Hammer v. Sam's East, Inc. et al

Filing 157

MEMORANDUM TO COUNSEL. Signed on 05/02/12 by District Judge Howard F. Sachs. (Duer, Tina)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
STEVEN E. HAMMER
individually and on behalf of all others
similarly situated,
Plaintiff,
v.
SAM’S EAST, INC.
d/b/a SAM’S CLUB;
and DOES 1 through 10, inclusive
Defendants.

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Case No. 08-0788-CV-W-HFS

MEMORANDUM TO COUNSEL
An unusual procedural situation has developed in this case. As mentioned at our conference
last week, I am now aware of a discovery controversy that has developed in collateral proceedings,
relating to a nonparty, GE Capital Retail Bank, that apparently had a financial arrangement with the
Sam’s Club defendants.
The docket sheet in a recently filed Miscellaneous proceeding, 12-mc-09006-GAF, reflects
that a motion to quash was filed by Bank in federal court in Utah, which has been transferred here
for disposition, and assigned to Judge Fenner. Normally the discovery dispute would be referred to
me, because of my familiarity with the underlying controversy. A complication is presented,
however, in that my son Adam is a partner in the law firm serving as local counsel for the Bank (the
Husch Blackwell firm) and I routinely recuse in cases where that firm is counsel.
If the proceeding assigned to Judge Fenner were transferred to me it seems probable that I
should recuse in the entire matter, which has been pending before me since 2008 and has on several
occasions required a substantial amount of judicial study and some material activity. If that can be
reasonably avoided, I am prepared to accept my “duty to sit where not disqualified ...” Laird v.

Tatum, 409 U.S. 824, 837 (1972). It would be helpful, I conclude, to avoid circumstances that would
require recusal. One way would seem to be to leave the Bank’s discovery issue with Judge Fenner.
In effect, I would be using a severance procedure to avoid creating a cause for recusal. This seems
rather novel.
Limited review of legal principles suggests this is somewhat similar to making sure that a
law clerk with a relationship with a particular firm is isolated from litigation involving that firm
while the judge continues to handle the litigation. See, e.g., Anderson v. Board of School Directors
of Milcreek Township School District, 2011 WL 5325782 (W.D.Pa.), page 10. Asking Judge Fenner
to handle the Bank’s issues is somewhat awkward, when my familiarity with the underlying case
might be helpful. My present view, however, is that this would be the lesser evil under the
circumstances.1
If the parties have views on the recusal issue they wish to present to me, by motion or
otherwise, they are invited to do so.
/s/ Howard F. Sachs
HOWARD F. SACHS
UNITED STATES DISTRICT JUDGE
May 2 , 2012
Kansas City, Missouri

1

A further anomaly is that recent appellate decisions may suggest that the willfulness
issue (assuming a law violation) can sometimes be ruled definitively on summary judgment
without discovery, or with limited discovery, given the initial test of “objective reasonableness”
that is applied, and the immateriality of “subjective bad faith” in that aspect of the analysis. Long
v. Tommy Hilfiger U.S.A., Inc., 671 F.3d 371, 377-378 (3rd Cir. 2012). See also, Safeco Ins. Co.
of America v. Burr, 551 U.S. 47, 70 n.20 (2007); Van Straaten v. Shell Oil Products Company
LLC, 2012 WL 1340111 (7th Cir.). My supposition, however, is that some background
information on factual issues not subject to judicial notice may be needed or useful here,
presumably by stipulation or by uncontroverted expert opinions, to permit a legal ruling on such
a motion.