CAMPBELL et al v. FIRST AMERICAN TITLE INSURANCE COMPANY

Filing 214

MEMORANDUM DECISION AND ORDER ON MOTION FOR RECUSAL denying 201 Motion for Recusal. By MAGISTRATE JUDGE JOHN H. RICH III. (lrc)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
BERNHARD LOEF,
Plaintiff
v.
FIRST AMERICAN TITLE
INSURANCE COMPANY,
Defendant

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No. 2:08-cv-311-GZS

MEMORANDUM DECISION AND ORDER ON MOTION FOR RECUSAL
By a Notice to Counsel dated June 19, 2012, I disclosed that my wife and I had received
notice that we might be members of the class that was certified in this case, and that my own
check of our records confirmed that we were. See Notice to Counsel (“Notice”) (ECF No. 192).
I stated that my wife and I had opted out of the class, and that we waived any rights to recover
against the defendant on the claims at issue, in light of which I did not believe that there was a
basis for mandated recusal. See id. However, I permitted the parties an opportunity to file,
within 14 days of the date of the Notice, a motion for recusal. See id.
On July 3, 2012, the plaintiff filed a motion pursuant to 28 U.S.C. § 455(a) and the
Judicial Code of Conduct, Canon 3(c)(1), requesting that I recuse myself from further
proceedings in this case. See Plaintiff’s Motion for Recusal of Magistrate Judge (“Motion”)
(ECF No. 201). The defendant filed a response stating that it did not believe that recusal was
mandatory in these circumstances. See Defendant’s Response to Plaintiff’s Motion for Recusal
of Magistrate Judge (ECF No. 206).
I conclude that my recusal is unnecessary and, accordingly, deny the Motion.

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The plaintiff seeks my recusal, in “an abundance of caution,” because the “Judicial Code
requires that a judge recuse himself when the judge’s impartiality might reasonably be
questioned.” Motion. He requests that, rather than take the risk that my impartiality might be
questioned or that this issue might become a possible ground for appeal, I recuse myself. See id.
Nonetheless, as noted by Circuit Judge John M. Walker, Jr., in a leading case on the issue of
recusal in the class-action context, “despite the breadth of § 455, a judge is as much obliged not
to recuse himself when it is not called for as he is obliged to when it is.” In re Literary Works in
Elec. Databases Copyright Litig., 509 F.3d 136, 140 (2d Cir. 2007) (citation and internal
punctuation omitted).
As Circuit Judge Walker explained in Literary Works, he and his colleague, Circuit Judge
Ralph K. Winter, Jr., were among three judges assigned to a panel formed to hear oral argument
with respect to an appeal filed by several class members in a class action on behalf of freelance
authors whose work had been reproduced without their express consent in a variety of electronic
databases, including LexisNexis and Westlaw. See Literary Works, 509 F.3d at 139. After
extensive pre-argument preparation, Circuit Judges Walker and Winter realized on March 6,
2007, that there was a high probability that they held copyrights in works that had been
reproduced in the defendants’ databases. See id. At oral argument on March 7, 2007, they
publicly stated that they would forgo any financial interest in the settlement that they could
possibly have, then or in the future. See id. They also solicited the opinion of the Committee on
Codes of Conduct of the Judicial Conference of the United States (the “Committee”), which
advised them that, pursuant to Canon 3C(1)(d)(i) of the Code of Conduct for United States
Judges (the “Code”), they should not continue to serve on the panel because they were parties to
the proceeding. See id. The Committee concluded that the judges’ divestiture on March 7, 2007,

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was insufficient to cure their putative disqualification because they had devoted substantial time
to the case before that date. See id. at 139-40.
Circuit Judges Walker and Winter elected not to follow the Committee’s advice, finding
recusal unwarranted under either 28 U.S.C. § 455 or “its more-or-less identical analogue in the
Code of Conduct[.]” Id. at 140. They relied on 28 U.S.C. § 455(f), which provides, in relevant
part: “[I]f any . . . judge . . . to whom a matter has been assigned would be disqualified, after
substantial judicial time has been devoted to the matter, because of the appearance or discovery,
after the matter was assigned to him or her, that he or she . . . has a financial interest in a party
(other than an interest that could be substantially affected by the outcome), disqualification is not
required if the . . . judge . . . divests himself or herself of the interest that provides the grounds
for the disqualification.” Id. (quoting 28 U.S.C. § 455(f)).1
Circuit Judges Walker and Winter found the text of section 455(f) “at least ambiguous as
to whether it should apply to judges who are parties to a lawsuit simply because they possess a
small financial interest in one of the parties or in the subject matter of the litigation[.]” Id. at
141-42. They resolved that ambiguity in favor of the application of that provision in light of:
1.

The legislative history of section 455(f), which was passed “to mitigate

unnecessary restrictions on a judge’s ability to hear cases, thereby solving a specific problem that
had arisen as a consequence of existing disqualification requirements and their application in
class action cases.” Id. at 142 (citation and internal punctuation omitted).
2.

“[S]ound logical reasons to think that § 455(f) applies to a judge who possesses a

small financial interest that also happens to make him a party to a lawsuit before him.” Id.
Circuit Judge Walker observed that section 455(f) “is meant to help judges strike a balance
between the duty to recuse when their impartiality might reasonably be questioned and the need
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Section 455(f) expressly covers U.S. magistrate judges, among others. See 28 U.S.C. § 455(f).

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to resolve cases expeditiously and without undue collateral litigation.” Id. He considered it
“inconsistent with the pragmatism inherent in such balancing to distinguish between ownership
of a single share of stock without more – an interest that is covered by § 455(f) – and ownership
of a single share of stock that in addition renders the judge a party to a derivative class action
lawsuit (assuming the judge divests himself promptly of that interest).” Id. (footnote omitted).
With respect to the Committee’s opinion that the disqualification came too late, Circuit
Judge Walker reasoned that the purpose of section 455(f), conserving judicial resources, was not
“served by requiring recusal of a judge who, unaware of the conflict, has devoted substantial
time to a case, but permitting a judge who has not worked on the case to continue to serve on an
appeal, at a time when reassignment entails few or no costs.” Id. at 143. With respect to the
Committee’s opinion that, if a judge’s interest was that of a party, it must necessarily be an
interest that could be “substantially affected by the outcome,” Circuit Judge Walker concluded
that the Committee had assumed “an anomalous set of circumstances: Section 455(f) applies, but
curative divestment is per se impossible.” Id. (emphasis in original).
Although addressing a different set of conflicts, the Committee has recently recognized
the unique context of class actions and concluded that recusal was not required under Canon
3C(1) of the Code in cases in which an attorney in a case pending before a judge was involved in
a separate, unrelated class action in which the judge or one of the judge’s relatives was a class
member.

U.S. Jud. Conf. Comm. Code Cond., Advisory Op. No. 99 (June 2009).

Committee stated, in relevant part:
The Committee is of the view that there is no absolute requirement of recusal in
cases in which the judge or the judge’s relatives are represented in the unrelated
matter solely in their capacity as class members. In some instances, the
relationship between the judge (or the judge’s relatives) and the attorney for the
class may be quite similar to the relationship between attorney and client in a
conventional setting and, in such cases, recusal would be required. However,
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The

where the class action is a large one, in which the judge (or the judge’s relatives)
are not lead plaintiffs or named plaintiffs, have had no role in selecting the
attorney for the class, have not had – and do not expect to have – personal contact
with the attorney, and have no reasonable expectation of a substantial personal
recovery, the case for recusal is not nearly as strong.
Id.
Like other judges who have discovered that they are members of a class or a putative
class, I find Literary Works persuasive and follow it. See, e.g., Suever v. Connell, 681 F.3d 1064
(9th Cir. 2012); Stern v. Gambello, 678 F.3d 797 (9th Cir. 2012). Because I have invested
substantial time in this case,2 and my wife and I promptly divested ourselves of any interest in
the instant certified class, I decline to recuse myself. My decision “is authorized by § 455(f),
strikes the appropriate balance between securing the interests of impartiality and its appearance
and reducing the practical costs that unnecessary recusal entails, and does not diminish public
respect for the judiciary.” Literary Works, 509 F.3d at 144. The Motion, accordingly, is denied.

NOTICE
In accordance with Federal Rule of Civil Procedure 72(a), a party may serve and file
an objection to this order within fourteen (14) days after being served with a copy thereof.
Failure to file a timely objection shall constitute a waiver of the right to review by the
district court and to any further appeal of this order.
Dated this 16th day of July, 2012.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge

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The complaint was originally filed on September 17, 2008; I first acted on a pretrial motion in this action on
February 10, 2009.

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