McFarlane v. First UNUM Life Insurance Company

Filing 32

OPINION AND ORDER re: 29 LETTER MOTION for Conference re: Notice of Reassignment of Referral to Magistrate Judge, addressed to Magistrate Judge Katharine H. Parker from Jeffrey Delott dated January 17, 2017 filed by Cherylle Mc Farlane. In a letter dated January 17, 2017 (Docket No. 29), Plaintiff's counsel has requested that this action be reassigned to Chief Magistrate Judge Debra Freeman for general pre-trial purposes and settlement (see Docket No. 24) on the ground that the undersigned's "impartiality might reasonably be questioned" because the undersigned previously represented Defendant First Unum Life Insurance Company ("First Unum") and/or because Proskauer Rose LLP, t he law firm with which I was previously a member, has represented First Unum. Plaintiff's counsel concedes that he "is certainly not asserting that there is definitive evidence that [the undersigned's] honesty, integrity, impartialit y, temperament, or fitness to serve as a judge is impaired," but contends that he is obligated under Rule 1.1(c) of the New York State Rules of Professional Conduct to ask "whether a reasonable mind would find at least an appearance of impropriety." It is well-established that "[t]here is as much obligation upon a judge not to recuse [herself] when there is no occasion as there is for [her] to do so when there is." Rosen v. Sugarman, 357 F.2d 794, 7 97 (2d Cir. 1966) (internal quotations omitted). "In making its determination, a court must remember that where the standards governing disqualification have not been met, disqualification is not optional; rather, it is prohibited." In re Initial Pub. Offering Sec. Litig., 174 F. Supp. 2d 70, 75 (S.D.N.Y. 2001) (internal quotations omitted). No reasonable person fully informed of the facts could reasonably question this Court's impartiality in this matter. Plaintiff' s counsel has shown no personal bias or prejudice concerning a party, and no aspect of the undersigned's previous affiliation with Proskauer Rose LLP or representation of First Unum in a wholly unrelated matter sometime in the unspecified past would justify recusal. Thus, recusal under Section 455(a) is unwarranted as well. Accordingly, Plaintiff's application is DENIED. (As further set forth herein.) (Signed by Magistrate Judge Katharine H. Parker on 1/20/2017) (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

1/20/2017

CHERYLLE MCFARLANE,
Plaintiff,

OPINION AND ORDER
1:16-cv-07806-RA-KHP

– against –
FIRST UNUM LIFE INSURANCE COMPANY,
Defendant.

KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE
In a letter dated January 17, 2017 (Docket No. 29), Plaintiff’s counsel has requested that
this action be reassigned to Chief Magistrate Judge Debra Freeman for general pre-trial
purposes and settlement (see Docket No. 24) on the ground that the undersigned’s
“impartiality might reasonably be questioned” because the undersigned previously represented
Defendant First Unum Life Insurance Company (“First Unum”) and/or because Proskauer Rose
LLP, the law firm with which I was previously a member, has represented First Unum. Plaintiff’s
counsel concedes that he “is certainly not asserting that there is definitive evidence that [the
undersigned’s] honesty, integrity, impartiality, temperament, or fitness to serve as a judge is
impaired,” but contends that he is obligated under Rule 1.1(c) of the New York State Rules of
Professional Conduct to ask “whether a reasonable mind would find at least an appearance of
impropriety.”
It is unclear why Plaintiff’s counsel contends he is required to inquire about recusal
pursuant to Rule 1.1(c) of the New York State Rules of Professional Conduct. That rule provides
in relevant part, “lawyer[s] shall not intentionally: (1) fail to seek the objectives of the client

through reasonably available means permitted by law and these Rules; or (2) prejudice or
damage the client during the course of the representation except as permitted or required by
these Rules.” Rule 1.1(c) concerns a lawyer’s personal conduct vis-à-vis her client. Plaintiff’s
counsel cites no case law or ethics opinion in support of his interpretation of Rule 1.1(c).
In any event, this Court construes Plaintiff’s letter as a motion pursuant to Sections 144
and 455 of the Judicial Code. 28 U.S.C. §§ 144, 455. Section 144 provides in relevant part:
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 against him or in favor of any adverse party, such judge
shall proceed no further therein, but another judge shall be assigned to hear such
proceeding.
28 U.S.C. §§ 144. Plaintiff’s counsel has failed to comply with the strict procedural and
substantive requirements of Section 144. He has failed to submit an affidavit, signed personally
by the Plaintiff, accompanied by a certificate of counsel stating that the affidavit is filed in good
faith. He also has failed to articulate a factual basis for asserting that the undersigned has a
personal bias or prejudice for or against a party. See 13D CHARLES ALAN WRIGHT & ARTHUR R.
MILLER, FEDERAL PRACTICE AND PROCEDURE § 3542 (3d ed.); see also, e.g., Jackson v. Scotts
Co., No. 08-cv-1064 (LAK), 2009 WL 321010, at *7 (S.D.N.Y. Feb. 10, 2009), aff’d, 356 F. App’x
513 (2d Cir. 2009); United States v. Occhipinti, 851 F. Supp. 523, 525 (S.D.N.Y. 1993); United
States v. Johnpoll, 748 F. Supp. 86, 88 (S.D.N.Y. 1990), aff’d, 932 F.2d 956 (2d Cir. 1991). Thus,
to the extent he seeks recusal pursuant to Section 144, his motion is denied.
Section 455(a) provides that “[a]ny justice, judge, or magistrate judge of the United
States shall disqualify [herself] in any proceeding in which [her] impartiality might reasonably
be questioned.” Section 455(b) provides in relevant part: “(b) [S]he shall also disqualify

[her]self in the following circumstances: . . . (2) Where in private practice [s]he served as lawyer
in the matter in controversy, or a lawyer with whom he previously practiced law served during
such association as a lawyer concerning the matter . . . .” The Second Circuit has explicitly
recognized that the “prior representation of a party by a judge or [her] firm with regard to a
matter unrelated to litigation before [her] does not automatically require recusal.” Nat’l Auto
Brokers Cor. v. Gen. Motors Corp., 572 F.2d 953, 958 (2d Cir. 1978). Only where a judge’s
impartiality might reasonably be questioned would recusal be required, and mere prior
representation of a party in a totally unrelated matter does not mandate recusal under the rule
or necessarily create an appearance of impartiality. See Liteky v. United States, 510 U.S. 540
(1994); Jackson, 2009 WL 321010 at *8.
Plaintiff’s counsel cited to two published opinions from 2010, more than six years ago,
where he contends the undersigned appeared to have represented First Unum. Plaintiff’s
counsel is incorrect. Neither the undersigned nor Proskauer Rose LLP represented First Unum
in either case. Indeed, First Unum was not involved as a party in one of the cases cited by
Plaintiff’s counsel. Furthermore, Proskauer Rose LLP does not represent First Unum in any
matter currently pending within the Southern District of New York that existed when the
undersigned was affiliated with Proskauer Rose LLP. Regardless, Section 455(b) requires recusal
only in situations when the judge or one of his former colleagues served as a lawyer in or
concerning the matter before this Court. Neither the undersigned nor Proskauer Rose LLP
represented First Unum in connection with the matter before this Court. See Faulkner v. Nat’l
Geographic Soc., 296 F. Supp. 2d 488, 491 (S.D.N.Y. 2003) (denying motion for recusal under
Section 455 and recognizing that prior representation of a party affiliate in a trademark

litigation did not concern the same matter at issue in the copyright case before the court); see
also Schurz Commc’ns, Inc. v. FCC, 982 F.2d 1057, 1059-61 (7th Cir. 1992); Weisshaus v. New
York, No. 08-cv-4053 (DLC), 2009 WL 4823932, at *5 (S.D.N.Y. 2009); Lipin v. Bergquist, 574 F.
Supp. 2d 423, 427 (S.D.N.Y. 2008); Lipin v. Hunt, 573 F. Supp. 2d 830, 834 (S.D.N.Y. 2008). Thus,
even if the undersigned represented First Unum in a matter while in private practice, and even
if Proskauer Rose LLP represented or represents First Unum in some capacity, 1 no reasonable or
objective person could deem such past or current representation to concern the instant matter
before the Court. Therefore, recusal pursuant to Section 455(b) is unwarranted.
It is well-established that “[t]here is as much obligation upon a judge not to recuse
[herself] when there is no occasion as there is for [her] to do so when there is.” Rosen v.
Sugarman, 357 F.2d 794, 797 (2d Cir. 1966) (internal quotations omitted). “In making its
determination, a court must remember that where the standards governing disqualification
have not been met, disqualification is not optional; rather, it is prohibited.” In re Initial Pub.
Offering Sec. Litig., 174 F. Supp. 2d 70, 75 (S.D.N.Y. 2001) (internal quotations omitted). No
reasonable person fully informed of the facts could reasonably question this Court’s impartiality
in this matter. Plaintiff’s counsel has shown no personal bias or prejudice concerning a party,
and no aspect of the undersigned’s previous affiliation with Proskauer Rose LLP or
representation of First Unum in a wholly unrelated matter sometime in the unspecified past

Proskauer Rose LLP is an international law firm with more than 700 lawyers active in multiple offices
across the globe. The undersigned does not have knowledge of the myriad matters and clients of
Proskauer Rose LLP and no specific recollection of any matters or facts regarding First Unum from my
time at Proskauer Rose LLP.
1

would justify recusal. Thus, recusal under Section 455(a) is unwarranted as well. Accordingly,
Plaintiff’s application is DENIED.

SO ORDERED.

Date: January 20, 2017
New York, New York

___________________________
KATHARINE H. PARKER
United States Magistrate Judge