Hewitt v. McCrary, MD et al

Filing 51

ORDER Denying Defendant Allure Medical Spa, PLLC's 45 Motion for Recusal and Disqualification of Judge. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
VICTORIA HEWITT,
Plaintiff,

Case No. 17-cv-10917
Hon. Matthew F. Leitman

v.
RUTHIE McCRARY, MD, and
ALLURE MEDICAL SPA, PLLC,
Defendants.
__________________________________________________________________/
ORDER DENYING DEFENDANT ALLURE MEDICAL SPA, PLLC’S
MOTION FOR RECUSAL AND DISQUALIFICATION OF
JUDGE (ECF #45)
Defendant Allure Medical Spa, PLLC (“Allure”) has filed a Motion for
Recusal or Disqualification of Judge (the “Recusal Motion”). (See ECF #45.) For
the reasons explained below, the motion is DENIED.
I
A
In this diversity action, Plaintiff Victoria Hewitt alleges that she suffered
serious injuries as a result of medical malpractice committed by Defendant Ruthie
McCrary, M.D. (See Compl., ECF #1.) Hewitt further alleges that at the time of Dr.

1

McCrary’s alleged negligence, Dr. McCrary was an agent or employee of Allure and
that Allure is therefore vicariously liable for Dr. McCrary’s malpractice.1 (See id.)
B
In June of 2018, Hewitt settled with Dr. McCrary but not with Allure. On or
about June 29, 2018, Hewitt and Dr. McCrary submitted a proposed stipulated order
dismissing with prejudice Hewitt’s claim against Dr. McCrary. The Court then
entered that stipulated order (the “Stipulated Dismissal Order”) and dismissed the
claim against Dr. McCrary with prejudice. (See ECF #28.)
C
On July 23, 2018, Allure filed a motion for summary judgment. (See Mot. for
Summ. J., ECF #30.) Allure argued that the dismissal with prejudice of Hewitt’s
claim against Dr. McCrary compelled the dismissal of Hewitt’s vicarious liability
claim against Allure. (See id.) Allure relied upon the Michigan Supreme Court’s
decision in Al-Shimmari v. Detroit Medical Center, 731 N.W.2d 29, 36-38 (Mich.
2007). In that case, the state court held that an order dismissing a plaintiff’s claim

1

Hewitt’s Complaint does not use the words “vicarious liability” when setting forth
the basis of Allure’s alleged liability. But many of the specific allegations of medical
malpractice are made against Dr. McCrary, and Hewitt alleges that Dr. McCrary is
an employee or agent of Allure. (See Compl. at ¶32, ECF #1 at Pg. ID 8-9.) And in
response to Allure’s motion for summary judgment, Hewitt admitted that the theory
asserted against Allure is, at least in part, one of “vicarious liability.” (See Mot. for
Summ. J. at ¶2, ECF #30 at Pg. ID 465 (“Plaintiff alleges that Allure is vicariously
liable for the actions of Dr. McCrary”); Resp. to Mot. for Summ. J. at ¶2, ECF #32
at Pg. ID 510 (admitting that contention).)
2

against an agent with prejudice precludes the plaintiff from pursuing a vicarious
liability claim against the agent’s principal. See Al-Shimmari, 731 N.W.2d at 36-38.
D
On August 20, 2018, Hewitt filed a response to Allure’s motion for summary
judgment (See Resp. to Mot. for Summ. J., ECF #32) and a motion under Rule
60(b)(1) of the Federal Rules of Civil Procedure to set aside the Stipulated Dismissal
Order (see Mot. for Relief, ECF #33). In Hewitt’s response to the motion for
summary judgment, she acknowledged that if the Stipulated Dismissal Order
remained in place, she could not continue to litigate her vicarious liability claim
against Allure. (See Resp. to Mot. for Summ. J. at ¶4, ECF #32 at Pg. ID 510.) In
the Rule 60(b)(1) motion, Hewitt urged the Court to vacate the Stipulated Dismissal
Order. (See Mot. for Relief, ECF #33.)
Hewitt argued that she was entitled to relief from the Stipulated Dismissal
Order under Rule 60(b)(1) because a “mistake[]” led to the entry of that order. (See
id. at ¶6, ECF #33 at Pg. ID 531.) Hewitt contended that her attorney made an error
when he agreed to dismiss her claim against Dr. McCrary with prejudice rather than
insisting upon a dismissal without prejudice – which would not have barred Hewitt
from proceeding against Allure. See Grimmer v. Lee, 872 N.W.2d 725, 729 (Mich.
Ct. App. 2015) (explaining that “a dismissal without prejudice is not a dismissal on
the merits” that precludes “a further action based on the same facts”). Hewitt insisted

3

that she and her attorney had consistently expressed her desire to continue litigating
against Allure after settling with Dr. McCrary and that her attorney never would
have agreed to the Stipulated Dismissal Order if he had understood that the entry of
that order would extinguish her claim against Allure. (See Mot. for Relief, ECF #33
at Pg. ID 540-42.)
As support for Hewitt’s claim that her counsel made a mistake in agreeing to
the Stipulated Dismissal Order, Hewitt directed the Court to settlement
correspondence between her counsel and Dr. McCrary’s counsel. In that
correspondence, Hewitt’s attorney asked Dr. McCrary’s attorney if “a covenant not
to sue” Dr. McCrary – as opposed to a release of claims against the doctor – would
be “acceptable so that [Hewitt] can continue against Allure.”2 (Email dated June 4,
2018, ECF #33-4 at Pg. ID 558; emphasis added.)

Dr. McCrary’s counsel

responded: “yes.” (Response email dated June 4, 2018, ECF #33-4 at Pg. ID 557.)
As further support for Hewitt’s claim that her attorney erred in approving the
Stipulated Dismissal Order, Hewitt attached to her motion the Covenant Not to Sue

2

Under Michigan law, a plaintiff’s release of claims against an agent extinguishes
any vicarious liability claims that the plaintiff may have against the agent’s principal
based upon the agent’s acts and omissions. See Theophelis v. Lansing General
Hosp., 424 N.W.2d 478, 481, 483 (Mich. 1988) (Op. of Griffin, J.); id. at 494 (Op.
of Boyle, J.) In contrast, a plaintiff’s covenant not to sue an agent does not
extinguish the plaintiff’s vicarious liability claims against the agent’s principal. See
id. at 492 (Op. of Griffin, J.) (citing Boucher v. Thomsen, 43 N.W.2d 866 (Mich.
1950)).
4

that she executed to resolve her claim against Dr. McCrary. (See ECF #33-2.) The
Covenant Not to Sue provided that (1) the parties’ settlement resolved “only”
Hewitt’s claim against Dr. McCrary and (2) Hewitt intended to “preserve” her claim
against Allure:
WHEREAS, Victoria Hewitt, and Ruthie McCrary, M.D.,
only, have reached an amicable compromise of their
differences and desire to resolve and put to rest their
differences; and
WHEREAS, Victoria Hewitt wishes to reserve all rights,
claims, and causes of action she may have against Allure
Medical Spa, PLLC, a Michigan corporation, and all
agents, and/or employees thereof, including the right to
proceed to trial and possible judgment against those
individuals and their respective corporations.
(Id. at Pg. ID 551.)
Dr. McCrary did not file a response opposing Hewitt’s motion to vacate the
Stipulated Dismissal Order within the time period allowed under the Court’s Local
Rules. But the Court did not feel comfortable ruling upon the motion without
hearing from Dr. McCrary. Accordingly, the Court ordered Dr. McCrary to file a
written response to the motion. (See Order, ECF #36.)
In Dr. McCrary’s response, she “[a]mit[ted] that Plaintiff intended to continue
[her] case against Defendant Allure.” (Dr. McCrary’s Response, ECF #37 at Pg. ID
608.) She insisted, however, that the entry of the Stipulated Dismissal Order was
“not a mistake” because Hewitt’s counsel agreed to the entry of the order after

5

reviewing it. (Id.) She further argued that she would suffer prejudice if the Court
vacated the Stipulated Dismissal Order. (See id.)
Allure also responded to Hewitt’s motion to vacate the Stipulated Dismissal
Order. (See Allure’s Response, ECF #35.) Allure argued that Hewitt’s counsel’s
stipulation to the entry of the Stipulated Dismissal Order did not rise to the level of
a “mistake” justifying relief under Rule 60(b)(1). (Id. at 584-86.) Allure cited a
number of Sixth Circuit decisions in support of its position. (See id.)
E
The Court held a hearing on Hewitt’s motion to vacate the Stipulated
Dismissal Order on October 22, 2018. During that hearing, the Court asked counsel
for Dr. McCrary a lengthy series of questions concerning whether the Stipulated
Dismissal Order was consistent with the terms of the settlement between the doctor
and Hewitt, and counsel acknowledged at least some inconsistency:
THE COURT: You do a reasonably substantial
amount of medmal defense, isn’t that correct?
MR. WULFMEIER: I do.
THE COURT: And it’s not unusual, is it, for you to
be in cases where you represent a medical professional in
a suit where there’s claims against your client and against
an entity with which your client is affiliated like in this
case?
MR. WULFMEIER: Yes.

6

THE COURT: And I have to believe that as somebody
experienced in this field, you are aware of the, is it AlShimmari case from the Michigan Supreme Court?
MR. WULFMEIER: Yes.
THE COURT: And you know that what that case says,
if a plaintiff dismisses with prejudice a claim against the
agent, the claim against the principal is extinguished,
right?
MR. WULFMEIER: Yes.
THE COURT: All right. So what I’m struggling with
when I think about this from your perspective is, it seems
quite clear that Mr. Weiner tells you, my intention is to
resolve this in a way that allows me to continue my claim
against Allure and he sends that over in an e-mail, and you
say that that is -- that’s fine with you. And a covenant not
to sue for that reason is okay with you.
That’s in the attached e-mails, right?
MR. WULFMEIER: Yes.
THE COURT: All right. So at that point, knowing
that Mr. Weiner’s intent is to preserve the ability to pursue
his claim against Allure, and that you’ve agreed with that,
isn’t it a mutual mistake that you -- that this would result
here in a dismissal with prejudice?
In other words, with your knowledge of the AlShimmari case and knowing what Mr. Weiner wants and
agreeing to it, how could I find that your sending the
dismissal with prejudice over was anything other than kind
of a mistake on your end?

7

MR. WULFMEIER: Well, it wasn’t a mistake, your
Honor, and it wasn’t a gotcha at all. It was what I normally
do under these circumstances, whether I know of AlShimmari or not. It is my habit and custom in cases like
this, even with a covenant not to sue, to send over a
stipulation and order of dismissal with prejudice.
Clearly, clearly, Mr. Weiner was aware of the fact that
this was with prejudice. I was not trying to trick him. I
was not trying to pull Al-Shimmari and say, hey, guess
what, I gotcha, and do a favor for Allure. This is what I
normally do.
THE COURT: But help me understand that. I’m
trying to put myself in Mr. Weiner’s shoes, okay?
MR. WULFMEIER: I understand.
THE COURT: And you say that’s what you normally
do and you have a fine reputation in the community, one
that I knew before I took the bench and I still know now.
MR. WULFMEIER: Thank you.
THE COURT: But if I was in Mr. Weiner’s shoes and
we had just agreed to resolve it with a covenant not to sue
for the precise purpose of allowing my client to proceed
against Allure, and you sent me this, and I knew of AlShimmari and I knew that you knew of Al-Shimmari, I
would call you up and say, hey, Lee, you’re better than
this. What in the world are you doing trying to send this
over?
You’re telling me you’re not trying to pull a fast one
and I don’t disbelieve you but I’m having trouble
understanding how, having just agreed to settle on terms
that allow him to pursue Allure, you send over a document
that blocks him from suing Allure.

8

MR. WULFMEIER: I don’t think it was a mistake and
again, I don’t think it was a gotcha. I was not trying to do
that. I have great respect for Mr. Weiner. I’m not trying
to play games with anybody in this situation. Again, this
is what I normally do under these circumstances. I was not
thinking, oh, there is Al-Shimmari, I’m going to send over
this stip and order with prejudice and therefore, he won’t
be able to pursue his claim against Allure.
THE COURT: But how does this even make sense?
In other words, you say this is what you normally do. I’m
trying to wrap my head around this.
Step one of what you normally do is agree to resolve a
case on terms that allow somebody to move ahead with the
claim against the principal. And step two is, send them an
order that precludes them from doing that. How does that
even make sense as a normal course of practice?
MR. WULFMEIER: It probably doesn’t make sense
in the normal course of practice. What it does is, I agreed
to a stip -- or I agreed to the covenant not to sue and it was
then my position and what I normally do, is send out -- tell
my assistant, we have a case dismissed now, send over a
stipulation and order of dismissal with prejudice, which I
normally do.
I wasn’t thinking, well, I’ve agreed to this, now I’m
going to trick him into that. It’s just what I say, your
Honor. It’s my normal -- what I normally do. I wasn’t
thinking that, oh, if I send over the stipulation and order of
dismissal with prejudice, I’m going to really take his case
out of play.
THE COURT: Isn’t another way to say this, I also -that you also weren’t intending to get a dismissal with
prejudice, right? Because you knew that Mr. Weiner
didn’t want to give that or you had to assume that.
Wouldn’t you assume that he knows Al-Shimmari, you
know Al-Shimmari, he just told you he wants to continue.
9

Isn’t the most rational view here of -- that maybe it
wasn’t a mistake that it went out from your office but it
couldn’t really have been your intent to get a dismissal
with prejudice, right?
MR. WULFMEIER: Well, it would have been my
intent to get that but I understand the Court’s position and
inquiring as to why that was even sent. Again, I don’t
mean to be redundant. I don’t mean to be disrespectful.
What I said and what I mean is that, we had a covenant
not to sue that came over. We signed that. We agreed to
it. Clearly, he can continue his case against Allure. By
my sending a stip and order of dismissal with prejudice, I
was not trying to eliminate his position as it relates to
Allure.
***
THE COURT: Did you believe that you had
negotiated for your client a dismissal with prejudice? Did
you believe that was implicit in the deal you had made
with Mr. Weiner? Or was that implicitly not part of the
deal you had with Mr. Weiner?
MR. WULFMEIER: Usually -- I don’t know if that
was agreed to or not agreed to, to be very candid. Like I
say, we agreed to the covenant not to sue. We agreed to
the amount. I then dictated a stipulation and order of
dismissal with prejudice and all of that documentation
went forward. I don’t think there was a thought one way
or the other, other than the fact that I typically, as I said
before, do this for my clients.
THE COURT: Isn’t it fair to say, as Mr. Weiner does,
that the agreement that was reached was this -- the claim
from Hewitt to McCrary will be settled on terms that allow
Hewitt to continue against Allure?

10

MR. WULFMEIER: I don’t think that’s unfair to say
that.
THE COURT: All right. If that’s -- if that was the
agreement that was reached between the parties, isn’t the
entry of the dismissal with prejudice inconsistent with the
parties’ agreement?
MR. WULFMEIER: I don’t know if it was an
agreement between the parties. I think that was the intent
of Mr. Weiner. I don’t know if I agreed that you go
forward with this case. I presumed that that was what we
do in a covenant not to sue, that clearly, he would have the
right to continue. And if that’s the case, that would be
inconsistent with the stipulation and order of dismissal
with prejudice. I don’t disagree with that. I think I even
indicated that I knew that he was going to continue against
Allure.
THE COURT: Yeah. Here is -- the exchange was, in
an e-mail from Mr. Weiner to you, June 4th of this year, at
2:10 on my record, page I.D. 558. He writes:
“Lee, not agreeing to accept yet but will a covenant not
to sue be acceptable so that my client can continue against
Allure?”
And your answer is: “Yes.”
MR. WULFMEIER: Mm-hmm.
THE COURT: If I try to make this argument in the
strongest terms for Mr. Weiner, the argument goes, the
agreement between the parties, between Hewitt and
McCrary, was a settlement that allows the claim to go
forward. So the entry of the dismissal with prejudice is
inconsistent with the deal the parties reached.
Do you interpret your “yes” e-mail differently?

11

MR. WULFMEIER: No, I don’t.
THE COURT: So you acknowledge the inconsistency
between the intent of the parties when the deal was
reached and then the entry of the order?
MR. WULFMEIER: Well, it -- I don’t disagree with
that. I sort of disagree with the intent of the parties. I was
aware that he wanted to continue with his case against
Allure. The stipulation and order of dismissal, again, with
prejudice, was not an attempt at gotcha. It was what I
normally do. I can see the Court’s concern about the
inconsistency and I’m not denying it.
THE COURT: But I’m saying, even if that’s what you
normally do, that might be what you -- there is nothing
underhanded about saying these two things. One, at step
one, the parties reached an agreement where their shared
intent was that the case will be settled on terms that allow
the plaintiff’s claim to move forward.
Do you agree with step one?
MR. WULFMEIER: I do.
THE COURT: And step two, you say, you know what,
that may have been the agreement but I’m going to send
this order over and see if, notwithstanding what we already
did, it’s acceptable. It’s not hiding the term “with
prejudice.” It’s not in Greek. Here it is. I’m sending it
over. And he signed it. It seems to me that may be what
happened.
Do you agree with that?
MR. WULFMEIER: I don’t disagree with that.
(Tr. 10/22/18, ECF #50 at 1-8, 12-15, Pg. ID 846-53, 857-60; emphasis added.)

12

At the conclusion of the hearing, the Court had serious concerns about
whether the Stipulated Dismissal Order fairly and accurately reflected the parties’
agreement and about whether to leave the order in place. But the Court was not yet
convinced that Hewitt had demonstrated a right to relief under Rule 60(b)(1). The
Court therefore directed the parties to file supplemental briefs. The Court explained
to Hewitt that in order to obtain the relief she requested under Rule 60(b)(1), she
would have to cite the strongest federal authority in support of her position. Hewitt
filed a supplemental brief on October 29, 2018 (see ECF #41), and Allure filed its
response to Hewitt’s supplemental brief on November 5, 2018 (see ECF #42).
After the Court received and reviewed the supplemental briefs, the Court felt
the need to conduct its own additional research with respect to Rule 60(b)(1). The
Court was seeking a more comprehensive understanding of the background and
purpose of the rule as well as additional examples of how federal courts had applied
the rule in practice. During this research, the Court learned that Rule 60(b)(1)
applies only to final orders and does not cover interlocutory orders like the Stipulated
Dismissal Order. See United States v. Certain Land Situated in City of Detroit,
Wayne Cty., Mich., 178 F.Supp.2d 792, 799 (E.D. Mich. 2001) (“Hence, [Rule
60(b)] applies only to final judgments or orders.”) (emphasis in original); see also
United States ex rel. Streck v. Allergan, Inc., 288 F.R.D. 88, 91 (E.D. Pa. 2012)
(quoting Sieg v. Sears Roebuck & Co., 2012 WL 1657921, at *2 (M.D. Pa. May 11,

13

2012)) (“In a case with multiple parties and claims, an order that disposes of fewer
than all of those claims and parties is not deemed ‘final.’”). Whether to set aside an
interlocutory order – like the Stipulated Dismissal Order – is governed by Rule 54(b)
of the Federal Rules of Civil Procedure.
The Court scheduled a telephonic status conference with counsel to update
them on its research and to discuss next steps.
F
The Court convened the telephonic status with counsel (only) on November
29, 2018. The Court began by updating counsel on the results of its research and on
its preliminary conclusion that “at least as far as I can tell now, Rule 60(b) does not
apply to the stipulated order I entered.” (Transcript of 11/29/2018 Status Conf. at 5,
ECF #44 at Pg. ID 653.) The Court acknowledged that it had not “heard from the
parties on this point” and that it would “give [the parties] a chance to opine on that
if [they] want.” (Id. at 6, Pg. ID 654.) But the Court told counsel that its “inclination”
was to “deny the Rule 60(b)(1) motion because it’s the wrong rule and it doesn’t
apply to the order I entered.” (Id.)
The Court then told counsel that it had “real concerns about leaving [its] order
in place, the dismissal with prejudice.” (Id.) The Court said: “I’m concerned that in
the big scheme of thing[s], it – it does not ultimately work a just result and on the
contrary, I’m concerned that there’s a serious case to be made that leaving that order

14

in place ultimately creates an injustice here.” (Id.) The Court then explained that
while researching Rule 60(b)(1), it learned “that Rule 54(b) may provide a basis on
which to vacate the order that [it] entered and to reenter it as a dismissal without
prejudice.” (Id.) The Court described Rule 54(b) and cited a Sixth Circuit decision
setting forth criteria to apply under the rule. (See id. at 6-7, Pg. ID 654-55 (citing
Rodriguez v. Tenn. Laborers Health and Welfare Fund, 89 F. App’x 949, 959 (6th
Cir. 2004))). The Court then authorized Hewitt to file a motion under Rule 54(b)
seeking relief from the Stipulated Dismissal Order. (See id. at 7, Pg. ID 655.)
The Court next shared with counsel its preliminary view that the appropriate
course of action would be to vacate the Stipulated Dismissal Order and replace it
with an order of dismissal without prejudice:
I’m not going to hide the ball here. My inclination is to
vacate the order and reenter it as a dismissal with[out]
prejudice because I – my initial inclination is that that is
the – the most just way to proceed.
(Id.; emphasis added.) The Court next told Hewitt’s counsel that it was giving him
a “real opportunity” to obtain relief from his error and that he should “take advantage
of it by filing a substantial brief and motion that cite[s] important and persuasive
authorities that would justify setting aside this order.” (Id.) The Court told defense
counsel that they each would have an opportunity to file a brief responding to and
opposing any arguments made by Hewitt’s counsel in his anticipated motion. (See
id.)
15

At that point, counsel for Allure objected. She found it “unbelievable” that
the Court “insert[ed]” itself into the action on behalf of Hewitt and in support of her
effort to obtain relief from the dismissal order. (Id. at 9-10, Pg. ID 657-58.) Counsel
added that, in her view, Hewitt was not entitled to relief. (Id. at 11, Pg. ID 659.)
In response, the Court assured Allure’s counsel that it had not “reached any
conclusions” and that Allure would have ample opportunity to make any and all
appropriate arguments against Hewitt’s request for relief:
THE COURT:
Listen to me. I’m trying to make
this as clear as I can. You are going to have a full written
response to his motion in which you will have 25 pages to
argue that it’s not a manifest injustice and that –
MS. ANDREOU: Okay.
THE COURT:
-- I shouldn’t have let him file
this motion and any other arguments you want. The
purpose of this phone call is just to come up with a path
going forward. You will have ample opportunity to make
a written record. I may even hold another hearing. I
haven’t reached any conclusions.
We’re just going forward and I’m telling you my
inclinations and how I’m going to proceed. You can say
whatever you want in your written response.
(Id.; emphasis added.)
G
On January 2, 2019, Allure filed the Recusal Motion. (See ECF #45.) Allure
argues that pursuant to 28 U.S.C. § 455(a), the Court must recuse itself from further

16

proceedings in this action because “a reasonable, objective person, knowing all of
the circumstances,” would “question[]” the Court’s “impartiality.” (Id. at ¶2, Pg. ID
663 (quoting United States v. Sammons, 918 F.2d 592, 599 (6th Cir. 1990)).) Allure
contends that the Court’s “strong opinions in favor of allowing [Hewitt] to amend
the stipulated order of dismissal with prejudice, and [its] legal ‘counsel’ in providing
[Hewitt] with a roadmap to achieve this result,” evidence a “deep-seated favoritism
that makes fair judgment impossible.” (Id. at ¶14, Pg. ID 667 (quoting Sammons,
918 F.2d at 599).) Allure is “most troubl[ed]” by the Court’s statement during the
telephonic status conference that its “initial inclination” was to vacate the Stipulated
Dismissal Order. (Id. at 6, Pg. ID 680.) While Allure highlighted the Court’s “initial
inclination” remark, it did not mention the Court’s assurance that it had not “reached
any conclusions” and that it would give Allure “ample opportunity” – including,
possibly, at another hearing – to argue against a request for relief by Hewitt under
Rule 54(b). (Transcript of 11/29/2018 Status Conf. at 11, ECF #44 at Pg. ID 659.)
H
On January 7, 2019, Hewitt filed a motion under Rule 54(b) to strike the order
of dismissal with prejudice. (See Mot. To Strike, ECF #46.) Hewitt argues that
allowing the Stipulated Dismissal Order to stand would result in a manifest injustice
and that relief from the order is therefore warranted under Rule 54(b). Hewitt asks
the Court to replace the Stipulated Dismissal Order with an order of dismissal

17

without prejudice. Allure responded to Hewitt’s motion to strike on February 6,
2019. (See ECF #49.) Dr. McCrary has not filed a response opposing Hewitt’s
request that the Court vacate the Stipulated Dismissal Order.
II
A
Allure brings its motion for recusal under 28 U.S.C. § 455(a). That statute
provides that a district judge “shall disqualify himself in any proceeding in which
his impartiality might reasonably be questioned.” The test for recusal under the
statute is an objective one: “a judge must disqualify himself ‘where a reasonable
person with knowledge of all the facts would conclude that the judge’s impartiality
might reasonably be questioned.’” Burley v. Gagacki, 834 F.3d 606, 616 (6th Cir.
2016) (quoting United States v. Adams, 722 F.3d 788, 837 (6th Cir. 2013)).
The analysis of a recusal motion starts from the premise that a federal district
judge “is presumed to be impartial.” Scott v. Metro. Health Corp., 234 F. App’x 341,
352 (6th Cir. 2007) (citing United States v. Denton, 434 F.3d 1104, 1111 (8th Cir.
2006)).

Thus,

“[t]he

burden

is

on

the

moving

party

to

justify

disqualification.” Burley, 834 F.3d at 616 (citing Consol. Rail Corp. v. Yashinsky,
170 F.3d 591, 597 (6th Cir. 1999)). And the burden is “substantial.” Denton, 434
F.3d at 1111 (quoting Fletcher v. Conoco Pipeline Co., 323 F.3d 661, 664 (8th Cir.
2003)). Moreover, a party seeking disqualification faces an “uphill battle” where,

18

as here, the party claims that the bias “ar[o]se during the course of current or prior
proceedings.” Burley, 834 F.3d at 616 (citing Liteky v. United States, 510 U.S. 540,
555-56 (1994)). Indeed, “opinions formed by the judge on the basis of facts
introduced or events occurring in the course of current proceedings, or of prior
proceedings, do not constitute a basis for a bias or partiality motion unless they
display a deep-seated favoritism or antagonism that would make fair judgment
impossible.” Litecky, 510 U.S. at 555 (emphasis added).
B
Allure has failed to carry its burden of showing that recusal is required here.
Allure has not cited a single case in which a district court has recused itself, or a
circuit court or the Supreme Court has required recusal, under circumstances like
those presented here. In fact, in most of the cases that Allure cited in its motion, the
courts held that recusal was not required.
The only two cases cited by Allure in which recusal was required are easily
distinguishable. In Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847
(1988), the Supreme Court held that a district judge should have recused himself
from presiding over a bench trial where he served as a trustee of a private university,
the university was negotiating with one of the parties to the action concerning a real
estate transaction, and the “success and benefit” of the potential transaction to the
university depended, at least in part, on the outcome of the litigation. Id. at 850.

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Likewise, in Alexander v. Primerica Holdings, Inc., 10 F.3d 155, 163 (3rd Cir.
1993), the court held that a district judge should have recused himself from presiding
over a bench trial where, among other things, he “tarred” a class of plaintiffs as bad
actors “despite an absence of record evidence” and exhibited a “personal interest in
the litigation” by filing a letter response to a petition for mandamus even though the
Third Circuit had previously discouraged that practice. Id. at 164-66.

The

circumstances in this action bear no resemblance to the circumstances in Liljeberg
and Alexander. Allure likely had difficulty finding analogous authority because, as
described below, courts, including the Sixth Circuit, have repeatedly held that
recusal is not warranted or required on the main ground urged by Allure.
C
Allure primarily argues that the Court must recuse itself because it expressed
its “inclination” to vacate the Stipulated Dismissal Order during an on-the-record
telephone status conference. (Recusal Motion, ECF #45 at Pg. ID 680.) In Allure’s
words, the Court’s statement of its inclination is the “most troubling” aspect of the
Court’s conduct. (Id.) But Allure omits other critical statements by the Court and
overstates the significance of the Court’s statement of its inclination.
Shortly after expressing its “inclination,” the Court assured Allure that it
would have a “full opportunity” to persuade the Court not to vacate the Stipulated
Dismissal Order and that the Court “ha[d]n’t reached any conclusions” regarding

20

whether to vacate that order. (Transcript of 11/29/2018 Status Conf. at 11, ECF #44
at Pg. ID 659; emphasis added.) As noted above, Allure did not mention either of
those statements by the Court in its motion papers. In the context of these additional
statements by the Court, the Court’s expression of its “inclination” – which, by
definition, falls far short of a firm conviction – does not reflect that the Court had
prejudged Hewitt’s right to relief from the dismissal with prejudice. On the contrary,
when the Court voiced its “inclination,” it was merely expressing a preliminary view
of the matter – a view that was based upon the prior proceedings before, and the
submissions to, the Court. And “[i]t is well-settled that a judge who expresses
preliminary views inside the court, based upon knowledge acquired in court
proceedings, is not recusable.” Goya Foods, Inc. v. Unanue-Casal, 275 F.3d 124,
130 (1st Cir. 2001) (emphasis in original; citations omitted). “This is so plainly
settled that [a] request for recusal” based upon a judge’s expression of his initial
thoughts may be “frivolous.” Id.
The First Circuit’s decision in Goya Foods is instructive. In that case, the
district court had entered an order restraining the defendants from transferring
certain assets. The plaintiff later presented to the court evidence that the defendants
had violated the order, and the court issued an order requiring the defendants to
personally appear and show cause why they should not be held in contempt. The
defendants did not appear as directed. Instead, two attorneys who had not yet been

21

formally retained by the defendants appeared and asked for more time to review the
file. In response, the court expressed its preliminary view that the defendants had
“violated” its earlier order and said that it would take a “preventative measure” to
prevent “further flouting” of its orders. That measure was the issuance of bench
warrants for the defendants’ arrest. The court also permitted the plaintiff to execute
against other property held by the defendants. On appeal, the defendants argued that
the district judge should have recused because his statements on the record
“demonstrate[d] prejudgment of the contempt charge.” The First Circuit rejected as
“frivolous” the defendants’ argument that the district judge was required to recuse
based upon his “express[ion] of preliminary views inside the court, based upon
knowledge acquired in court proceedings.” Id.
The Sixth Circuit’s decision in Bell v. Johnson, 404 F.3d 997 (6th Cir. 2005),
likewise provides helpful guidance. The plaintiff in Bell initially won a jury verdict
of $1,500.00 in compensatory damages and nothing in punitive damages. The
district judge thereafter granted the plaintiff’s motion for a new trial on damages. At
a later off-the-record status conference, the judge said that he “would try the instant
case as many times as necessary until the jury reached a verdict of at least
$9,000.00,” and the judge also told defense counsel that the judge had learned from
a law school dean that there was legal authority allowing the judge to award
attorneys fees in excess of an apparently-applicable statutory cap. The defendants

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moved to disqualify the district judge based upon his statements. The district judge
denied the motion, and the case proceeded to a re-trial at which the jury awarded a
total of $34,000 in damages. On appeal, the Sixth Circuit affirmed the denial of the
recusal motion and stressed that the judge’s statements concerning his views of the
case did not warrant recusal:
An opinion on the merits of the case, resulting from a
judge’s experience with the case in the course of his or her
official duties, is not sufficient to justify §455 recusal
unless it demonstrates a deep-seated favoritism or
antagonism that would make fair judgment impossible.
Such is manifestly not the case here, where the district
judge both had substantial experience with the case and
expressed an opinion clearly justified by the evidence
presented at trial.
Id. at 1006.
The Court’s statements here that so “troubl[ed]” Allure are much like those in
Goya Foods and Bell.

The statements expressed a preliminary opinion – an

“inclination” – that was based upon information contained in filings with the Court
and statements made by counsel on the record during proceedings in open court.
And the Court’s concerns about whether the Stipulated Dismissal Order fairly
reflects the parties’ agreement were certainly “justified by the evidence presented”
to the Court in the parties’ filings and on the record. Indeed, as noted above, Dr.
McCrary’s lawyer acknowledged the legitimacy of the Court’s concerns. Under
these circumstances, the Court’s statement of its inclination – especially when

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coupled with the Court’s assurance that it had not reached any final decision and that
it was giving Allure a “full opportunity” to present its arguments – is not a basis for
recusal.
D
Next, Allure argues that recusal is required because the Court “[1] conducted
[its] own independent research to find a legal vehicle under which [it] might be able
to vacate the stipulated order and [2] invited Plaintiff to file a motion under this
specific rule, with instructions on the depth of the motion needed….” (Recusal
Motion, ECF #45 at Pg. ID 682; emphasis added.) This argument mischaracterizes
the actions taken by the Court and fails to understand that those actions demonstrate
that the Court had not pre-judged whether to vacate the Stipulated Dismissal Order.
The Court did not attempt to “find” a procedural mechanism through which it
could vacate the Stipulated Dismissal Order. On the contrary, as described above,
as the Court was conducting research into Rule 60(b)(1) – the rule under which
Hewitt originally sought relief from the Stipulated Dismissal Order – the Court
found a case explaining that that rule does not apply to interlocutory orders. That
case further explained that Rule 54(b) governs whether a district court may modify
or vacate such orders (like the Stipulated Dismissal Order). Simply put, the Court
learned about the applicability of Rule 54(b) while trying to understand the scope of
Rule 60(b)(1), not as part of a concerted effort to find a way to rule for Hewitt. And

24

the fact that the Court conducted additional legal research in an effort to better
understand the issues raised in Hewitt’s motion under Rule 60(b)(1) is not evidence
of bias (or potential bias). On the contrary, it demonstrates the Court’s desire to
reach the correct result.
Moreover, the fact that the Court gave Hewitt an opportunity to file a motion
for relief under Rule 54(b) and told her that the motion had to be well-supported by
federal law confirms that the Court had not reached any firm conclusions as to
whether to vacate the Stipulated Dismissal Order. Indeed, if, as Allure claims, the
Court had already pre-judged the issue, the Court could have and would have
exercised its authority – under both its inherent powers and under Rule 54(b) – to
vacate sua sponte the interlocutory Stipulated Dismissal Order. See, e.g., Leelenau
Wine Cellars, Ltd. v. Black & Red, Inc., 118 F. App’x 942, 945-46 (6th Cir. 2004)
(affirming district court’s decision to vacate sua sponte an interlocutory order).3
Instead, the Court offered Hewitt a chance to seek relief from the Stipulated
Dismissal Order by filing a motion. That course of action ensured that the Court

3

See also I.H. v. County of Lehigh, 2007 WL 2781264, at *1 (E.D. Pa., Sept. 24,
2007) (“Although there is no pending motion to reconsider before me, a district court
may reconsider its own interlocutory orders sua sponte); Tim Molyneux Prod. v.
Platinum Masters Monster Circus, 2010 WL 4055419, at *7 n.3 (D. Nev., Oct. 5,
2010) (explaining that interlocutory orders are “subject to revision” and “can be
modified sua sponte or in response to a motion”); Toll Bros., Inc. v. Essex Ins. Co.,
2015 WL 1933699, at *6 (E.D. Pa., April 29, 2015) (“Nevertheless, a district court
has the authority to revise interlocutory orders sua sponte.”).
25

would receive full briefing on both sides of the issue before reaching any final
decision. And the Court’s desire to have a full adversarial presentation of the
questions presented under Rule 54(b) demonstrates that the Court had not resolved
in its own mind whether Hewitt was entitled to relief under the rule.
Finally, the Court’s direction to Hewitt’s counsel that he file a substantial brief
with persuasive federal authority likewise underscores that the Court was not
unfairly biased in Hewitt’s favor. Indeed, the point of that admonition to counsel
was that his client would not win unless her position was well-supported by federal
law. Simply put, telling a lawyer that he should demonstrate an entitlement to the
relief he seeks is not evidence of bias (or potential bias).
For all of the reasons explained above, recusal of the Court is neither required
nor appropriate in this action.

Therefore, the Recusal Motion (ECF #45) is

DENIED.
III
Having denied the Recusal Motion, the Court is now prepared to address the
remaining motions: Allure’s motion for summary judgment and Hewitt’s motion to
vacate the Stipulated Dismissal Order under Rule 54(b). Allure recently responded
to Hewitt’s Rule 54(b) motion. (See ECF #49.) Hewitt shall file a reply addressing

26

Allure’s arguments by not later than February 21, 2019. Upon the filing of Hewitt’s
reply, the Court will review and decide both pending motions.
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: February 7, 2019

I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on February 7, 2019, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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