. Joffe’s correspondence to Aflac’s counsel
violated the nondisclosure agreements executed by Ms. YoungbloodWest

over

25

years

earlier.

To

prevent

the

disclosure

of

confidential information covered by those agreements, Dr. Amos’s
counsel filed a Verified Complaint and Emergency Ex Parte Motion
for Temporary Restraining Order to prevent Youngblood-West from
filing the complaint on the public docket and to prevent any
dissemination of the information that was the subject of the prior
settlement/nondisclosure agreements.

Amos v. Youngblood-West, No.

4:18-CV-68 (M.D. Ga. Filed Apr. 16, 2018)(hereinafter “Dr. Amos
Nondisclosure Agreement Action”).

Given the urgency of the

situation, counsel for Dr. Amos contacted the undersigned at home
late on Sunday evening of April 15th to advise the undersigned of
its action and the short time period the Court had to grant a
temporary restraining order given Mr. Joffe’s threat to file his
complaint shortly after midnight.
17

Rather than decide the matter

ex parte, the undersigned recalls having counsel for Dr. Amos
contact Mr. Joffe so that a conference call could be scheduled
that evening.

To the best of the undersigned’s recollection, a

short conference call was held with Mr. Joffe and Dr. Amos’s
counsel in which the undersigned advised them that he would hold
a hearing the next morning where Mr. Joffe and Dr. Amos’s counsel
could be heard.

After hearing from both sides the next morning,

the Court issued a preliminary injunction against Plaintiff and
Mr. Joffe.

That order was subsequently memorialized in writing.

Order, Amos, No. 4:18-CV-68, ECF No. 3.

It restrained Mr. Joffe

and Ms. Youngblood-West as follows:
A.
[Ms. Youngblood-West], and any person acting on her
behalf or in concert with her (including her current
counsel), shall file under seal any document that
relates to the subject matter of the draft
, including, without limitation, the draft
any complaint similar to it, and
any corresponding exhibits;5
B.
[Ms. Youngblood-West], and any person acting on her
behalf or in concert with her (including her current
counsel), shall not disseminate, disclose, or discuss
publicly the subject matter of the draft
or any other documents sealed and restricted
by this Court, except that
and [Ms. Youngblood-West] is
not prohibited from discussing these matters with her
current counsel;

5

“Under seal,” as used in this Order, meant that the filing must not be
available to the public without prior permission from the Court or the
government agency with whom the filing is made.

18

C.
Access
to
[Dr.
Amos’s]
Verified
Complaint
(including the Exhibits), [Dr. Amos’s] Emergency Ex
Parte Motion for a Temporary Restraining Order, and any
further filings in this action shall be restricted such
that the filings are only accessible by the parties to
this action, their counsel of record, and court
personnel.
Id. at 3-4. Mr. Joffe subsequently filed his complaint under
seal in this Court on May 1, 2018.

See Compl., Youngblood-West v.

Amos, No. 4:18-CV-83 (M.D. Ga. filed May 1, 2018), ECF No. 1
(hereinafter “Youngblood-West Action” or “present action”).

And

he filed a motion to dismiss Dr. Amos’s nondisclosure agreement
action in case number 4:18-CV-68.
No. 4:18-CV-68, ECF No. 15.

Def.’s Mot. to Dismiss, Amos,

In an order dated August 7, 2018, the

Court denied that motion to dismiss, finding that the settlement
agreements

were

valid

contracts

confidentiality provisions.
19.

that

contained

enforceable

Order, Amos, No. 4:18-CV-68, ECF No.

In that order, the Court also stated the following:
Having decided today that the agreements are enforceable
as alleged, the Court finds that a strong interest exists
in honoring the parties’ confidentiality agreements by
restricting public access to these proceedings.
The
Court further finds, notwithstanding that interest, that
there is a strong public interest in public access to
judicial proceedings, particularly orders of the Court.
Balancing these competing interests, the Court directs
that this case be unsealed such that the existence of
this action, the identities of the parties, and today’s
Order by the Court shall be shown on the public docket.
However, until further order of the Court, all previous
and future filings in this action shall be maintained
and filed in a restricted manner such that they are
accessible only by the parties, their counsel, and
appropriate court personnel.

19

Id. at 15 n.5. The day after that order was entered, the Court
entered a show cause order directing the parties in Dr. Amos’s
nondisclosure agreement action and in the Youngblood-West action
to show cause as to whether filings in these two cases should
remain restricted from public access. Order, Amos, No. 4:18-CV68, ECF No. 20; Order, Youngblood-West, No. 4:18-CV-83, ECF No.
37.
Shortly after the cases were partially unsealed, counsel
contacted the Clerk’s Office and informed administrative personnel
that Dr. Amos intended to file a motion for reconsideration
regarding the Court’s partial unsealing of the cases and thus
requested that the case be re-sealed until that motion could be
filed.
docket:

The following remark by a docket clerk is indicated on the
“[i]n

light

of

recent

telephonic

inquiries

and

in

anticipation of motions for reconsideration/clarification, the
cases are remaining sealed pending further Order of the Court.”
Docket Remark, Amos, No. 4:18-CV-68.

On that same day, Dr. Amos’s

counsel filed an “Emergency Motion for Reconsideration.”
Recons., Amos, No. 4:18-CV-68, ECF No. 21.

Mot. for

In that motion,

counsel sought to be heard on whether the filings should remain
sealed, and if not, the extent to which they should be unsealed.
Id. at 2.
Two days later, the Court granted in part and denied in part
the motion for reconsideration.

Order, Amos, No. 4:18-CV-68, ECF
20

No.

23;

Order,

Youngblood-West,

No.

4:18-CV-83,

ECF

No.

40.

Specifically, the Court stated “[t]he Court orders that these
actions shall be partially unsealed, until the parties have had an
opportunity to respond to the Court’s previously issued show cause
order and the Court can determine whether the remainder should be
unsealed.”

Id. at 2.

The Court directed that the existence of

the actions and the case numbers shall appear on the public docket,
but the names of the parties shall be shown as “Sealed v. Sealed.”
Id.

The Court further ordered that the following documents would

be accessible to the public until further order of the Court: (1)
a redacted copy of the Court’s show cause order; (2) an unredacted
copy of the Court’s order granting in part and denying in part the
motion for reconsideration and partially unsealing the action; and
(3) a redacted copy of the order denying Youngblood-West’s motion
to dismiss in case number 4:18-CV-68. Id. at 2-3.
The Court eventually consolidated Dr. Amos’s nondisclosure
agreement action, case number 4:18-CV-68, with the Youngblood-West
action, case number 4:18-CV-83, on September 6, 2018, over Mr.
Joffe’s objection.
No. 57.

Order, Youngblood-West, No. 4:18-CV-83, ECF

Dr. Amos’s nondisclosure agreement claims were treated as

counterclaims in the Youngblood-West action.

After receiving

briefing from the parties, the Court entered an order on September
7, 2018 addressing the issue of whether and to what extent filings
should remain sealed.

Order, Youngblood-West, No. 4:18-CV-83, ECF
21

No. 59.

The Court established a redaction protocol in that order.

Id.
In the Youngblood-West action, Mr. Joffe alleges on behalf of
his client that

.
.

He also alleges certain related

Am. Compl. ¶ 1, Youngblood-West, No. 4:18-CV-83, ECF

No. 26. Defendants seek dismissal of Plaintiff’s complaint because
it fails to state a plausible claim for relief against any of the
Defendants, the claims are barred by the statute of limitations,
and the claims against Dr. Amos and Cheves have been released.
Mots. to Dismiss, Youngblood-West, No. 4:18-CV-83, ECF Nos. 3234.

Those motions are presently ripe for consideration by the

Court.

Defendant Oates had not been served with the Complaint at

the time the other Defendants filed their motions to dismiss.
After all of the briefing had been completed on the motions
to dismiss and the Court had spent considerable time reviewing
them, Mr. Joffe filed the current motion to recuse the undersigned
on September 21, 2018.

Mot. for Recusal, Youngblood-West, No.

4:18-CV-83, ECF No. 69.

The Court must decide the motion to recuse

before deciding the motions to dismiss.

22

DISCUSSION
With

this

background

in

mind,

the

Court

addresses

the

Plaintiff’s recusal accusations.
“Fish House Gang” Affiliation
Plaintiff states in her affidavit that the Amos and Land
families are among “the founders and prominent members of the socalled Fish House Gang—a secretive, exclusive, ‘by invitation
only,’ highly coveted ‘singular opportunity to network’ for the
powerful members of the Georgia establishment.”

Pl.’s Aff. ¶ 17.

In support of this conclusory statement, she cites to newspaper
articles and other published writings.

Id. at ¶¶ 17-26.

Those

writings focus upon the undersigned’s great-uncle, John Land, who
was a Superior Court Judge for the Chattahoochee Judicial Circuit
and considered by many to be the leader of the Fish House Gang.
Id.

Plaintiff’s

affidavit

also

quotes

an

excerpt

from

a

publication on Aflac co-founder John Amos that states that John
Amos “founded” the Fish House Gang.

Id. at ¶ 20.

The only mention

of the undersigned in any of the articles is that the undersigned
attended some of the Fish House Gang meetings.

Id. at ¶ 21.

The articles are a fascinating and nostalgic look at a
powerful Superior Court Judge from a prior era.

But that judge

has been dead for seven years; and he had been retired for twenty-

23

three years when he died at the age of 93.6

See id. at 24 (citing

a 2011 article entitled “Powerful Judge John Henry Land Dies at
Age 93”). The undersigned does not deny that his great-uncle John
had

a

personal

founders.

friendship

with

John

Amos,

one

of

the

Aflac

But John Amos died in 1990 at the age of sixty-six.7

While the articles cited in Plaintiff’s affidavit fuel Plaintiff’s
speculation that a close connection existed between John Land,
John Amos, and the Fish House Gang, those affiliations ended in
1990 upon the death of John Amos.

And John Land’s affiliation

with the Fish House Gang would have ended no later than his death
in 2011.
The

present

question

is

whether

the

undersigned’s

affiliation with the modern version of the Fish House Gang (seven
years after his great-uncle’s affiliation ceased and twenty-eight
years

after

John

Amos’s

affiliation

ceased)

would

cause

a

reasonable person to believe that the undersigned could not be
impartial in an action involving Aflac, Dan Amos, William Amos,
Cecil Cheves, and Samuel Oates. In an order dismissing Mr. Joffe’s

6

John Land died on November 30, 2011 at the age of 93. He served as a
Superior Court judge for the Chattahoochee Judicial Circuit from 1964
to January 1, 1989 when he retired.
He was the brother of the
undersigned’s grandfather.
7 See Laura McCarty, John Amos (1924-1990), New Georgia Encyclopedia
(Mar. 10, 2006), https://www.georgiaencyclopedia.org/articles/businesseconomy/john-amos-1924-1990.

24

shareholder

derivative

action,

the

undersigned

described

the

modern Fish House Gang as follows:
This group actually includes approximately two-hundred
invitees who gather three or four times a year to enjoy
fried fish, french fries, hushpuppies, coleslaw, and
each other’s company. The undersigned has been invited
to these functions over the years and has attended with
some regularity.
The group conducts no official
business, charges no membership fees, and has no stated
organizational purpose. The attendees pay for the cost
of their own meals.
Conroy v. Amos, No. 4:18-CV-33, 2018 WL 4208855, at *1 (M.D.
Ga. Aug. 31, 2018). Plaintiff and her counsel imply that Dan Amos,
William Amos, and/or Cecil Cheves also attend Fish House Gang
functions.

According to the undersigned’s review of the most

recent invitee list, none of them are on the list.

Although they

may have attended one or more of these fried-fish suppers in the
past, the undersigned has no specific recollection of them having
done so.8
The

applicable

recusal

standards

do

not

require

disqualification based upon the undersigned’s attendance at these
fish suppers.

The test under section 455(a) is “whether an

objective, disinterested, lay observer” knowing the grounds on
which recusal is sought “would entertain a significant doubt about
the judge’s impartiality.”

Parker v. Connors Steel Co., 855 F.2d

8

Defendant Samuel Oates does appear on the recent invitee list, but the
undersigned has no specific recollection of his recent attendance.

25

1510, 1524 (11th Cir. 1988).

As noted, the undersigned does not

have any recollection of the Amos Defendants or Defendant Cheves
even attending these events, and their names do not appear on the
recent invitee list.
But even if they did attend these suppers, the undersigned’s
attendance would not warrant disqualification in this action.
Attendance at social events that a party to litigation may have
also attended does not create the appearance of partiality or bias
and is not a legitimate basis for recusal.

See Parrish v. Bd. of

Comm’rs of Ala. State Bar, 524 F.2d 98, 101, 104 (5th Cir. 1975);9
Code of Conduct for United States Judges Canon 4 cmt. (Judicial
Conference

2014)

(“Complete

separation

of

a

judge

from

extrajudicial activities is neither possible nor wise; a judge
should not become isolated from the society in which the judge
lives.”).
455(b)(1),

Nor does it provide a basis for recusal under §§ 144 or
which

ask

whether

the

undersigned

personal bias or prejudice concerning a party.

actually

has

a

United States v.

Amedeo, 487 F.3d 823, 828 (11th Cir. 2007).
Perhaps if John Land and his good friend John Amos were
miraculously resurrected and John Land was reincarnated as a United

9

In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981)
(en banc), the Eleventh Circuit adopted as binding precedent all
decisions of the former Fifth Circuit handed down prior to the close of
business on September 30, 1981.

26

States District Court judge and John Amos was a party to this
litigation, then great-uncle John may should consider recusal.
But the undersigned is aware of no principle of law that would
result in the undersigned inheriting his great-uncle’s alleged
bias in favor of John Amos, and then transforming that bias to a
bias in favor of John Amos’s nephews.
Mr. Joffe’s Fish House Gang

allegations

may

make for

a

colorful tale about old-fashioned politics in a by-gone era, but
they are frivolous insofar as he relies upon them as a basis for
the undersigned’s disqualification.
Family Relationships
In

her

affidavit,

Plaintiff

states

generally

that

the

undersigned has family ties with the Amos Defendants.

She makes

no

and

specific

identifies

allegations
Aflac

as

employee

disqualifying relative.

to

what

William

those
Donald

ties

are

Land,

Jr.

only
as

a

The undersigned does not believe that he

has ever met William Donald Land, Jr. and first learned of his
employment at Aflac when it was brought to his attention by Mr.
Joffe in this litigation. Upon learning of his alleged involvement
in this action as an employee in the Aflac legal department, the
undersigned consulted with the Land family genealogist and has
learned that William Donald Land, Jr. is the undersigned’s fourth
cousin,

once

removed.

According
27

to

the

undersigned’s

calculations, this places William Donald Land, Jr. at the 11th
degree of relationship to the undersigned.
A judge must recuse when “a person within the third degree of
relationship” to the judge is or could be involved in a proceeding
in certain ways or has “an interest that could be substantially
affected by the outcome of the proceeding.” 28 U.S.C. § 455(b)(5).
Even if William Donald Land, Jr. is somehow involved in these
proceedings, his degree of relationship to the undersigned is a
distant eight degrees beyond the prohibited boundary. That diluted
blood line combined with the undersigned’s personal unfamiliarity
with his distant relative makes him more stranger than “kissing
cousin.”10

The undersigned is also unaware of any other relative

who is within the prohibited degree of relationship and involved
in

these

proceedings

or

who

has

an

interest

that

could

be

substantially affected by the outcome.
Spouse’s Employment With
Page, Scrantom, Harris & Chapman, P.C.
In her affidavit, Plaintiff alleges that the undersigned’s
wife was a partner in the Page, Scrantom, Harris & Chapman, P.C.
law firm at the time that Plaintiff signed the two releases that

10

“Kissing Cousin” has been defined as “a person and especially a
relative whom one knows well enough to kiss more or less formally upon
meeting.”
Kissing Cousin Definition, Merriam-Webster Dictionary,
available at www.merriam-webster.com/dictionary/kissing%20cousin.

28

Defendants Dr. Amos and Cheves rely upon in part in their pending
motions to dismiss this action.

One of these releases includes

Page, Scrantom, Harris & Chapman, P.C. (“Page Scrantom”) and all
of its shareholders, officers, and employees as releasees.

Mr.

Joffe, therefore, maintains that the undersigned’s wife, as a
former employee and shareholder of Page Scrantom at the time the
releases were executed, has a substantial interest in how the Court
rules on the enforceability of those releases.

The interest of

the undersigned’s wife in the outcome of that issue, or any other
issue in these proceedings, is not simply insubstantial and remote—
it is nonexistent. Mr. Joffe’s suggestion otherwise is misleading.
Plaintiff specifically released Cecil Cheves, William Amos,
Samuel Oates, and Page Scrantom.

See Am. Compl. Ex. C, 1993

Settlement Agreement 1, ECF No. 26-3.

The general release also

included language releasing any employee or shareholder of Page
Scrantom.

Id.

But Plaintiff has made no allegation that the

undersigned’s spouse had anything to do with the conduct giving
rise to the claims that were released.

She was simply released

incidentally along with every other employee of the firm at the
time, whether they knew anything about the matter or not.
Presumably,

Mr.

Joffe

contends

that

although

the

undersigned’s wife left Page Scrantom around 1994, she somehow
presently has a substantial interest that could be affected by the

29

C

outcome of these proceedings due to her being
releasee.

an incidental

Mr. Joffe carelessly alleges that the undersigned’s

wife was a “partner” in Page Scrantom based upon her name appearing
among the list of lawyers on Page Scrantom letterhead from that
era.

But that same letterhead that Mr. Joffe relies on clearly

indicates that Page Scrantom was a professional corporation, not
a general partnership.

Pl.’s Mot. for Recusal Ex. A., Letter from

Page Scrantom (Sept. 29, 1992), ECF No. 69-1; Pl.’s Mot. for
Recusal Ex. B, Letter from Page Scrantom (Mar. 16, 1993), ECF No.
69-2.

Thus, the letterhead shows only that the undersigned’s wife

may have been a shareholder in the Page Scrantom professional
corporation.
While

lawyers

who

are

shareholders

in

professional

corporations sometimes refer to their fellow lawyer shareholders
casually as “partners,” a significant legal difference exists
between a shareholder lawyer in a professional corporation and a
partner in a general partnership. Under Georgia law, a shareholder
in a law firm professional corporation is not legally liable for
the

conduct

of

other

professional corporation.

fellow

lawyers/shareholders

in

the

See Henderson v. HSI Fin. Servs., Inc.,

471 S.E.2d 885, 886-87 (Ga. 1996)(holding that shareholders in a
professional

corporation

law

firm

professional

misconduct

of

a

were

fellow

not

liable

lawyer

for

the

shareholder).

Therefore, even if the release that included Page Scrantom, its
30

shareholders, and employees was held to be unenforceable, such a
ruling would have no legal or practical impact on the undersigned’s
wife, an incidental releasee.

She is not alleged to have engaged

in any conduct involving the plaintiff that would subject her to
personal liability.

And, under Georgia law, she could face no

liability for the conduct of then fellow-shareholder Cheves or any
of

the

other

lawyers

.

Furthermore, since she left the firm in 1994, she has no present
shareholder

interest

in

the

Page

Scrantom

professional

corporation, and thus has no capital contribution at risk.11

The

undersigned’s spouse simply has no interest that could be affected
by

these

proceedings.

otherwise.

No

reasonable

person

could

conclude

And had Mr. Joffe exercised slight diligence before

having his client execute a misleading affidavit, he would have
reached the same conclusion.
Allegations of Actual Bias
Mr.
bias.”

Joffe

makes

several

allegations

of

“actual

personal

Most of those accusations relate directly to rulings that

the Court has made in this litigation and thus cannot support a
personal bias claim.

See Liteky v. United States, 510 U.S. 540,

555 (1994); see also Parrish v. Bd. of Comm’rs of Ala. State Bar,

11

The Court notes that neither Page Scrantom, nor any of its shareholders
or employees, except former shareholder and employee Cheves, has been
named as a party in the present litigation.

31

524 F.2d 98, 100 (5th Cir. 1975) (en banc).

Therefore, the

undersigned does not address them here.

But Mr. Joffe also makes

baseless

of

and

misleading

accusations

improper

ex

parte

communications, and those allegations cannot be left unanswered.
Mr. Joffe seeks to cast a cloud over the undersigned’s
impartiality
suspicious

by

ex

spinning

parte

entirely

communications.

appropriate
These

conduct

as

accusations

are

preposterous, and Mr. Joffe should have known better before he
recklessly included them in his client’s affidavit.

First, he

points to the initiation of this litigation when the undersigned
was contacted by telephone at home late on a Sunday evening by a
desperate lawyer representing Dr. Amos who obviously did not want
to disturb a federal judge at home, much less late on a Sunday
evening.

Dr. Amos’s counsel was faced with the threat from Mr.

Joffe that sometime after midnight and before the Court opened
officially for business Monday morning, Mr. Joffe was going to
file electronically a complaint on the public docket that included
allegations covered by a nondisclosure agreement signed by Mr.
Joffe’s client over 25 years ago. Counsel for Dr. Amos certainly
had

a

good

faith

restraining order.

basis

for

seeking

an

ex

parte

temporary

Mr. Joffe should be aware that such ex parte

temporary restraining orders are authorized by clearly established
law.

See Fed. R. Civ. P. 65(b) (“The court may issue a temporary

restraining order without written or oral notice to the adverse
32

party or its attorney . . .” (emphasis added)).

No reasonable

member of the bar would have a good faith belief that Dr. Amos’s
counsel’s attempt to seek a temporary restraining order was an
improper ex parte communication.
Moreover, the events following Dr. Amos’s counsel’s contact
further

demonstrate

accusation.

the

frivolous

nature

of

Mr.

Joffe’s

Rather than decide the motion ex parte, as the

undersigned could have done consistent with applicable law, the
undersigned insisted that Dr. Amos’s counsel get Mr. Joffe on the
line that night.

The undersigned then held a telephone conference

from his home late Sunday evening with both Dr. Amos’s counsel and
Mr. Joffe.

The Court informed them that they both would be heard

first thing the next morning.
a hearing.

That Monday morning, the Court held

After hearing from both sides, the Court entered a

preliminary injunction directing that Mr. Joffe file his complaint
under seal instead of on the public docket.

Suggesting that

anything about this process amounted to inappropriate ex parte
communication is frivolous and misleading.
Mr.

Joffe’s

communication

is

other

allegation

similarly

of

groundless.

improper
Mr.

ex

Joffe

parte
accuses

Defendants’ counsel of making improper ex parte contacts with the
Court when counsel made telephonic inquiries of court personnel.
In support of this accusation, Mr. Joffe relies upon the following

33

remark

by

telephonic

a

docketing

inquiries

clerk:
and

“REMARK:

in

reconsideration/clarification,

anticipation
the

cases

pending further Order of the Court.”
4:18-CV-68.

In

are

light
of

of

recent

motions

remaining

for

sealed

Docket Remark, Amos, No.

The entry includes the initials of the docket clerk

who made the entry.

Id.

Mr. Joffe first suggests that this entry was suspiciously
deleted from the docket.

This suggestion is simply false.

appears on the docket today.

It

But since it was an internal

administrative entry by a docket clerk, it is only accessible to
court personnel consistent with the policies and procedures of the
clerk of court. The docket does note, however, that when the entry
was made by the docket clerk, it was served upon counsel for the
parties, including Mr. Joffe.

Any suggestion that court personnel

tried to hide the information contained in the docket clerk’s
remark

or

improperly

deleted

a

docket

entry

is

false

and

misleading.
As to the suggestion that the re-sealing of the case was
somehow

improper,

Mr.

Joffe

again

resorts

interpretation of what actually happened.

to

a

misleading

The Court issued an

order partially unsealing the case at approximately 5:00 P.M. on
August 7, 2018.

The next morning, while the undersigned was in

Montgomery, Alabama holding court as a visiting judge, counsel for

34

Dr. Amos contacted the clerk’s office notifying the docket clerk
that they intended to file a motion for reconsideration regarding
the partial unsealing and requesting that the case remain under
seal until their motion for reconsideration could be heard.
docket

clerk

promptly

re-sealed

the

cases

The

administratively.

Shortly after that was done, Dr. Amos’s counsel sent the following
email to the undersigned’s courtroom deputy clerk, which he also
sent to Mr. Joffe:

“Dear Ms. Long—I represent plaintiff.

Last

evening, I received the Court’s order denying defendant’s motion
to dismiss and partially unsealing the record in this case.
understand the case was re-sealed this morning.

I

We would like to

schedule a conference call with the Court and opposing counsel to
discuss this issue this afternoon.

We respectfully ask that

plaintiff be heard before any portion of this case is unsealed.
If necessary, we will file an emergency motion for reconsideration
this afternoon with the Court.”

The undersigned subsequently

decided the motion for reconsideration after hearing from both
sides.
the

There was no ex parte contact with the undersigned about

merits

substantive

of

the

issues

motion
in

the

for

reconsideration

case.

The

status

or
quo

any
was

other
simply

maintained administratively until the Court could hear from both
sides on the motion for reconsideration.
that

this

conduct

does

not

amount

35

Mr. Joffe should know
to

improper

ex

parte

communication.

It is certainly not evidence of personal bias on

the part of the undersigned.
The remaining claims in Plaintiff’s affidavit are either
based upon the undersigned’s judicial rulings, writing style, or
alleged delay in issuing certain rulings.

None of that conduct

supports a claim of actual personal bias.
CONCLUSION
Accusations of bias and lack of impartiality must be taken
seriously, which is why the undersigned has filled so many pages
to thoroughly address Plaintiff’s charges. But as this Order makes
abundantly clear, the accusations here do not withstand minimal
scrutiny.

Most are frivolous and many are just plain misleading.

It is human nature to blame others when we do not get what we
want.

The undersigned understands Plaintiff’s frustration.
And her lawyer has apparently

given her some hope that thirty-four years later she will be heard,
her

rights

will

compensated.

be

vindicated,

and

she

will

be

generously

When a judge approaches her case like other cases,

in a methodical manner without the expression of personal sympathy,
a lay party could predictably react with disappointment and even
anger.

But members of the bar like Mr. Joffe are held to a higher

standard.

Lashing out with reckless and frivolous accusations of

judicial bias does not meet that standard.
36

No legitimate reason exists for the undersigned to abandon
his post in this litigation.

As has been noted in this Circuit

and others, “there is as much obligation for a judge not to recuse
when there is no occasion for him to do so as there is for him to
do so when there is.”

Carter v. W. Publ’g Co., No. 99-11959-EE,

1999 WL 994997, at *2 (11th Cir. Nov. 1, 1999) (Tjoflat, J.,
addendum to pro forma order denying recusal motion) (alteration in
original) (quoting Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir.
1987)).

Recusal under the circumstances presented here would be

a dereliction of duty.

Plaintiff’s motion (ECF No. 69) is denied.

This 5th day of October, 2018
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT JUDGE
MIDDLE DISTRICT OF GEORGIA

37