Doe v. Northern Kentucky University et al
OPINION AND ORDER: That the motions to recuse and to stay ( 202 , 203 , 206 ) be, and are hereby, DENIED. Signed by Judge William O. Bertelsman on 5/2/2017.(ECO)cc: COR
TO BE PUBLISHED IN FEDERAL SUPPLEMENT 3D
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT COVINGTON
CIVIL ACTION NO. 2:16-CV-28 (WOB-JGW)
OPINION AND ORDER
UNIVERSITY, ET AL.
This matter is before the Court on the motion by defendant
proceedings (Docs. 202, 203), defendant Kachurek’s motion for
recusal and to stay (Doc. 206), plaintiff’s combined response
thereto (Doc. 235), and NKU’s reply (Doc. 239).
The Court has carefully reviewed this matter and finds that
the parties’ briefs adequately define the issues such that oral
argument is unnecessary.
Thus, having given this matter close
Memorandum Opinion and Order.
Factual and Procedural Background
A detailed recitation of the background of this case is
necessary to understand the posture of the motions before the
This case was filed on February 12, 2016.
deliberate indifference after she was sexually assaulted by a
fellow student during the fall semester of 2013.
her complaint, plaintiff alleged claims against NKU for violation
of Title IX, Title IX retaliation, and breach of fiduciary duty;
and against former NKU Police Chief Les Kachurek (“Kachurek”) for
Title IX retaliation.
Further, NKU President Geoffrey Mearns
(“Mearns”), Title IX Coordinator Kathleen Roberts (“Roberts”), and
NKU Deputy Title IX Coordinator Ann James (“James”) were sued under
42 U.S.C. § 1983 for violations of plaintiff’s First and Fourteenth
discovery and other pretrial matters were referred to the assigned
United States Magistrate Judge.
On March 9, 2016, the Court held its routine monthly docket
call on this and several other cases, after which it issued a
supervision of the Magistrate Judge.
On July 29, 2016, defendants NKU, Mearns, Roberts, and James
filed a motion for partial summary judgment on plaintiff’s claim
for Title IX retaliation.
Defendants argued that the claim was
based solely on communications from NKU’s outside counsel, the
admission of which is barred by Fed. R. Civ. P. 408.
According to the Affidavit of Michael S. Jones, attached to
plaintiff’s Memorandum in Opposition to Defendants’ Motions to
Recuse and to Stay, Nicholas Gregg (“Gregg”) — the undersigned’s
grandson — applied for and interviewed with plaintiff’s counsel’s
law firm in August 2016.
(Doc. 235-1 ¶ 11).
The firm, aware of this relationship, conducted research to
determine if hiring Gregg would prevent the firm from appearing
before the undersigned.
Id. ¶ 15.
The firm determined that so
long as the requirements of 28 U.S.C. 455(b) were observed — viz,
that Gregg did not act as a lawyer in the proceeding in question
and had no interest that could be substantially affected by its
outcome — his employment with the firm would not prevent its
attorneys from appearing before the Court.
The undersigned was aware that Gregg was applying to the firm
and was already familiar with the dictates of 28 U.S.C. § 455
because, when Gregg entered his third year of law school and began
seeking employment, the undersigned looked into these issues so he
could advise his grandson accordingly.
The undersigned advised
his grandson that there need be no need for recusal if the
provisions of 28 U.S.C. § 455(b) were observed, that is, he could
not be “an attorney in the case” or have an interest that could be
substantially affected by the outcome of the proceeding.
In any event, Gregg — who had taken the July 2016 Ohio bar
exam but had not learned his results — began his employment with
the firm as a law clerk on or about August 22, 2016, and the firm
created an ethical wall so that Gregg would neither work on this
case nor be exposed to information about it.
Id. ¶¶ 16-17, 22-
Discovery and briefing on various motions proceeded.
September 15, 2016, defendants NKU, Mearns, Roberts, and James
The Court held a formal oral argument on pending motions on
October 18, 2016.
On October 24, 2016, the Court
issued a Memorandum Opinion and Order making rulings for and
against both sides.
The Court denied NKU’s motion
for a gag order, based on well-settled and binding law.
Id. at 1-
The Court also granted sanctions against NKU for certain
obstructive actions by counsel in a deposition, about which they
The Amended Complaint was filed without objection by the NKU
defendants, who stated that they did not object to the amendment
so long as their right to pursue their motion for partial dismissal
was preserved. See Doc. 84, Transcript at 8, 19.
In fact, during oral argument, counsel for both the NKU defendants
and Kachurek withdrew their motions for a gag order, recognizing
that such an order would be inappropriate and noting that
compliance with FERPA would ensure the privacy of the student
information in question. (Doc. 121, Transcript at 9-12).
had previously been cautioned by the Magistrate Judge.
Id. at 4-
Next, the Court granted the NKU defendants’ motion for partial
retaliation based upon correspondence from NKU’s outside counsel.
Id. at 10-12.
Memorandum Opinion and Order.
In this Order, the
Court ruled in the NKU defendants’ favor in all respects.
the Court dismissed plaintiff’s claim for violation of substantive
due process based upon the insufficiency of her pleadings.
Second, the Court held that even absent such deficiencies,
the NKU individual defendants were entitled to qualified immunity
from such claims.
Id. at 3-5.
Id. at 6-7.
possibility that plaintiff could recover punitive damages from the
The Court does not include Kachurek in the NKU defendants group,
as he is no longer employed at NKU and has separate counsel.
Plaintiff does allege a claim against Kachurek for defamation,
Finally, the Court dismissed plaintiff’s claim for breach of
contract against the NKU defendants.
Id. at 7-8.4
These rulings came months after the undersigned’s grandson
began employment with plaintiff’s counsel’s firm, and the Court
was satisfied that the provisions of § 455(b) were being observed.
Moving forward, in a hearing held on December 7, 2016, the
Court stressed the national importance of the issues raised in
Title IX cases such as this, both for alleged perpetrators and
their alleged victims.
(Doc. 140, Transcript at 2-3).
I don’t like to see NKU getting all this bad publicity.
Before any of your time, I was one-time president of the
Chamber of Commerce, and we had a battle royal[e] to get that
university established up here. Lexington fought it. U.K
didn’t want the competition. Louisville fought it for the
same reason. We fought a battle that went on for years until
we finally got this university here.
And it’s done well.
It’s been a real credit to the community. So whatever these
issues are, they’ve got to be resolved.
Both of you, both sides, are at fault for not recognizing
this and engaging in a lot of pettiness.
Id. at 3.
which allows for punitive damages in Kentucky. Kachurek’s separate
motion for summary judgment is currently under advisement.
Were the undersigned to recuse, these rulings would be subject
to rescission. See In re The Aetna Cas. and Surety Co., 919 F.2d
1136, 1145-46 (6th Cir. 1990).
Addressing the question of the parties’ settlement efforts
before the Magistrate Judge, and plaintiff’s demand in particular,
the Court stated:
Let me say a word about settlement. I know the magistrate
has talked to you about ways of settling this. If you folks
want to settle, the Court will be glad to assist you, summary
jury trial or some other method. If you don’t want to settle,
just say so.
Don’t make a demand that’s outlandish and
totally frivolous on its face. Just say I’ll take what the
jury gives me, if they give me anything.
Case is not worth $4 million. If they returned a verdict of
$4 million, I’d have to set it aside.
dismissing various claims against defendant Kachurek.
Thereafter, discovery was completed and the parties filed
dispositive motions on March 1, 2017.
(Docs. 164, 165).
On March 21, 2017, the undersigned attended a meeting of the
Northern Kentucky Inn of Court.
Prior to being seated for dinner,
the undersigned encountered Jeffrey Mando, a local attorney and
before the Court.
Noting that Mr. Mando had recently entered an
appearance in this case, the undersigned spoke generally about
settlement efforts and mentioned that his grandson had taken a job
at Kevin Murphy’s law firm after graduating law school.
undersigned also informed Mr. Mando that the statute was being
satisfied in that the grandson was not working on this case and
that the firm had created an ethical wall to screen him from it.
In the meantime, the Court had been studying the pending
motions for summary judgment.
(Docs. 178, 179).
The Court had
also been reviewing deposition transcripts as they were filed over
the preceding months.
The ever-diligent Magistrate Judge scheduled yet another
settlement conference for March 30, 2017.
It is the
employment at plaintiff’s counsel’s firm was raised during this
conference, with counsel for NKU indicating that it was prepared
conference was unsuccessful, and the matter returned to the Court
The NKU defendants filed their reply brief in support of their
motion for summary judgment on April 5, 2017, (Doc. 195), which
the Court promptly reviewed.
Having already studied the record and the applicable law over
a period of months, it was apparent to the Court that there were
numerous material issues that should be resolved by a jury.
Court thus prepared a brief opinion denying the motion for summary
That order was docketed at 2:07 p.m. on
April 6, 2017.
At 6:44 p.m. that same day, the NKU defendants filed their
motion to recuse.
A. The Recusal Statute
28 U.S.C. § 455 provides a statutory basis for recusal of
In pertinent part, the statute states:
(a) Any justice, judge, or magistrate judge of the United
States shall disqualify himself in any proceeding in which
his impartiality might reasonably be questioned.
(5) He or his spouse, or a person within the third
degree of relationship to either of them, or the spouse of
(ii) Is acting as a lawyer in the proceeding.
(iii) Is known by the judge to have an interest
that could be substantially affected by the outcome of the
B. Section 455(b)
Although defendants originally invoked both subsections (a)
and (b) in their motions to recuse, in their reply brief they
abandon reliance on subsection (b).
See Doc. 239 at 1-2.
Court infers from this that the evidence provided by plaintiff in
Defendant Kachurek filed a separate motion to recuse and to stay
on April 7, 2017, adopting NKU’s arguments. (Doc. 206).
response to defendants’ motion has assuaged any concerns regarding
the propriety of my grandson’s employment under subsection (b).
This conclusion is supported by the record and the law.
Courts interpreting § 455(b) regularly hold that the employment of
a child of a judge — one degree closer in relation than a grandchild
— in a law firm representing a party before the Court does not
require recusal where the child is not a partner and is not working
on the case.
See, e.g., Benko v. Judges' Retirement Sys., No. 97-
1241, 1998 WL 199798, at *4 (6th Cir. 1998); In re Kansas Public
Employees Retirement Sys., 85 F.3d 1353, 1364-65 (8th Cir. 1996);
Faith Temple Church v. Town of Brighton, 348 F. Supp.2d 18, 19-21
(W.D.N.Y. 2004); United States v. Edwards, 39 F. Supp.2d 692, 71315 (M.D. La. 1999); Wilmington Towing Co., Inc. v. Cape Fear Towing
Co., Inc., 624 F. Supp.2d 1210, 1211-12 (E.D.N.C. 1986); United
States ex rel. Weinberger v. Equifax, Inc., 557 F.2d 456, 463-64
(5th Cir. 1977).
necessary if the relatives of judges are not to be penalized by
the judge’s position.
one judge sits.
There are many district courts where only
This division was one until I took senior status
If the position advanced by defendants were valid, a
judge would be disqualified if he had a civil rights case involving
a firm where his niece or nephew was an attorney in the tax
Further complicating matters if the fact that many law firms
are now mega-firms having several hundred associates and offices
in various cities.
The statute covers parents, grandparents, sons, daughters,
aunts, uncles, nephews, nieces, first cousins, and maybe others,
and the spouses of all of them.
Under movants’ approach, a judge
would recuse if any of the relatives were employed as attorneys by
any firm in the case, wherever located and in whatever department,
even though the relative had no involvement in the case before the
It doesn’t require notice because notice would be
immediately erected within the firm in question to screen my
grandson from this case; he has not worked on this case; and
because he is an employee and not a member or partner, he has no
interest that would be substantially affected by the outcome of
(Doc. 235-1, Jones Affidavit).
C. Section 455(a)
As mentioned, defendants’ reply brief shifts reliance to §
reasonable, objective person, knowing all of the circumstances,
would have questioned the judge’s impartiality.”
Youngstown State Univ., 783 F.3d 1077, 1079 (6th Cir. 2015)
(internal quotations and citations omitted).
This standard is
objective and is not based on the subjective view of a party.
Wheeler v. Southerland Corp., 875 F.2d 1246, 1251 (6th Cir. 1989)
“Section 455(a) must not be so broadly construed that recusal
is mandated upon the merest unsubstantiated suggestion of an
appearance of impropriety, personal bias or prejudice.”
v. Youngstown State Univ., No. 4:13cv750, 2014 WL 1153715, at *3
(N.D. Ohio Mar. 20, 2014) (citation omitted), aff’d, Ragozzine,
783 F. 3d at 1079.
“The statute is not intended to give litigants
a veto power over sitting judges, or a vehicle for obtaining a
judge of their choice.”
Defendants strenuously argue that recusal is required because
the undersigned did not inform the parties that Gregg had been
hired by the firm when it occurred, citing dicta from Liljeberg v.
Health Serv. Acquisition Corp., 486 U.S. 847 (1988).
See id. at
868 (stating that vacating decisions made by judges at a time when
they should have recused “may prevent a substantive injustice in
some future case by encouraging a judge or litigant to more
carefully examine possible grounds for disqualification and to
promptly disclose them when discovered”).
This argument does not advance defendants’ position.
there were no “possible grounds for disqualification” to disclose.
That is, when Gregg became employed at the firm, the undersigned
made inquiries of him to assure himself that the requirements of
§ 455(b) were met, and it did so at periodic intervals thereafter
to assure that such compliance continued.
Such an investigation
by a judge to assure that the requirements of § 455 are met is
See United States v. Morrison, 153 F.3d 34, 48 n. 4
(2d Cir. 1998).
Second, and more importantly, the Sixth Circuit has expressly
In Ragozzine, the plaintiff brought suit against Youngstown
State University (“YSU”) for employment discrimination after he
was denied tenure.
The district court granted summary judgment to
YSU on all claims.
783 F.3d at 1079.
The plaintiff then filed a motion to disqualify the judge
based on a previously undisclosed dating relationship between the
relationship created an appearance of impropriety under § 455(a).
The Sixth Circuit first held that the district judge had
correctly determined that a “relationship with a tenured member of
a university faculty, without more, would not necessarily cause a
reasonable person to question a judge’s impartiality regarding all
matters involving the university.”
Plaintiff also argued that recusal was required because the
judge had not disclosed the relationship as a potential conflict
so that the parties could decide whether to waive the conflict or
The Court stated:
Next, the district court was not required to disclose the
possible conflict to the parties, contrary to Ragozzine’s
argument. . . . In advocating for the required disclosure of
possible conflicts, Ragozzine’s counsel cites his experience
of other judges having disclosed possible conflicts. When a
judge makes a determination that her impartiality could not
reasonably be questioned, the judge is permitted to disclose
the matter to counsel in order to settle the matter or to
permit a motion to recuse.
But Ragozzine points to no
statutory or judicial authority requiring a judge to do so.
Id. at 1080 (bold added).
The Court thus held that the district court, having correctly
questioned, had no duty to disclose and recusal was not required.
Id. at 1080-81.
Finally, the Sixth Circuit and other respected authorities
note that “[a]lthough a judge is obliged to disqualify himself
when there is a close question concerning his impartiality, . . .
he has an equally strong duty to sit where disqualification is not
United States v. Angelus, 258 Fed. App’x 840, 842 (6th
Cir. 2007) (emphasis added) (citations omitted).
See also 13D
Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure, § 3549 (3d ed. 1998 & April 2017 Update) (“Although
some observers have concluded that Section 455(a) abolished the
duty to sit in federal court, it is more accurate to say that it
alters that duty.
Accordingly, a federal judge still has a duty
to sit unless there are grounds for recusal.”) (emphasis added).
“Judicial impartiality and independence are serious matters.”
Fharmacy Records v. Nassar, 572 F. Supp.2d 869, 876 (E.D. Mich.
2008) (citing United States v. Johnson, 488 F.3d 690, 697 (6th
The undersigned could not agree more with that
On December 10, 1979, I took the oath of office to “faithfully
and impartially discharge and perform all the duties incumbent on
me” as a federal judge.
See 28 U.S.C. § 453.
In the nearly forty
years since that day, I have upheld that oath to the best of my
abilities, every day, in every case.
Therefore, I will fulfill my duty to see this case through to
its conclusion, whatever that may be, without partiality towards
Therefore, having reviewed this matter, and the Court being
IT IS ORDERED that the motions to recuse and to stay (Docs.
202, 203, 206) be, and are hereby, DENIED.
This 2nd day of May, 2017.
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