Matthews et al v. Stolier et al
ORDER AND REASONS denying 163 MOTION for APPEAL OF MAGISTRATE JUDGE DECISION to District Court. Plaintiff's 167 Motion to Expedite is granted. Signed by Judge Jane Triche Milazzo. (ecm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHARLES MATTHEWS, ET AL
JACK STOLIER, ET AL
ORDER AND REASONS
Before the Court are Plaintiff’s Motion for Appeal/Review of Magistrate
Judge Decision (Doc. 163) and a Motion to Expedite the Motion for
Appeal/Review. The Court GRANTS the Motion to Expedite and proceeds to
the merits of the Motion for Appeal/Review. For the following reasons, that
Motion is DENIED.
The background facts of this case have been detailed at length in the
Court’s previous orders.1 Familiarity with those orders is assumed.
See, e.g., Doc. 109.
The instant motion arises out of the decision of Magistrate Judge
Joseph Wilkinson to recuse himself in this matter. This decision was based
on the fact that the law firm of Frilot, LLC, at which his son-in-law is a
partner, is counsel in this matter. After the recusal Plaintiffs, presumably
pleased with Judge Wilkinson’s handling of the case, filed a motion to
reconsider the recusal, which was denied. Plaintiff now files this appeal of
the Magistrate’s decision to recuse himself, asking the District Judge to
reassign the case to Judge Wilkinson.
LAW AND ANALYSIS
The Court questions whether it has the authority to overrule the
Magistrate’s decision to recuse himself in this matter. Judge Wilkinson has
determined, in reliance on Advisory Opinion No. 58 of the Judicial
Conference of the United States Committee on Codes of Conduct, that his
recusal is warranted by 28 U.S.C. § 455. The thrust of Plaintiffs’ argument
appears to be that the Court should reverse the Magistrate’s decision to
recuse himself because Opinion 58 is nonbinding.
The Fifth Circuit, in
Potashnick v. Port City Const. Co., adopted a per se rule of disqualification
when a partner in a law firm appearing before the judge is related to that
judge within the third degree.2 Though some jurisprudence has called into
question the extent to which Opinion 58 creates a per se rule of
disqualification, the cases cited by Plaintiffs are distinguishable—they all
Potashnick v. Port City Const. Co., 609 F.2d 1101, 1114 (5th Cir. 1980)
involve affirmance of a judge’s decision not to recuse himself from a matter.3
Plaintiff has not cited the Court to a case reversing a judge’s decision to
Judge Wilkinson has determined that the circumstances of this case
warrant recusal. The Court is not inclined to second-guess the Magistrate’s
For the forgoing reasons, Plaintiffs’ Motion for Appeal/Review is
New Orleans, Louisiana this 20th day of October, 2015.
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
See, e.g., Microsoft Corp. v. U.S., 530 U.S. 1301, 1302 (2000) (expressing doubt that
28 U.S.C. § 455 requires recusal in support of Justice Rehnquist’s decision to stay on the
case despite his son’s partnership in a firm that was appearing before the Court); Pashaian
v. Eccelston Properties, Ltd., 88 F.3d 77, 84 (2d Cir. 1996) (rejecting the Fifth Circuit’s per
se rule of disqualification).
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