SECRETARY OF LABOR UNITED STATES DEPARTMENT OF LABOR v. SULLIVAN GRANITE CO LLC et al

Filing 21

ORDER denying 20 Motion to Reconsider Denial of Motion to Recuse. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
THOMAS E. PEREZ, Secretary of Labor,
United States Department of Labor,
Plaintiff,
v.
SULLIVAN GRANITE CO, LLC and
CONRAD SMITH,
Defendants.

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1:15-cv-00455-JAW

ORDER DENYING SULLIVAN GRANITE CO., LLC’s MOTION TO
RECONSIDER DENIAL OF MOTION TO RECUSE
Because the Defendants failed to present a proper basis for my recusal, I
decline to reconsider my earlier order denying their motion to recuse.
I.

BACKGROUND
This case involves a long-standing dispute between the Secretary of Labor and

Sullivan Granite Co. I first dealt with the controversy in 2010, when the Secretary
of Labor moved for a temporary restraining order (TRO) against Sullivan Granite,
alleging several violations of the Federal Mine Safety Act, including refusing to allow
federal officials access to the quarry. U.S. Sec’y of Labor v. Sullivan Granite, Co.,
1:10-cv-00456-JAW;1 Compl. (ECF No. 1). On November 19, 2010, I issued a written
decision, resolving some legal issues and granting the Secretary’s motion for TRO.

This order at times requires citation to documents from the earlier case. Where the Court cites
a document from the earlier case and it is not entirely clear from context that it has done so, the Court
has added a footnote to clarify the citation.
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Order on Mot. for TRO (ECF No. 17) (2010 TRO Order).

Later, as a result of

discussions between the parties, an agreement was reached; on October 17, 2011, I
issued an agreed-upon order and dismissed the case. Order on Prelim. Inj. (ECF No.
29); Id. Attach. 1 Parties’ Agreement on Proposed Order (ECF No. 29); Order on Mots.
to Dismiss (ECF No. 40) (2011 Order on Mots. to Dismiss); J. (ECF No. 41).
Unfortunately, the dispute reawakened this year. On November 10, 2015, the
Secretary of Labor filed a second lawsuit against Sullivan Granite Co., LLC and
Conrad J. Smith. Perez v. Sullivan Granite Co., 1:15-cv-00455-JAW; Compl. (ECF
No. 1). On the same day, the Secretary moved for a TRO. Mot. for TRO, Prelim. Inj.
and Permanent Inj. (ECF No. 4). The summons was served on Mr. Smith and
Sullivan Granite on November 17, 2015. Summons in a Civil Action (ECF No. 6); Id.
Attach. 1 Summons in a Civil Action (ECF No. 6). On the same day, the Defendants
were served with a Notice of Hearing, informing them that the Secretary intended to
bring the motion for TRO to a hearing at the United States District Court in Bangor,
Maine on November 18, 2015 at 1:00 p.m. Notice of Hr’g (ECF No. 8). The Secretary
appeared at the scheduled hearing, but the Defendants did not, and I granted the
TRO. Order on Mot. for TRO (ECF No. 10).
On December 21, 2015, Conrad Smith wrote me the following:
I Conrad J. Smith being of sound mind and fair constitution do
hereby request that you, John A. Woodcock Jr. recuse yourself from Civil
Action No. 1:15-cv-00455-JAW for the following reasons:
1. You have been known to reside in close proximity to the “Quarry” in
Sullivan Maine (lately being reffered [sic] to as a “mine”) known as
Browns Meadow Quarry or Stimpsons by others.

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2. You have repeatedly refused to entertain any motion before you for a
reasonable thorough Jurisdictional hearing.
3. You have injured and harmed any chance of having a fair trial with
due process by dismissing and defiling my companys [sic] one agent,
Stephen Smith, once by not honoring his authority as the agent for the
Company and also by referring to him as irascible on the record.
4. By communicating by computer on your throne with solicitors in
Boston and who knows who or where, in court while I did not have privy
to what was taking place.
5. And finaly [sic], you refuse to order the Dept. of Labor to cease and
desist calling Sullivan Granite Co. an L.L.C., therefore allowing a
falsehood to prevail and continue.
Thank you for your cooperation.
If I do not hear from you within 10 working days, I will deem my request
to be honored.
Letter Mot. for Recusal (ECF No. 14). I denied the motion on December 22, 2015.
Order Denying Mot. for Recusal (ECF No. 16).
On January 21, 2016, Conrad Smith filed another letter with the Court; it
stated in relevant part:
And finally, we understand that Judge Woodcock denied our request to
recuse himself voluntarily, therefore;
Mr. Woodcock, please state your reasons for your denial to the best of
your ability, either in whole or in part.
If you have good cause that is convincing, it may eliminate the necessity
for a judicial conduct review.
…
Additionally, how is that some one with poor standing with the Court
such as MSHA for failing to show-up at a hearing with no ligitimate [sic]
and reasonable excuse is allowed to re-enter another exact same

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complaint asking for the exact same relief after being thrown out of court
before?
Is there no protection for the abuse of the victim and what about waste
of Government money and time?
Letter Mot. for Recons. re Order # 16 (ECF No. 20). The Court has treated this
January 21, 2016 letter as a motion for reconsideration of the order denying the
motion to recuse.
II.

DISCUSSION
The reason I denied the motion to recuse is that it did not state a proper basis

to recuse myself from the case. Judges have a duty to decide the cases that come
before them and not to shirk that duty by dodging difficult or unpleasant cases. The
First Circuit Court of Appeals has written that “[t]here is as much obligation for a
judge not to recuse himself when there is no occasion as there is for him to do so when
there is.” Brody v. Pres. & Fellows of Harvard Coll., 664 F.2d 10, 12 (1st Cir. 1981)
(quoting In re Union Leader Corp., 292 F.2d 381, 391 (1st Cir. 1961)).
The request for recusal contains a number of factual mistakes and errors of
law:
(1) I do not live in close proximity to the quarry in question. The quarry is
apparently located somewhere in the town of Franklin, Maine; I do not
live in Franklin, Maine.
(2) I have not “repeatedly refused” to hold a jurisdictional hearing. This
case was initiated on November 10, 2015, and no one has requested that
I hold a “jurisdictional hearing” in the case.

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I received argument in the earlier case as to whether a quarry was a
mine within the meaning of the Federal Mine and Safety and Health Act
of 1977, 30 U.S.C. §§ 801 et seq. and whether Stephen Smith’s
administrative complaint deprived me of jurisdiction.

I simply

disagreed with Conrad Smith’s position and wrote a decision explaining
why. 2010 TRO Order at 1-5.
(3) I reject the allegation that I “dismiss[ed] and defil[ed]” Stephen Smith.
Conrad Smith must be referring to my decision in the earlier case not to
allow Conrad Smith’s father, Stephen Smith, to represent the business
in the proceedings. The reason that I did not allow Stephen Smith to
represent the business was that he was not a lawyer and had no right
to represent anyone but himself in court. Furthermore, Stephen Smith
was not a party to the case.
Conrad Smith told me that Sullivan Granite was a sole proprietorship,
and as such, I ruled as a matter of law that Stephen Smith could not
represent his son in court. 2010 TRO Order at 1 n.1. Addressing 28
U.S.C. § 1654, the First Circuit has written that “[w]e have interpreted
this statute as barring a non-lawyer from representing anyone but
himself.” O’Diah v. Volkswagen of Am., Inc., 91 Fed. App’x 159, 160 (1st
Cir. 2004) (citing Herrera-Venegas v. Sanchez-Rivera, 681 F.2d 41, 42
(1st Cir. 1982)).

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Stephen Smith did not like my ruling and argued against it. He insisted
that he had a right to represent the business as an agent of the company;
he interrupted me when I tried to explain why, as a matter of law, he
could not represent someone other than himself in court. Furthermore,
while I was trying to speak with Conrad Smith, Stephen Smith kept
talking to him and distracting him.
At a hearing on December 7, 2010, I told Conrad Smith that I was “not
disrespecting his father” but that his father seemed “a little bit irascible
at times,” which still seems a fair characterization of my dealings with
Stephen Smith. Tr. of Proceedings 8:24-25 (ECF No. 34).2 I also told
Conrad Smith that he impressed me as “calm and thoughtful and willing
to listen to reason.”

Id. 8:22-24. In the order, I wrote that I was

“personally sympathetic to Mr. Smith’s effort to run a small business in
a difficult economy. But like all businesses, his quarry must comply
with the law.” 2010 TRO Order at 3.
Conrad Smith’s demand that I recuse myself because I described his
father as “irascible at times” is not a sufficient basis as a matter of law
for me to recuse myself in this case any more so than my previously
favorable view of Conrad Smith would be a proper basis for recusal.
Stephen Smith is not a party to the current proceeding, and even if he
were, my view of Stephen Smith came as a result of information

This citation refers back to the earlier case: U.S. Sec’y of Labor v. Sullivan Granite, Co., 1:10cv-00456-JAW.
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presented in the case. In re Martinez-Catala, 129 F.3d 213, 219 (1st Cir.
2007) (“A judge is ordinarily entitled to form a view of the parties that
is favorable or unfavorable, so long as it derives from information in the
case; there may be exceptions but they are ‘rare’ indeed”) (citing Liteky
v. United States, 510 U.S. 540, 554 (1994)).
(4) I am unclear what Conrad Smith is referring to when he states that I
have been communicating by computer on my “throne” with Boston
solicitors while he was not privy to what was taking place. I have had
two hearings with counsel for the Secretary at which Conrad Smith was
not present.
The first took place on November 8, 2010 shortly after the Secretary
brought a motion for TRO; the conversation was not a secret. See Min.
Entry (ECF No. 8).3 It was transcribed and addressed only the status of
the case—whether Sullivan Granite had been served and whether there
was a need to schedule a hearing. These types of practical conversations
with one side of a motion for a TRO are often necessary at the very outset
of the case to determine what a court should do about the demand for
immediate relief—discussing such issues as, whether the defendant is
represented by an attorney, how emergent the plaintiff’s claim for relief
is, when a hearing will have to be held, and how long the hearing might
be. These preliminary discussions are recorded and transcribed and any

This citation refers back to the earlier case: U.S. Sec’y of Labor v. Sullivan Granite, Co., 1:10cv-00456-JAW.
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preliminary matters are subject to revision once the opposing party has
entered an appearance.
In the pending case, I held a hearing on the motion for TRO on
November 18, 2015, Min. Entry (ECF No. 9), but the Secretary assured
me that Sullivan Granite had been served with a notice of the hearing
and the docket confirmed the same. See Notice of Hr’g (ECF No. 9).
After ascertaining that no one was going to show up for Sullivan
Granite, I went forward with a brief hearing. This is proper; otherwise,
a served party could stymie a lawsuit simply by refusing to appear at
scheduled hearings.
Other than these two instances, I can recall no separate dealings at all
with the Secretary’s lawyers. Conrad Smith is simply wrong in accusing
me of holding side conversations with and separately emailing the
Government lawyers.
(5) Regarding Conrad Smith’s complaint that I have refused to order the
Department of Labor to cease and desist calling Sullivan Granite Co. an
LLC, I did not write the Government’s filings. If Conrad Smith wishes
to require the Secretary to revise the pleadings to state the correct name
of the Defendant, he should file an appropriate motion. He has not done
so.
(6) Finally, regarding Conrad Smith’s statement that I have allowed the
Secretary to proceed despite being a party in “poor standing” with the

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Court given the Secretary’s failure to show up at a prior hearing, Conrad
Smith must be again referring back to the earlier case. Conrad Smith
is correct in recalling that the Secretary failed to file a Pretrial
Memorandum and to appear at the Final Pretrial Conference, which was
scheduled for October 5, 2011.

See Mot. to Dismiss

(ECF No. 37)

(moving to dismiss on the ground of the Secretary’s failure to appear).4
In my Order on Motions to Dismiss, I expressed my disappointment with
the Secretary of Labor for its failures, but I determined that the
Secretary and Mr. Smith both wanted the case dismissed and I
dismissed it. 2011 Order on Mots. to Dismiss at 1-2.
I reject Conrad Smith’s point that because the Secretary failed to file a
pretrial memorandum and to appear at a pretrial conference in 2011, it
should be barred from filing an action now. Some mistakes in litigation
are inevitable, and if Government agencies were forever barred from
appearing in a new case because of a miscue in an old one, Government
agencies would be denied access to the courts. Again, however, if Conrad
Smith wishes to file a motion to make this point, he is welcome to do so.
III.

CONCLUSION
I DENY the Defendants’ Motion to Reconsider my denial of the motion to

recuse (ECF No. 20).

This citation refers back to the earlier case: U.S. Sec’y of Labor v. Sullivan Granite, Co., 1:10cv-00456-JAW.
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SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 26th day of January, 2016

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