Merritt v. Lauderbach et al

Filing 20

ORDER granting 10 Motion to Dismiss; denying 14 Motion for Recusal; adopting 17 Report and Recommendation and Dismissing Complaint. Signed by District Judge Thomas L. Ludington. (SGam)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

SCOTT A. MERRITT,
Plaintiff,

Case No. 12-14141
Honorable Thomas L. Ludington

v.
JONATHAN LAUDERBACH,
CATHERINE DAVIS, DEB FINNEY,
KAREN WAGNER, KATIE GENZEL,
MIDLAND FRIEND OF THE COURT,
and STATE OF MICHIGAN,
Defendants.
/
ORDER DENYING PLAINTIFF’S MOTION FOR RECUSAL, ADOPTING
MAGISTRATE’S REPORT AND RECOMMENDATION, GRANTING DEFENDANTS’
MOTION TO DISMISS, AND DISMISSING PLAINTIFF’S COMPLAINT
The seven Defendants in this case are the same defendants in another case Plaintiff has
filed (Case No. 12-13645). Today’s Court order in that case dismisses Plaintiff’s complaint
against each of the seven Defendants, over Plaintiff’s objection, because they are immune from
suit. This case, filed on September 18, 2012, arises from the same complained of activity —
imposition of court fees and costs — and likewise boils down to a federal civil rights claim under
42 U.S.C. § 1983 for a violation of due process.
On November 29, 2012, Defendants filed a motion to dismiss the action pursuant to
Federal Rule of Civil Procedure 12(b)(6). Plaintiff also filed a motion for Recusal on January
22, 2013.

On February 28, 2013, Magistrate Judge Charles E. Binder issued a report

recommending Defendants’ motion be granted, but not addressing the motion for recusal. Based
on the following, Plaintiff’s motion for recusal will be denied, Defendants’ motion will be
granted, and Plaintiff’s complaint will be dismissed.

I
Before reaching the report and recommendation, Plaintiff’s motion for my recusal must
be addressed.
Plaintiff requested that I recuse myself because, in his words, I have “a long standing
relationship with multiple defendants,” and because I was formerly employed as a judge by
Midland County. Pl.’s Mot. 1, ECF No. 14. According to Plaintiff, “[t]his well established and
well publicly known knowledge relationship presence an obvious conflict in the case.” Id.
Plaintiff continues that as a judge in Midland County, I “served with several of the defendants . .
. and these relations span many years and is deemed both professional and personal in nature.”
Id. According to Plaintiff, “this obvious conflict of interest” will result in “obvious favoritism
and professional courtesy that will be extended.” Id. Finally, Plaintiff concludes that I must
recuse myself “immediately, otherwise [he] will be forced to file and take formal action.” Id.
A
It is important to note that “a judge is presumed to be impartial, and the party seeking
disqualification ‘bears the substantial burden of proving otherwise.’ ” Scott v. Metropolitan
Health Corp., 234 F. App’x 341, 352 (6th Cir. 2007) (unpublished opinion) (quoting United
States v. Denton, 434 F.3d 1104, 1111 (8th Cir. 2006)). “The burden is not on the judge to prove
that he is impartial.” Scott, 234 F. App’x at 352 (citing In re McCarthey, 368 F.3d 1266, 1269
(10th Cir. 2004)). Recusal can be sought under two different sections of title 28 of the United
States Code.
Title 28 U.S.C. § 144, entitled Bias or prejudice of judge, provides as follows:
Whenever a party to any proceeding in a district court makes and files a timely
and sufficient affidavit that the judge before whom the matter is pending has a
personal bias or prejudice either against him or in favor of any adverse party, such
judge shall proceed no further therein . . .
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The affidavit shall state the facts and the reasons for the belief that bias or
prejudice exists, and shall be filed not less than ten days before the beginning of
the term at which the proceeding is to be heard, or good cause shall be shown for
failure to file it within such time. A party may file only one such affidavit in any
case. It shall be accompanied by a certificate of counsel of record stating that it is
made in good faith.
Recusal is mandatory under § 144 once a party submits a timely, sufficient affidavit and his
counsel certifies that the affidavit is made in good faith. Scott, 234 F. App’x at 352 (citing
United States v. Sykes, 7 F.3d 1331, 1339 (7th Cir. 1993)).
Plaintiff has filed no such affidavits in this case. Accordingly, my recusal can only be
grounded in 28 U.S.C. § 455.
B
Title 28 U.S.C. § 455 provides, in relevant part, as follows:
(a) Any justice, judge, or magistrate judge of the United States shall disqualify
himself in any proceeding in which his impartiality might reasonably be
questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party.
28 U.S.C. § 455. “In order to justify recusal under 28 U.S.C. § 455, the judge’s prejudice or bias
must be personal or extrajudicial.” United States v. Jamieson, 427 F.3d 394, 405 (6th Cir. 2005)
(citing United States v. Hartsel, 199 F.3d 812, 820 (6th Cir. 1999)). “‘Personal’ bias is prejudice
that emanates from some source other than participation in the proceedings or prior contact with
related cases.” Jamieson, 427 F.3d at 405 (quoting Youn v. Track, Inc., 324 F.3d 409, 423 (6th
Cir. 2003)).
A district court judge must recuse himself where “a reasonable person with knowledge of
all the facts would conclude that the judge’s impartiality might reasonably be questioned. This
standard is objective and is not based ‘on the subjective view of a party.’ ” United States v.
Nelson, 922 F.2d 311, 319 (6th Cir. 1990). Nonetheless, a motion for recusal should not be
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granted lightly; as the late Chief Justice Rehnquist noted, “a federal judge has a duty to sit where
not disqualified which is equally as strong as the duty to not sit where disqualified.” Laird v.
Tatum, 409 U.S. 824, 837 (1972) (emphasis omitted).
C
A hearing was held concerning Plaintiff’s motion for recusal on February 12, 2013. I
discussed with Plaintiff the reason he moved for my recusal: my work as a judge for Midland
County. I explained that I did work with three of the individual Defendants — employees of the
Friend of the Court during my tenure — and that Jonathan Lauderbach succeeded me to that
bench in 2006. I invited Plaintiff to advance any questions he might have beyond that historical
relationship. He offered none.
While it is true I worked as a judge for Midland County, and with many of the individual
Defendants, the relationships did not extend beyond my duties as judge and colleague. While
familiar and friendly, there is nothing “extrajudicial” about my relationships with any of
Defendants at this point.

See Jamieson, 427 F.3d 405.

Further, Plaintiff has elicited no

evidence, save his statements that my “bias is obvious,” to carry his burden of establishing why
my recusal is warranted. Noting that it is my duty to sit where not disqualified, the lack of any
extrajudicial relationship between myself and the parties to this case, and Plaintiff’s failure to
produce evidence to the contrary, Plaintiff’s motion for my recusal will be denied.
II
Having addressed Plaintiff’s motion for recusal, the magistrate judge’s report and
recommendation will be adopted. As of today’s date, no party has filed any objections to the
magistrate judge’s report and recommendation.

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The election to not file objections to the

magistrate judge’s report releases the Court from its duty to independently review the record.
Thomas v. Arn, 474 U.S. 140, 149 (1985).
III
Accordingly, it is ORDERED that Plaintiff’s motion for recusal, ECF No. 14, is
DENIED.
It is further ORDERED that the magistrate judge’s report and recommendation, ECF No.
17, is ADOPTED.
It is further ORDERED that Defendants’ motion to dismiss, ECF No. 10, is GRANTED.
It is further ORDERED that Plaintiff’s complaint, ECF No. 1, is DISMISSED with
prejudice.

Dated: March 19, 2013

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing
order was served upon each attorney or party of record
herein by electronic means or first class U.S. mail on
March 19, 2013.
s/Tracy A. Jacobs
TRACY A. JACOBS

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