Layman v. United Parcel Service, Inc.
Filing
46
MEMORANDUM AND OPINION by Senior Judge Charles R. Simpson, III on 7/22/2019. Layman's motion (DN 44 ) is DENIED. See Memorandum and Opinion for further details. (ALS)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
Jonathan LAYMAN
PLAINTIFF
v.
CIVIL ACTION NO. 3:17-CV-738-CRS
UNITED PARCEL SERVICE, INC.
DEFENDANT
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff Jonathan Layman’s Rule 59 Motion for a New
Trial. DN 44. Since this case was resolved on summary judgment, the Court construes the
motion as one to alter or amend judgment pursuant to Federal Rule of Civil Procedure 59(e). In
his motion, Layman raises for the first time the argument that Magistrate Judge Regina S.
Edwards, to whom some aspects of this case were referred, should have recused herself. Her
failure to do so, Layman alleges, resulted in her denying several of his discovery motions which
“prevented the Plaintiff from obtaining basic discoverable information” and, ultimately, to the
granting of summary judgment in favor of Defendant United Parcel Service, Inc. (“UPS”).
In support of his motion, Layman cites to 28 U.S.C. § 455(b)(2), which provides that
“[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself . . .
[w]here in private practice he served as lawyer in the matter in controversy, or a lawyer with
whom he previously practiced law served during such association as a lawyer concerning the
matter, or the judge or such lawyer has been a material witness concerning it.” Recusal was
required in this matter, he argues, because Judge Edwards was previously employed at Frost
Brown Todd LLC, the firm which represents UPS in this action.
The Court finds that Layman’s argument is untimely and denies the motion on that
ground. Of course, the text of Section 455 is silent on procedure and does not include a
1
timeliness requirement. However, most courts have read into the statute a timeliness
requirement. See 13D CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 3550 (3d
ed. 2019) (collecting cases). The Sixth Circuit has done so recently in Goward v. United States,
569 F. App’x 408, 410–11 (6th Cir. 2014). There, Goward filed a motion to vacate his sentence
under 28 U.S.C. § 2255. Id. at 409. One of the errors Goward asserted was that the district judge
presiding over his case could not fairly assess his claims of prosecutorial misconduct because the
prosecutor who handled Goward’s case had since become a magistrate judge in the same court.
Id. at 410. The Sixth Circuit held that Goward had untimely raised the issue:
Goward acknowledges that he did not move for or otherwise seek the district
judge’s disqualification, but does not explain why he failed to do so. He attempts
to sidestep the issue by asserting that the magistrate and district judges must have
recognized the conflict, that the district judge “chose to conceal the information
which would have led to a disqualification motion,” and that Goward was
proceeding pro se. We are not convinced. The information on which Goward bases
his claim for disqualification was a matter of public record. The issue is waived and
no plain error has been shown in the failure to recuse sua sponte. Further, the
allegation of bias has no factual support, especially where Goward’s claims based
on prosecutorial misconduct were procedurally defaulted and were not considered
by the district court on the merits in any event.
Id. at 410–11.1
1
The Court notes that in Goward, the Sixth Circuit was applying § 455(a) instead of § 455(b)(2). The Court sees no
reason the timeliness requirement should not apply to § 455(b) as well. The fact that § 455(e) permits waiver of §
455(a) grounds, but not for § 455(b) grounds, is irrelevant because the issue is one of timeliness, rather than waiver:
In assessing whether the arguments for a timeliness requirement have sufficient force, we observe
that waiver and timeliness are distinct issues. . . . A timeliness requirement forces the parties to raise
the disqualification issue at a reasonable time in the litigation. It prohibits knowing concealment of
an ethical issue for strategic purposes. . . . A timeliness requirement under section 455(b) serves to
protect against the same ploys as under section 455(a). However, the gains in judicial economy from
a timeliness requirement are greater than those from permitting waiver. . . . Moreover, a timeliness
requirement has an additional dimension: Prohibiting waiver may cost time and effort, but it is
neutral with respect to expected outcome of the case, as any waiver that would have occurred but
for the prohibition would have been one to which both parties had agreed. Lack of a timeliness
requirement, though, would allow the losing party an increased chance of a new trial. Thus, policy
reasons supporting a timeliness requirement appear to be stronger than those supporting a waiver
option. Hence, we conclude that it is more consistent with the legislative purposes underlying the
entirety of section 455 for us to construe both subsections (a) and (b) as requiring timeliness.
United States v. York, 888 F.2d 1050, 1054–55 (2d Cir. 1989).
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This timeliness requirement applies to matters that are public knowledge, even if the
movant does not in fact know them. See Id. (“The information on which Goward bases his claim
for disqualification was a matter of public record.”); United States v. Siegelman, 640 F.3d 1159,
1188 (11th Cir. 2011) (“The rule has been applied when the facts upon which the motion relies
are public knowledge, even if the movant does not know them.”) (citation omitted). “The
purpose of the rule is to ‘conserve judicial resources and prevent a litigant from waiting until an
adverse decision has been handed down before moving to disqualify the judge.’” Siegelman, 640
F.3d at 1188 (citing Summers v. Singletary, 119 F.3d 917, 921 (11th Cir. 1997)).
Here, like in Goward, Layman did not seek recusal prior to the present motion to
alter/amend. In the intervening period, Judge Edwards has ably resolved discovery issues and
this Court has entered judgment. The information Layman needed to make a motion to recuse is
in the public record and would have been available to him all along. The Court itself issued a
public press release on July 13, 2018, which indicated Judge Edwards’s prior experience at Frost
Brown Todd.2 Instead, Layman waited until the case was finally resolved, more than six months
after Judge Edwards made her first ruling. Regardless, no error appears in Judge Edwards’s
decision not to recuse sua sponte.3
Therefore, Layman’s motion (DN 44) is DENIED.
July 22, 2019
IT IS SO ORDERED.
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2
Press Release, United States District Court for the Western District of Kentucky, Regina S. Edwards Selected as
U.S. Magistrate Judge (July 13, 2018), https://www.kywd.uscourts.gov/news/regina-s-edwards-selected-usmagistrate-judge.
3
UPS has represented to the Court that neither Jennifer Asbrock nor Jennifer Bame (counsel for UPS in this action)
worked at Frost Brown Todd when Judge Edwards worked there and have not practiced law with Judge Edwards in
any capacity at any time. DN 45 at 3 n.1.
3
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