Gerber v. Riordan et al
Filing
100
Memorandum Opinion and Order the Court denies pltf's motion to recuse and denies pltf's motio for reconsideration. 98 Magistrate Judge Vernelis K. Armstrong on 1/31/12. (B,CJ)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Scott D. Gerber,
vs.
James C. Riordan, et al.,
Defendants.
I.
Case No. 3:06-CV-1525
:
Magistrate Judge Vernelis K. Armstrong
:
Plaintiff,
:
MEMORANDUM OPINION AND ORDER
:
:
Brief Background and Jurisdiction
This Court has jurisdiction over this matter pursuant to 28 U.S.C §§ 1291 and 1332.
On June 21, 2006 Plaintiff filed his Complaint alleging breach of contract, fraud and
other related claims arising out of an allegedly failed book publishing deal. (Docket No. 1). On
March 3, 2009, in accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, District Judge James
G. Carr issued an order of reference, pursuant to the parties’ consent, transferring this case to the
undersigned to conduct all proceedings and enter an order of final judgment. (Docket No. 60).
On May 28, 2009, the instant case was dismissed by order of this Court for lack of
personal jurisdiction. (Docket Nos. 73 and 74).
On June 1, 2009, Plaintiff’s counsel French filed a Motion to Reopen Case for Limited
1
Purpose of Allowing Counsel to Plaintiff to Withdraw. (Docket No. 75). On June 8, 2009 this
Court granted the Motion to Reopen and Ordered that the case be reopened for the limited
purpose of allowing Bruce French to withdraw as counsel for Plaintiff. (Docket No. 76).
On June 8, 2009, Plaintiff filed, pro se, an Opposition to the withdrawal of attorney
French, (accompanied by a filing by attorney French of Plaintiff’s Counsel’s Filing of Plaintiff’s
Opposition to Counsel’s Motion to Withdraw as an Accommodation to Plaintiff, notwithstanding
attorney French’s pending Motion to Withdraw), (Docket No. 77), and an Opposition to the
Motion to Reopen for Limited Purpose of Allowing Counsel to Plaintiff to Withdraw as Counsel.
(Docket No. 78). On June 22, 2009, Plaintiff, pro se, filed a Motion for Relief From Judgment,
pursuant to Fed.R.Civ.P. (60)(b)(6), seeking relief from this Court’s order dismissing ths case for
lack of personal jurisdiction over Defendants. (Docket No. 80). Also on June 22, 2009 attorney
French filed a Reply to Plaintiff’s Opposition to attorney French’s Motion to Withdraw.
(Docket No. 82).
On June 24, 2009, Attorney Wakefield filed a Notice of Appearance as counsel for
Plaintiff. (Docket No. 84).
On June 24, 2009, Plaintiff, through attorney Wakefield, filed a Notice of Appeal to the
Sixth Circuit Court of Appeals, appealing this Court’s Order of June 8, 2009 dismissing
Plaintiffs case for lack of personal jurisdiction over Defendants. (Docket No. 85).
On July 29, 2009, the Sixth Circuit issued an Appeal Order granting Plaintiff’s attorney
Pepper’s Motion to Withdraw as Counsel for Appellant. (Docket No. 88).
On March 12, 2010, this Court issued a Memorandum Decision and Order denying
Plaintiff’s June 22, 2009 Rule 60(b)(6) Motion for relief from Judgment. (Docket No. 89).
On August 18, 2011, the Sixth Circuit issued an Order reversing this Court’s dismissal
2
Order of May 28, 2009, finding that this Court does have personal jurisdiction over Defendants,
and ordering that the case be remanded to this Court for further proceedings. (Docket No. 90).
On October 11, 2011, attorneys Pepper and Taft Stettinius & Hollister, LLP, (TSH), filed
a Motion to Withdraw as attorney for Plaintiff. (Docket No. 93). On October 19, 2011 and
October 20 Plaintiff, pro se, filed two virtually identical documents, an Opposition to Motion of
attorneys Pepper and Taft, et.al.,’s Motion to Withdraw along with a Request for Evidentiary
Hearing.(Docket Nos. 94 and 95, respectively). (Plaintiff’s October 20, 2011, filing (Docket No.
95) differs from Plaintiff’s October 19, 2011 filing (Docket No. 94) in that the October 20 filing
includes an attached Affidavit of attorney Wakefield.) On October 25, 2011, attorney Pepper
and TSH., filed a Reply to Plaintiffs Opposition. (Docket No. 96).
On November 28, 2011 this Court issued a Memorandum Opinion and Order granting
attorneys Pepper and TSH’s Motion to Withdraw. (Docket No. 97).
On December 14, 2011 Plaintiff, pro se, filed a Motion for Reconsideration of this
Court’s Order, granting attorney Pepper’s Motion to Withdraw, and a Motion requesting that the
undersigned recuse herself from this case. (Docket No. 98).
II.
Issues Before the Court
This cause is presently before this Court on Plaintiff’s Motion for Reconsideration of
this Court’s Attorney Withdrawal Decision, (2) Motion to Recuse Magistrate Judge Armstrong,
and (3) Supporting Memorandum of Law. (Docket No. 98).
This Court shall address and resolve Plaintiff’s second motion, i.e., his Motion to Recuse,
before addressing Plaintiff’s Motion for Reconsideration. The reasons for this are, of course,
obvious, since, if this Court were to grant Plaintiff’s Motion to Recuse, it would relinquish it’s
authority to address any further matters that may arise in this litigation, including Plaintiff’s
3
Motion for Reconsideration.1
Defendants have not filed an opposition to Plaintiffs’ Motion to Recuse.
III.
Motion to Recuse
Plaintiff argues that a judicial officer of the United States shall recuse him or herself from
a proceeding where his or her “impartiality might reasonably be questioned.” 28 U.S.C. §
455(a). Specifically, Plaintiff asserts that recusal is required where, inter alia, the judicial officer
“has a personal bias or prejudice concerning a party . . .” 28 U.S.C. § 455(b).
Plaintiff further asserts a related, but analytically distinguishable consideration, that the
court shall make an independent assessment of the effect that maintaining its continued
jurisdiction over a matter might have on the recusal movant’s emotional well being, sense of
personal security and belief that he is being treated in a fair and impartial manner by the judicial
officer overseeing his case. Accordingly, Plaintiff argues that courts are called upon to assess
the effect that a determination of a motion for recusal might have on the moving party’s faith in
the justice system and in doing so, incorporate that factor into the overall calculus by which it
decides the motion to recuse. See, e.g., Haines v Liggett Group, 814 F. Supp 414, 428 (D.N.J.
1993) and In re Tutu Wells Contamination Litigation, 164 F.R.D. 41, 46 (D.V.I. 1995).
Plaintiff cites eight factors in support of his Motion to Reconsider, the sum and substance
of which is that the undersigned is more concerned with giving the attorneys what they want allowing them to withdraw from this case so that they may generate fees with other
1
Arguably it is logically and procedurally feasible that this Court could address and
resolve Plaintiff’s Motion for Reconsideration prior to addressing his Motion to Recuse. While
this case remained within the jurisdiction of the undersigned the Court could, for example, deny
Plaintiff’s Motion for Reconsideration and then, subsequently, grant the Motion to Recuse.
However, it is the opinion of this Court that the more logical and appropriate procedural itinerary
is to resolve Plaintiff’s Motion to Recuse first.
4
representation - than with treating Plaintiff fairly.
IV.
Recusal Under 28 U.S.C. § 455
28 U.S.C. § 455 reads in pertinent part:
§ 455. Disqualification of justice, judge, or magistrate [magistrate judge]
(a) Any justice, judge, or magistrate [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, or
personal knowledge of disputed evidentiary facts concerning the
proceeding;
Section 455 is designed "'to promote confidence in the judiciary by avoiding even the
appearance of impropriety whenever possible.'" Union Planters Bank v. L&J Dev. Co., Inc., 115
F.3d 378, 383 (6th Cir. 1997) (quoting Liljeberg v. Health Servs. Acquisition Corp., 486 U.S.
847, 865, 108 S. Ct. 2194, 100 L. Ed. 2d 855 (1988)).
28 U.S.C. § 455 requires federal judicial officers to disqualify themselves "in any
proceeding in which [their] impartiality might reasonably be questioned." The Supreme Court
has held that the standard is objective, and what matters "is not the reality of bias or prejudice
but its appearance." Liteky v. United States, 510 U.S. 540, 548, 114 S. Ct. 1147, 127 L. Ed. 2d
474 (1994). "Quite simply and quite universally, recusal [is] required whenever impartiality
might reasonably be questioned." Id. (quotations omitted).
The ultimate concern for any court faced with a § 455 challenge is whether "a reasonable,
objective person, knowing all of the circumstances, would have questioned the judge's
impartiality." United States v. Hartsel, 199 F.3d 812, 820 (6th Cir. 1999). The standard for
evaluating claims that the judicial officer overseeing a matter is impartial is an objective one,
5
and, because of that, the presiding judicial officer who is subjected to a § 455 challenge need not
recuse himself based on his/her subjective view of the party seeking recusal. United States v.
Sammons, 918 F.2d 592, 599 (6th Cir. 1990). On the other hand, if there is a reasonably
objective basis to support a movant’s claims of impartiality or where a movant’s allegations
present a close case for same, "'the judge must recuse himself.'" Union Planters Bank, 115 F.3d
at 383 (quoting United States v. Dandy, 998 F.2d 1344, 1349 (6th Cir. 1993)). A movant must
present some reasonably objective evidence to support an accusation of judicial impartiality to
prevail on a § 455 motion.
The test for whether recusal is warranted or required under § 455 is what a "reasonable
person knowing all the relevant facts would think about the impartiality of the judge." Roberts
v. Bailar, 625 F.2d 125, 129 (6th Cir. 1980). See Hartsel, supra.
The underlying policy informing the federal recusal statute is set forth below The
legislative history of the recusal statute reinforces our view of the mandatory duty
imposed on the conflicted judge. The issue is one of law which does not depend on the
discretion or the conscience of the individual judge or the collegial feelings of the Court.
As this Court explained in Roberts, "To promote public confidence in the impartiality of
the federal judicial system, the Congress in 1974 shifted the focus of § 455" from a
subjective to an objective standard. 625 F.2d at 129. The congressional committee report
accompanying the 1974 change in the recusal statute stated that the new statute "sets up
an objective standard, rather than the subjective standard set forth in the existing statute
through the use of the phrase 'in his opinion.'" Judiciary -- Disqualification of Judges,
H.R. Rep. No. 1453, 93d Cong., 2d Sess. (1974), reprinted in 1974 U.S. Code Cong. &
Admin. News 6351, 6354-55. As part of its effort to promote public confidence in the
judiciary Congress enacted the current statute with the express purpose of taking the
recusal question out of the individual discretion of the judge, . . .
Leaman v. Ohio Dep't of Mental Retardation & Developmental Disabilities, 825 F.2d 946, 967
(6ht Cir. 1987). (dissenting opinion by Circuit Judge Merritt, arguing that member of en banc
panel deciding case should have recuse himself earlier due to his involvement as a drafter and
co-sponsor of legislation that had been under attack in case before the panel).
6
Congress amended § 455 in 1974. The earlier version of the statute required that the
judicial officer recuse only where he or she had a "substantial interest" in a case. Under the
current version of § 455, judges shall recused themselves when their impartiality "might
reasonably be questioned." 28 U.S.C. § 455(a) (emphasis added); Liteky, 510 U.S. at 547.
.
All this being noted, as the late Chief Justice Rehnquist stated, "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, 93 S. Ct. 7, 34 L. Ed. 2d 50 (1972) (emphasis omitted).
Although Laird was decided in 1972, at least two years before the changes to the recusal statute
were enacted, the sentiment of judicial responsibility described by Justice Rehnquist is worth
noting.
To justify recusal under 28 U.S.C. § 455, the judge's prejudice or bias must be shown to
be personal or extrajudicial. See United States v. Hartsel, supra,199 F.3d at 820. "'Personal' bias
is prejudice that emanates from some source other than participation in the proceedings or prior
contact with related cases." Youn v. Track, Inc., 324 F.3d 409, 423 (6th Cir. 2003). “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)
Under 28 U.S.C. § 455(a), disqualifications "must be predicated upon extrajudicial
conduct rather than on judicial conduct; and upon a personal bias as distinguished from [a]
judicial one, arising out of the judge's background and association and not from the judge's view
of the law." Green v. Nevers, 111 F.3d 1295, 1303-04 (6th Cir. 1997)
The Sixth Circuit has applied the § 455 analysis in a various contexts
In Jamieson, supra, a criminal defendant convicted of conspiracy to commit mail fraud
and money laundering appealed, inter alia, the trial court’s denial of his § 455 motion. The court
7
of appeals held that the trial court’s denial of appellant’s motion to recuse was proper where the
appellant had failed to allege that the district judge possessed knowledge based on extrajudicial
activities or exposure that could have conceivably supported appellant’s assertion that the district
court judge manifested a personal bias or prejudice that negated or undermined his impartiality
during the trial court proceedings.
In Reed v. Rhodes, 179 F.3d 453, 468 (6th Cir. 1999), the court found that a judge's role
in overseeing a consent decree of a school district was part of his judicial responsibilities and is
not evidence of "personal" or "extrajudicial" bias despite parties in the case at bar having
involvement with the school system to which the consent decree applied. The court of appeals
also found that ex parte communications between the judge and various parties in the case at bar
were not determinative of bias or prejudice because such communications were ministerial in
nature as to the consent decree and did not involve matters that were at issue between the parties
to the litigation.
In Schilling v. Heavrin (In re Triple S Rests., Inc.), 422 F.3d 405 (6th Cir. 2005), the
plaintiff, an attorney, asserted three bases in support of a motion to recuse: (1) he had had prior
dealings with the judge when the judge had been an examiner before being appointed to the
bench wherein plaintiff had opposed the (judge’s) examiner’s fee requests, ultimately leading to
litigation wherein the plaintiff had referred to the examiner (judge) as incompetent, incomplete,
and worthless; (2) during the proceedings of an earlier bankruptcy case over which the judge
had presided, the judge referred to certain business dealings plaintiff had engaged in as
deplorable; and (3) the judge had placed the burden of proof on plaintiff to establish that he had
the right to retain fee money paid to him by a trust rather than putting the burden on the trustee to
prove the transfer should be avoided. The Sixth Circuit held that the lower court’s decision
8
denying plaintiff’s recusal motion should be upheld because none of the examples plaintiff had
cited showed bias, prejudice or hostility sufficient to establish that the judge was unable to
decide the case on its merits, stating “conclusions, rumors, beliefs, and opinions are not
sufficient to form a basis for disqualification” Schilling, supra, 422 F.3d 405, 418, citing,
General Aviation v. Cessna Aircraft Co., 915 F.2d 1038, 1043 (6th Cir.1990).
See, also, Bell v. Johnson, 404 F.3d 997, 1005, fn. 8(6th Cir. 2005).
Even accepting Blatter's account of the off-the-record status conference, it is apparent
that the district judge did not abuse his discretion in declining to recuse himself pursuant
to § 455. . . . First, a statement by the district judge that he would continue to retry the
case until Bell received a total verdict of at least $ 9,000 was not improper as long as the
district judge believed that a verdict of less than $ 9,000 would be against the clear
weight of the evidence, requiring him to grant a motion for a new trial pursuant to Rule
59(a). . . As the jury had already made a liability determination, the statement could not
indicate that the judge was biased (or create an appearance of bias) in favor of one party
winning the liability phase -- the jury had already determined that Bell had prevailed in
that phase. In fact, given the post-verdict certainty of Blatter's liability, the time already
consumed in litigation, the importance of the constitutional rights at stake, and (now,
with the benefit of hindsight) the $ 34,000 verdict actually reached by the jury in Trial
No. 3, $ 9,000 seems to be a minimum damages figure relatively favorable to Blatter.
Accordingly, such a comment by the district judge would show neither bias nor an
appearance of partiality.
Also in Bell v. Johnson, supra. the, judge’s decision to discuss a piece of paper found in
the jury room did not demonstrate bias, prejudice, or the appearance of partiality. Rather, it was
merely an effort on the part of the judge to offer guidance on the possible mutual
advantageousness of settlement, especially considering that there was no allegation that the
judge disclosed the information to only one party.
In Youn, supra plaintiffs claimed that the judge had already decided not to believe them
where the judge had written in one order that he would “not entertain any further tales that [the
financial statements] do not exist." and where he described plaintiff’s affidavits as
"unbelievable" and their discovery conduct "deplorable." . Youn, supra 324 F.3d at 422
9
Plaintiff’s also accused the judge of being racist against Koreans. No bias or prejudice found
sufficient to support a § 455 motion
See, also, Ullmo v. Gilmour Acad., 273 F.3d 671; 2001 U.S. App. LEXIS 26099; 2001
FED App. 0416P (6th Cir. 2001.), (court’s pretrial rulings and plaintiff’s counsel’s feeling that
the judge had animus toward him do not support motion to recuse).
As noted, Plaintiff herein refers to eight separate factors, infra, in support of his Motion
to Recuse. Consistent with the standard for evaluating judicial disqualification of recusal,
enunciated above, if one, several in combination or all of the factors meet the threshold
requirement of indicating objective bias or prejudice, then the undersigned would be compelled
to recuse herself from this case. Otherwise, in the words of Justice Rehnquist, this Court would
have the duty to “sit where not disqualified.”
The question currently before this Court is fairly simple: would a reasonable person find
that the factors listed by Plaintiff embody, implicate or reveal a bias or prejudice, arising from
some personal or extraneous consideration, that is sufficiently onerous that this Court would be
unable to address Plaintiff’s case with impartiality.2
2
The factors listed by Plaintiff are assertions of putative fact and, as such, they can
either be viewed with an eye toward determining whether each such assertion sets forth a true,
half-true or hardly true representation of the events and attitudes described therein or they can be
accepted, for the sake of argument, at face value and, thus, be considered as true and accurate
representations of the events and attitudes they purport to describe. It is the latter orientation
toward Plaintiff’s assertions that places them a light most favorable to the end sought by
Plaintiff’s Motion.
Accordingly, for the purpose of addressing Plaintiff’s Motion to Recuse in a light that is
most favorable to Plaintiff, this Court shall assume, ex hypothesi, that such averments, claims,
statements or insinuations articulated by Plaintiff in the eight factors are true as stated by
Plaintiff. Therefore, the Court must ask, does any one of the fact claims asserted by Plaintiff
reveal an animus of the Court that a reasonable person would see as rendering the Court
incapable of being impartial toward Plaintiff.
10
In this regard it is worth noting that none of the decisions the undersigned has made in
this case have been affected or influenced by a subjectively experienced, pernicious animus, bias
or prejudice toward Plaintiff, as Plaintiff has suggested in his instant Motion. Indeed, no
subjective considerations have influenced the undersigned’s handling of any of the matters that
have come before her other than the intent to apply fairly and equitably the facts as she has
understood them to the laws as she has determined them to be. That the undersigned and
Plaintiff may differ in opinion as to the significance and meaning of a particular set of facts or
the interpretation of some applicable law is understandable and an inevitable outcome of the
dispute resolution process that is one of the primary responsibilities of this Court. Such
differences of opinion do not, however, emanate from any subjective disinclination toward
Plaintiff on the part of the undersigned.3
3
In general, it is the nature of the litigation process that, parties present their claims and
defenses with divergent narratives of events and opposing legal arguments. Inevitably, as is the
role of the Court, decisions are made that emphasize one narrative over another or one legal
analysis over another, and these decisions, unavoidably, lead to the disappointment of at least
one and, quite possibly, all parties involved. Only where no decision is made can no party be
disappointed. Differences in opinion are neither definitionally nor functionally equivalent to
personal enmity or malignant animus, but only a necessary, collateral consequence of the
functioning of the legal process.
All this being said, however, the undersigned can attest that she has never viewed
Plaintiff as anything more, or less, than simply a litigant with a case, entailing all the
responsibilities and obligations inherent therein. Yet as discussed, above, it is not the personal,
subjective motivations of the undersigned that are to guide the Court’s decision on the matter’s
raised in the instant Motion but, rather, whether a reasonable, objective third party would view
the factors identified by Plaintiff as embodying bias or prejudice that, in turn, reveal an inability
to maintain impartiality toward Plaintiff in the current case.
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V.
Factors that Plaintiff Says Require Recusal
1. Attorney French was purportedly allowed to withdraw before the time for
Plaintiff to object had expired.
On May 28, 2009, this Court ordered that this case be dismissed. (Docket Nos. 73 and
74). At that point this Court relinquished authority to rule on matters or disputes in the case.
On June 1, 2009, Plaintiff’s counsel French filed a motion with one primary objective,
that the Court reopen the case so as to allow attorney French to withdraw from his representation
of Plaintiff. (Docket No. 75). This Court construed Plaintiff’s counsel’s motion as two separate
motions consolidated in a single filing: one, a motion to reopen the case for a limited purpose;
and two, a motion to allow attorney French to withdraw from his representation of Plaintiff.
On June 8, 2009, this Court granted the Motion to Reopen and Ordered that the case be
reopened for the limited purpose and allowed attorney French to withdraw as counsel for
Plaintiff. (Docket No. 76). As stated in the Order, “The Court finds that the movant gave to all
appropriate parties notice of his intended action.”
Also on June 8, 2009, Plaintiff filed his Opposition to Withdrawal of attorney French.
(Docket No. 77). Interestingly, Plaintiff’s Opposition was filed by attorney French, on
Plaintiff’s behalf because Plaintiff was situated in the Commonwealth of Virginia at the time and
was “not licenced before this Court.” See, Plaintiff’s Counsel’s Filing of Plaintiff’s Opposition
to Counsel’s Motion to Withdraw as an Accommodation to Plaintiff. (Docket No. 77). As set
forth in the Accommodation, “From a review of the website of the United States Postal Service,
it appears that the motion to withdraw was received by Scott D. Gerber on June 5, 2009. The
attached pleading [i.e., Plaintiff’s pro se Opposition to attorney French’s Motion to Withdraw]
was received by French on June 7, 2009.” (Docket No. 77)
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Additionally, On June 8, 2009, Plaintiff filed, pro se, an Opposition to the Motion to
Reopen for Limited Purpose of Allowing Counsel to Plaintiff to Withdraw as Counsel. (Docket
No. 78).
Rule 7.1(d) of the Local Civil Rules for the United States District Court, Northern
District of Ohio provides, as to memoranda in opposition that, “[u]nless otherwise ordered by the
Judicial Officer, each party opposing a motion must serve and file a memorandum in opposition .
. . within fourteen (14) days after service of any non-dispositive motion.”
Local Rule 83.9 provides for withdrawal of counsel but does not contemplate in its
language opposition by the party to the attorney’s notice to withdraw. Rule 83.9 does not
designate a time frame for response or challenge by the party. In fact, the Rule refers to
withdrawing counsel giving notice to the client and parties and obtaining “leave of court.” See
Rule 83.9 Local Civil Rules for the United States District Court, Northern District of Ohio.
(emphasis added).
Rule 83.9 refers to the attorney’s withdrawal request as a “notice.” As a petition
presented to the court it is reasonable to construe such a notice as a not requiring a response. If
construed otherwise, however, under the local rules, a party would have, not including weekends
and holidays, fourteen days after service to challenge or otherwise respond to an attorney’s
notice/motion of withdrawal.
So construed, the Court’s June 8, 2009 Order (which reopened the case for a limited
purpose and granted attorney French’s Motion to Withdraw) was, admittedly, premature, as it
was entered before the response time had expired. The question, however, is not whether the
Court issued its decision prematurely and in a way that blunted Plaintiff’s opportunity to be
heard regarding the concerns he may have had about the withdrawal of his attorney, but, rather,
13
whether such a sequence of events would be viewed by a reasonable person as indicating bias or
prejudice against Plaintiff by the Court.
These events suggest only that the Court ruled on attorney French’s Motion to Withdraw
before giving Plaintiff an opportunity to challenge his former attorney’s effort to terminate
representation.
Review of these events, especially in comparison to the several § 455 cases cited above,
makes it clear to this Court that a reasonable person would not interpret the Court’s actions as
evincing a bias or prejudice sufficiently onerous to support a finding that the undersigned was or
is unable to address the issues of this case with appropriate impartiality. Accordingly, the Court
does not find that Plaintiff’s first factor constitutes an appropriate basis for recusal.
2. The undersigned allegedly did not comply with a commitment, purportedly made
during a telephone conference, to rule on Plaintiff’s supposedly timely filed opposition to
attorney French’s motion to withdraw.
The Court views the substance of the assertion set forth in Plaintiff’s second factor as
being in pari materia with the matters raised in Plaintiff’s first factor and, therefore, finds that
Plaintiff’s second factor also does not constitute an appropriate basis for recusal.
3. The undersigned supposedly ruled on an incorrect version of Plaintiff’s Complaint,
allegedly disregarding Defendants’ Ohio contacts and asserting that Plaintiff had only
moved to Ohio from Virginia in 2005, and allegedly ignored Plaintiff’s affidavit that he
had lived and worked in Ada, Ohio since 2001, and failed to hold an evidentiary hearing
on the motion to dismiss.
Plaintiff’s third factor references matters that are pertinent to this Court’s performance of
its appropriately designated judicial duties.
Whether and how this or any court addresses matters set forth in a pleading or motion as
well as whether and how a court assesses the value and significance of various facts and how
they are to be interpreted within the context of such applicable law are all functions that fall well
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within in the purview of a court’s legitimate judicial role, i.e. to review and evaluate facts or
alleged facts as articulated by parties and interpret such facts in accordance with applicable law
and precedent. Such conduct and review on the part of the Court, even if erroneous, is neither
bias nor prejudice nor evidence of the absence of impartiality that a reasonable person would
view as warranting recusal. Accordingly, this Court finds that Plaintiff’s third factor does not
constitute an appropriate basis for recusal.
The performance of a court’s legal duties, even where technical error may have occurred
to the detriment of a party, is not evidence of bias or prejudice or a basis for concluding that a
court could not be impartial in its handling of a case. See Reed v. Rhodes, supra, 179 F.3d at
468.
The remaining bases of Plaintiff’s Motion to Recuse are:
4. The undersigned supposedly failed to rule in a timely manner on Plaintiff’s motion for
relief from judgment under Fed.R.Civ.Pro. 60(B)(6).
5. The Sixth Circuit Court of Appeals reversed the undersigned on this matter.
6. The undersigned allegedly instructed chamber’s staff to contact Plaintiff directly
while Plaintiff was supposedly represented by counsel.
7. The undersigned granted attorney Pepper’s motion to withdraw in the absence of an
evidentiary hearing, despite Plaintiff’s having filed an opposition to said motion, which
opposition contained an affidavit, signed by attorney Wakefield, that purportedly
challenged certain facts ostensibly relevant to attorney Pepper’s motion to withdraw.
8. The undersigned purportedly erroneously asserted that attorney Pepper was not
Plaintiff’s attorney of record in the Sixth Circuit.
These factors, like the first three factor’s discussed above, equally fail to adduce events
or circumstances that rise to the level of bias or prejudice. As with the first three of Plaintiff’s
eight factors, factors 4 though 8 only refer to conduct or circumstances that fall well within the
ambit of the undersigned’s role as a judicial officer and neither describe nor implicate views,
15
statements or conduct that a reasonable person could conceivably view as embodying bias or
prejudice of sufficient intensity to support the conclusion that the undersigned lacks the capacity
to address, with impartiality, all matters that come before her in this case.
Concerning Plaintiff’s claim that an adverse ruling on his Motion to Recuse would cause
him to lose faith in the judicial system, this Court turns to, and takes judicial notice of Plaintiff’s
biographical page at the Ohio Northern University website, see
http://www.law.onu.edu/faculty_staff/scottgerber/index.html.
Cursory review of Plaintiff’s biographical information on the ONU website reveals a
person with a substantial and sophisticated understanding of the history, philosophy and practical
functioning of the American judicial system. Plaintiff’s claim that an adverse ruling on the
instant Motion could trigger a crisis of faith in the judicial process does not appear well founded.
Plaintiff is an attorney. He worked as a law clerk for a federal district court judge and practiced
law at a Boston based law firm. Currently he is a senior research scholar in law and politics at
ONU. He is the author of numerous publications on the law and politics: books, articles, book
reviews, op-ed pieces, encyclopedia articles and other writings. Such a background and
experience would hardly suggest a person so unfamiliar with the judicial system that an adverse
ruling would disrupt his faith in the court system. On the contrary, Plaintiffs is sufficiently
knowledgeable about both the theory and functioning of the law that whatever faith he had when
filing this litigation is unlikely to be affected one way or the other by this Court’s ruling on the
Motion before it.
Accordingly, none of the factors raised by Plaintiff either individually or in any
combination satisfy the threshold requirements of the recusal statute. Therefore, Plaintiff’s
Motion to Recuse is DENIED.
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VI.
Motion for Reconsideration
Plaintiff’s Motion for Reconsideration, (Docket No. 98), lists eleven reasons in support
of Plaintiff’s effort to have this Court reverse it’s Order of November 11, 2011, (Docket No. 97),
which granted attorneys Pepper and TSH’s Motion to Withdraw (Docket No. 93).
The Federal Rules of Civil Procedure do not explicitly provide for motions for
reconsideration of interlocutory or nondispositive orders. However, district courts possess the
authority to hear such motions. Such authority is grounded “both in common law and in Rule
54(b) of the Federal Rules of Civil Procedure.” Bonar v. Romano, 2010 U.S. Dist. LEXIS
34165, *2 (S.D. Ohio, W.D. April 7, 2010). See also Rodriguez v. Tenn. Laborers Health &
Welfare Fund, 89 Fed. Appx. 949, 952 (6th Cir. 2004). (“District courts possess the authority
and discretion to reconsider and modify interlocutory judgments any time before final
judgment.”) See also Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12,
103 S. Ct. 927, 74 L. Ed. 2d 765, 778 (1983) ("[E]very order short of a final decree is subject to
reopening at the discretion of the district judge” citing at footnote 14,Fed. Rule Civ. Proc. 54(b)
and 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4478, pp. 788-792
(1981), in support); Mallory v. Eyrich, 922 F.2d 1273, 1282 (6th Cir. 1991) ("District courts
have inherent power to reconsider interlocutory orders and reopen any part of a case before entry
of a final judgment.")..4
4
Mallory, supra, refers to Marconi Wireless Telegraph Co. v. United States, 320 U.S. 1,
47-48, 87 L. Ed. 1731, 63 S. Ct. 1393 (1943) andSimmons Co. v. Grier Brothers Co., 258 U.S.
82, 88, 66 L. Ed. 475, 42 S. Ct. 196 (1922) (A district court may modify, or even rescind, such
interlocutory orders.) in support of the proposition that district courts have the authority to
review and reconsider interlocutory orders at any time prior to the entry of final judgement.
Marconi, which was decided in 1943, does not cite to the then recently enacted Federal Rules of
Civil Procedure in support of this proposition that. Thus Marconi and Simmons Co would both
appear to stand for the proposition that the inherent power of trial court’s to reconsider
17
“Traditionally, courts will find justification for reconsidering interlocutory orders when
there is (1) an intervening change of controlling law; (2) new evidence; or, (3) a need to correct a
clear error or prevent manifest injustice.” Bonar v. Romano, supra, 2010 U.S. Dist. LEXIS
34165, *2. See also Rodriguez, at 959. (citing Reich v. Hall Holding Co., 990 F. Supp. 955, 965
(N.D. Ohio 1998)). However, a motion for reconsideration "should not be used to re-litigate
issues previously considered." American Marietta Corp. v. Essroc Cement Corp., 59 Fed. Appx.
668, 671 (6th Cir. Feb. 19, 2003).
While not binding on the instant Court, guidance on the manner in which this Court is to
consider the issues raised in Plaintiff’s Motion may be found in a case decided last year by the
United States District Court for the Eastern District of Michigan.
“The requirements for the granting of motions for reconsideration are set forth in Local
Rule 7.1(h), . . .” Seldon v. Lehman Bros., 2011 U.S. Dist. LEXIS 14705, *1 (E.D.Mich. S.D.
interlocutory orders was based in common law.
As to the grounding of the trial court’s authority to reconsider interlocutory decisions
within the scope of the Federal Rules of Civil Procedure, “[c]ivil [r]ule 54(b) confirms the trial
court’s necessary authority to correct itself.” 18B C.Wright, A. Miller, & E. Cooper, Federal
Practice and Procedure § 4478.1, pp. 692 (2002), Citing Moses H. Cone Mem'l Hosp., supra.
See also Official Committee of Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand,
LLP, 322 F.3d 147, 166-68 (2nd Cir. 2003) (“We have limited district courts’ reconsideration of
earlier decisions under Rule 54(b) by treating those decisions as law of the case, which gives a
district court discretion to revisit earlier rulings in the same case, subject to the caveat that
‘where litigants have once battled for the court’s decision, they should neither be required, or
without good reason permitted, to battle for it again.’ . . . Thus, those decision may not usually
be changed unless there is an ‘intervening change of controlling law, the availability of new
evidence, or the need to correct a clear error or prevent a manifest injustice.’ . . . We review for
abuse of discretion a district court’s denial of the Rule 54(b) motion. . .” (citations omitted).
Motions for reconsideration are not properly construed under Fed.R.Civ.Pr. Rule 60(b) as Rule
60(b) provides for relief “from a final judgment, order, or proceeding . . .”
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February 10, 2011). Although the Local Rules for the Northern District of Ohio do not contain
an equivalent rule that specifically articulates the requirements for granting motions for
reconsideration, the pertinent local rule from the Eastern District of Michigan offers the
following guidelines:
Grounds. Generally, and without restricting the court's discretion, the court will not grant
motions for rehearing or reconsideration that merely present the same issues ruled upon
by the court, either expressly or by reasonable implication. The movant must not only
demonstrate a palpable defect by which the court and the parties and other persons
entitled to be heard on the motion have been misled but also show that correcting the
defect will result in a different disposition of the case.
Local Rule 7.1(h)(3), U.S. District Court, Eastern District of Michigan. (emphasis added). A
"palpable defect" is "a defect that is obvious, clear, unmistakable, manifest or plain." United
States v. Lockett, 328 F. Supp. 2d 682, 684 (E.D. Mich. 2004).
The Court reviews Plaintiff’s Motion for Reconsideration in accordance with a
framework established by the foregoing discussion and finds no intervening change of
controlling law; new evidence; need to correct a clear error or prevent manifest injustice or
palpable defect in its previous ruling sufficient to warrant granting Plaintiff’s Motion for
Reconsideration.
Moreover, what is manifestly obvious to this Court as it has reviewed attorneys Pepper
and TSH’s Motion to Withdraw, Plaintiff’s Verified Opposition and the attorneys’ Reply along
with Plaintiff’s Motion for Reconsideration is the tone of acrimony, loss of faith and distrust that
emerges, palpably in these filings. Indeed, critical and accusatory animus toward attorneys
Pepper and TSH contained in the pages of Plaintiffs most recent filing is further support for the
conclusion that this Court reached in its November 28, 2011 Memorandum Decision and Order.
The Rules of Professional Conduct adopted by the State of Ohio provide, inter alia, that
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an attorney may not continue to represent a client where “there is a substantial risk that the
lawyer’s ability to consider, recommend, or carry out an appropriate course of action for that
client will be materially limited by . . . the lawyer's own personal interests.” Prof. Con. R.
1.7(a)(2). Where such a conflict of interest exists, a “lawyer shall not . . . continue the
representation.” Prof. Con. R Rule 1.7(b),
From the vantage point of this Court, Plaintiff’s statements regarding attorneys Pepper
and TSH, as set forth in the his Opposition and the Motion currently under consideration
convincingly provide additional support for the conclusion previously reached by this Court.
As set forth in his Opposition and the Motion for Reconsideration, Plaintiff’s views of
attorneys Pepper and TSH are that they have lied to the Court, played games to abandon their
responsibilities, manipulated him into losing his ability to maintain the pro bono representation
provided by his previous attorney French and, despite having done quality work on his appeal,
are otherwise discreditable.
Plaintiff states, “Taft itself is engaged in gamesmanship to try to abandon its legal and
ethical responsibilities to me” (Plaintiff’s Opposition, Docket No. 95, 3), “[I[t is time to stop
allowing the attorneys to play games at the Plaintiff’s expense” (Plaintiff’s Opposition, Docket
No. 95, 7), “Indeed, like many of their statements of ‘fact’ in the motion to withdraw, Pepper and
Taft’s assertion that Pepper ‘and other Taft lawyers then communicated regarding whether
Pepper or Taft had an obligation to represent Plaintiff after remand’ is untrue.” (Id.), (emphasis
original), “Importantly, Pepper and Taft do not maintain that it would be an unreasonable
financial burden on them to continue to represent me pro bono.” (Id), (emphasis original) “For
this Court to allow Pepper and Taft to try to suggest otherwise would be to once again endorse
the sort of “gamesmanship” by attorneys at my expense . . .” (Plaintiff’s Opposition, Docket No.
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95, 8), (emphasis original), “Pepper and Taft also fail to appreciate that the legal profession is
not simply about making sure that lawyers make a lot of money.” (Plaintiff’s Opposition,
Docket No. 95, 8-9), “Taft has made unavailable to me the one lawyer who would have been
required to continue to represent me on a pro bono basis.” (Plaintiff’s Opposition, Docket No.
95, 10), “It would be nothing short malpractice for Pepper and Taft to withdraw as my attorneys
in light of their conscious choice not to brief the Conti issue, a Sixth Circuit decision that I had
specifically brought to their attention . . .” (Id.), (italics original), “It is time to finish the case
properly without any more gamesmanship by the attorneys . . .” (Plaintiff’s Opposition, Docket
No. 95, 10-11) “Plaintiff has been unable to secure quality substitute counsel on a pro bono
basis; the fact that Plaintiff would have to pay for a new lawyer . . . is itself prejudicial to
Plaintiff” (Plaintiff’s Motion for Reconsideration, Docket No. 98, 5), “Pepper and Taft now want
to void that agreement so that they can make money on other cases.” (Plaintiff’s Motion for
Reconsideration, Docket No. 98, 6)
Finally, the Plaintiff observes, see (Plaintiff’s Opposition, Docket No. 95, 10), that, if this
contested motion to withdraw is denied, it is unlikely that the he will be able to secure capable
and affordable substitute counsel of his choosing. While Plaintiff has not addressed his financial
condition, and this Court is not inquiring into it, the Court would simply note that frugality and
indigence are not synonymous and affordable legal counsel need not necessarily be pro bono
representation.
Clearly, the resonance of distrust and acrimony expressed by Plaintiff toward attorneys
French and TSH cannot but create an atmosphere ripe for conflict of interest, and sufficient to
justify said attorneys withdrawal from representation.
Accordingly, Plaintiff’s Motion for Reconsideration is DENIED.
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VII. Conclusion.
For the reasons set forth above, the undersigned DENIES Plaintiff’s Motion to Recuse
and DENIES Plaintiff’s Motion for Reconsideration.
IT IS SO ORDERED.
s/ Vernelis K. Armstrong
/s/Vernelis K. Armstrong
United States Magistrate Judge
Date: January 31, 2012
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