Howard v. Pearl Interactive Network, Incorporated et al

Filing 11

OPINION AND ORDER: The Court ORDERS that the 8 Motion for Recusal is DENIED. Signed by Judge Karen K. Caldwell on 12/22/2016. (SCD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION -- LEXINGTON

JASON HOWARD,

CIVIL ACTION NO. 5:16-362-KKC

Plaintiff,
V.

OPINION AND ORDER

PEARL INTERACTIVE NETWORK,
INCORPORATED, ROBERT T. SCULLY,
MERRY KORN and DIANE SCHRIMPF
Defendant.

This matter is before the Court on the plaintiff’s motion (DE 8) requesting that the
undersigned recuse from this matter. For the following reasons, the motion will be denied.
The undersigned’s stepson is employed as a non-equity partner at the Frankfort,
Kentucky office of Dinsmore & Shohl, LLP. He is not, however, involved in this particular
action. Catherine Wright and Travers Manley, who work at the firm’s Lexington, Kentucky
office, are counsel of record for three of the defendants in this matter.
The plaintiff argues that recusal is required under 28 U.S.C. § 455(b)(5)(ii), which
requires that a judge disqualify herself when “a person within the third degree of relationship” to
the judge is acting as a lawyer in the proceeding. The same statute requires a judge’s recusal
when “a person within the third degree of relationship . . . is known by the judge to have an
interest that could be substantially affected by the outcome of the proceeding.” The statute is
substantively identical to Canon 3(C)(1) of the Code of Conduct for United States Judges, which
defines a third degree of relationship as including the judge’s child.

Advisory Opinion No. 58 of the United States Committee on Codes of Conduct provides
that, “[i]f the relative is an associate or non-equity partner and has not participated in the
preparation or presentation of the case before the judge, and the relative’s compensation is in no
manner dependent upon the result of the case, recusal is not mandated.” The opinion defines a
non-equity partner as “one who receives a fixed salary, is not entitled to share in the firm’s
profits, and has no interest in the firm’s client list or goodwill.” A non-equity partner’s financial
interest in the outcome of a particular case is indirect and similar to that of an associate. In re
Mercedes-Benz Antitrust Litig., 226 F. Supp. 2d 552, 556 (D.N.J. 2002). “Courts have
consistently held that a judge's kin does not have an ‘interest that could be substantially affected’
when he or she is only an associate, as opposed to a partner, in a law firm representing a party to
the action and does not actively participate in the proceeding.” Cloverdale Equip. Co. v.
Manitowoc Eng'g Co., 964 F. Supp. 1152, 1155 (E.D. Mich. 1997), aff'd, 149 F.3d 1182 (6th Cir.
1998).
Because the undersigned’s stepson is a non-equity partner in Dinsmore & Shohl LLP and
there is no allegation that he has participated in this case in any manner or that his compensation
is any manner dependent upon the result of the case, the undersigned does not find that recusal is
warranted here.
Canon C(3)(1) and Section 455 also require recusal in “any proceeding in which [the
judge’s] impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). The undersigned is
not aware of any circumstances that would raise reasonable questions about her impartiality in
this case.

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For all these reasons, the Court hereby ORDERS that the motion for recusal (DE 8) is
DENIED.
Dated December 22, 2016.

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