People for the Ethical Treatment of Animals, Inc. v. Tri-State Zoological Park of Western Maryland, Inc. et al

Filing 35

MEMORANDUM AND ORDER denying 25 Motion for Disqualification of Presiding Judge. Signed by Judge Marvin J. Garbis on 2/27/2018. (krs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
PEOPLE FOR THE ETHICAL TREATMENT *
OF ANIMALS, INC.,
*
Plaintiff
*
vs.
*
TRI-STATE ZOOLOGICAL PARK OF
WESTERN MARYLAND, INC., ET AL. *
Defendants
*

CIVIL ACTION NO. MJG-17-2148

*

*
*
*
*
*
*
*
MEMORANDUM AND ORDER RE: DISQUALIFICATION MOTION

*

The Court has before it the Motion for Disqualification
of Presiding Judge [ECF No. 25] and the materials submitted
relating thereto.

The Court finds that a hearing is

unnecessary.
Defendants assert that statements made by the Court during
an initial informal teleconference with counsel warrant the
instant motion and the required recusal of the undersigned
Judge.

The Court finds that Defendants have not fully and

accurately presented the statements made by the Court and that
there is no reasonable basis for the required recusal of the
undersigned Judge.
This is a case dealing with the alleged mistreatment of
animals at a small zoological park (“Zoo”) in Cumberland,
Maryland, which is owned and operated by the Defendants.
January 11, 2017, the Court held an informal telephone

On

conference with counsel to manage the case.

The teleconference

with parties included discussions regarding whether Plaintiff
anticipates needing any kind of preliminary relief, Defendants’
assertion that the Department of Agriculture has regularly
inspected the Zoo, the length and extent of fact and expert
discovery that parties would need (including site inspection by
experts), and whether Defendants wanted to join any federal
agencies in the action. 1
There is no record of the teleconference but it was
followed by the issuance of the Scheduling Order [ECF No. 22] in
which the Court stated “[p]ursuant to the conference held with
counsel on this date, it appears that there may be significant
factual issues presented in regard to Plaintiff’s claims.”

The

Court was referring to the discussion with counsel regarding the
Internet posting of “reviews” of Defendants’ Zoo on such sites
as “Yelp.com,” which included both derogatory and positive
comments regarding the Zoo and its management.

The Court

recalls stating that both types of reviews – positive and
negative – existed, and then turned its attention to discovery

1 The Court also indicated on the call that it had decided to
deny Defendants’ Motion to Dismiss and that a decision would
follow. See Scheduling Order at 1, ECF No. 22 (“The Court will,
by separate Order, deny Defendants’ motion seeking dismissal of
the Complaint.”). The Court issued the corresponding Memorandum
and Order a few days later [ECF No. 23].
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scheduling to plan the resolution of what it expected to be
significant factual disputes.
Defendants state in the motion that “[i]t appears that,
based upon independent internet research, the presiding Judge
has already decided that those reviews on the internet are true
and has formed a dim view of Defendants’ operations.

This

reliance upon unsourced and anonymous hearsay is not fair to the
Defendants and shows a bias and partiality that demands recusal
or disqualification.”

Def.’s Mot. ¶ 6.

However, as plainly stated during and immediately following
the teleconference, the Court recognized that there were factual
issues presented regarding Plaintiff’s claims that may require
resolution.

The Court had not decided, has not yet decided, and

did not indicate any predisposition regarding the resolution of
the issues.

Nor did the Court engage in any “research” other

than merely looking at normal Internet references to the Zoo.
The pertinent statute, 28 U.S.C. § 455 (a), states:
Any justice, judge, or magistrate judge of
the United States shall disqualify himself
in any proceeding in which his impartiality
might reasonably be questioned.
Recusal pursuant to Section 455(a) is required “if a
reasonable man, cognizant of the relevant circumstances
surrounding a judge’s failure to recuse, would harbor legitimate
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doubts about the judge’s impartiality.”

See United States v.

Bremers, 195 F.3d 221, 226 (5th Cir. 2000).
In other words, “[d]isqualification is required if a
reasonable factual basis exists for doubting the judge's
impartiality.

The inquiry is whether a reasonable person would

have a reasonable basis for questioning the judge's
impartiality, not whether the judge is in fact impartial.”
United States v. Cherry, 330 F.3d 658, 665 (4th Cir. 2003)
(citations omitted).

A “presiding judge is not, however,

required to recuse himself because of ‘unsupported, irrational,
or highly tenuous speculation.’”

Id. (citations omitted).

There is no basis for any reasonable person, knowing the
facts, to harbor any legitimate question about the undersigned
Judge’s impartiality in the instant case.
There is no prohibition against a federal judge’s access to
the Internet to obtain background information regarding the
subject of a case before the Court.

The Court is mindful of the

difference between disallowed factual research on the internet
that is “necessary” to decide the case or meant to “fill a
factual gap in the record,” and “background information” that is
not of factual consequence in determining the case.

See, e.g.,

ABA Formal Opinion 478 at 6 (“The key inquiry here is whether
the information to be gathered is of factual consequence in
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determining the case.”). 2

See also Rowe v. Gibson, 798 F.3d 622,

628 (7th Cir. 2015), which states:
We must acknowledge the need to distinguish
between judicial web searches for mere
background information that will help the
judges and the readers of their opinions
understand the case, web searches for facts
or other information that judges can
properly take judicial notice of (such as
when it became dark on a specific night . .
. . ) . . . and web searches for facts
normally determined by the factfinder after
an adversary procedure that produces a
district court or administrative record.
It is clear that the internet access in the instant case
was only to obtain mere background information by a Judge
plainly recognizing that any factual determination could be made
only after an appropriate adversarial proceeding.

In fact, the

Court envisioned this adversarial proceeding would include four
months of fact discovery, additional months for expert
discovery, and “visitation and inspection of the Defendants’
premises by qualified experts.”

ECF No. 22.

For the foregoing reasons, the Motion for Disqualification
of Presiding Judge [ECF No. 25] is DENIED.
SO ORDERED, this Tuesday, February 27, 2018.
/s/__________
Marvin J. Garbis
United States District Judge
2 http://www.abajournal.com/images/main_images/
FO_478_FINAL_12_07_17.pdf.
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