Rodriguez-Vilanova v. Stryker Corporation

Filing 40

MEMORANDUM AND ORDER re 34 Motion to Disqualify Judge. The Court finds that my impartiality cannot reasonably be questioned in this case. Plaintiff's motion is accordingly DENIED. Plaintiffs opposition to the motion for summary judgment remains due on December 27, 2013. Signed by Judge Francisco A. Besosa on 12/17/2013. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
GLORIA RODRIGUEZ-VILANOVA,
Plaintiff,
v.

Civil No. 11-1153 (FAB)

STRYKER CORPORATION,
Defendant.

MEMORANDUM & ORDER
BESOSA, District Judge.
Before the Court is plaintiff Gloria Rodriguez Vilanova’s
(“Rodriguez”) motion pursuant to 28 U.S.C. § 455(a) requesting that
I

disqualify

myself

from

this

case,

(Docket

defendant’s opposition, (Docket No. 39).

No.

34),

and

For the reasons stated

below, the Court DENIES plaintiff’s motion.
I.

Factual Background
On

December

5,

2013,

plaintiff

and

plaintiff’s

counsel

discovered that my son, Francisco Besosa Martinez (“Besosa”), works
as

an

associate

with

one

of

the

law

firms

defendant in this case, Schuster & Aguilo LLP.

representing

the

(Docket No. 34-1.)

It was further discovered that Besosa assists Lourdes Hernandez
(“Hernandez”), one of the capital partners of the firm and attorney
of record in this case, in a case not before this Court but before
the Anti-Discrimination Unit of the Puerto Rico Department of Labor
(Docket Nos. 34-2, 34-3).

There is no specific allegation that

Civil No. 11-1153 (FAB)

2

Besosa is assisting Hernandez in this litigation.1 Plaintiff moved
for my disqualification from the case two days after the defendant
filed a motion for summary judgment.

(See Docket No. 29.)

Plaintiff contends that by virtue of Besosa’s position at the
law firm, there is no way to know if Besosa has participated in any
way in this case and it is reasonable to conclude that Hernandez
evaluates Besosa’s performance, which in turn possibly affects any
compensation or salary increase.

(Docket No. 34 at ¶ 3.)

These

reasons, plaintiff argues, warrant my disqualification because my
impartiality

might

section 455(a).

reasonably

be

questioned

pursuant

to

As can be seen from the analysis below, these

reasons are simply not sufficient to disqualify me.
II.

Disqualification Pursuant to 28 U.S.C. § 455(a)
Section 455(a) states:

judge

of

proceeding

the
in

United
which

“Any justice, judge, or magistrate

States
his

shall

disqualify

impartiality

might

himself

in

any

reasonably

be

questioned.” 28 U.S.C. § 455(a). This statute requires recusal if
a reasonable person, knowing all of the facts, would harbor doubts
concerning the judge’s impartiality.

Liljeberg v. Health Serv.

Acquisition Corp., 486 U.S. 847, 860-1 (1988).
implicates competing policy interests.

This section

On the one hand, “courts

must not only be, but must seem to be, free of bias or prejudice.”
In re United States, 158 F.3d 26, 30 (1st Cir. 1998) (citing In re

1

I have disqualified myself in all cases in which my son
appears as counsel of record or as a party. See Misc. No. 06-232
(FAB), “Amended Permanent Order of Disqualification.”

Civil No. 11-1153 (FAB)

3

United States, 666 F.2d 690, 694 (1st Cir. 1981)).

“On the other

hand, recusal on demand would put too large a club in the hands of
litigants and lawyers, enabling them to veto the assignment of
judges for no good reason.”

Id. Section 455(a) determinations

“inevitably turn[] on the facts,” and thus, “[c]omparison . . . is
an inexact construct” in this context.
citation

omitted).

The

First

Id. at 28, 31 (internal

Circuit

Court

of

Appeals

has

expressed that close questions should be resolved in favor of
disqualification.

Id. at 30.

As plaintiff points out, section 455(a)’s legislative history
indicates Congress amended it with in order to shift the balance
from one imposing on judges a “duty to sit” to one that resolves
close question in favor of disqualification. See H.R. Rep. No. 931453, at 6355 (1974), reprinted in 1974 U.S.C.C.A.N. 6351, 6355.
This legislative history also indicates, however, that Congress did
not intend for the provision to be used by “those who would
question [the judge’s] impartiality . . . seeking to avoid the
consequences of [the judge’s] expected adverse decision.”

Id.

Rather, “[n]othing in this proposed legislation should be read to
warrant the transformation of a litigant’s fear that a judge may
decide a question against him into a ‘reasonable fear’ that the
judge will not be impartial.”
judges

of

their

own

Id.

choice.”

Litigants are “not entitled to
Id.

As

the

Seventh

Circuit

subsequently noted,
A
thoughtful
observer
understands
that
putting
disqualification in the hands of a party, whose real fear

Civil No. 11-1153 (FAB)

4

may be that the judge will apply rather than disregard
the law, could introduce a bias into adjudication. Thus
the search is for a risk substantially out of the
ordinary.
In re Mason, 916 F.2d 384, 386 (7th Cir. 1990) (emphasis in
original).
III. Analysis
Though the inquiry before the Court is a fact-specific one,
the

Court

considers

instructive.

the

two

cases

offered

by

plaintiff

as

First, plaintiff points to a Fifth Circuit Court of

Appeals case affirming the district judge’s decision not to recuse
himself when his son was an associate at a law firm participating
in the litigation.

United States ex rel Weinberger v. Equifax,

Inc., 557 F.2d 456, 463 (5th Cir. 1977).2

Plaintiff offers this

case for the proposition that my relationship with an associate at
a participating law firm should be considered for the purposes of
section 455(a) analysis.

The Court agrees.

The Court also finds

instructive the Fifth Circuit’s reasoning underlying its finding
that section 455(b) did not require recusal.3

That court found

that section 455(b) did not apply to the scenario because (1) the
judge’s son was not “acting as a lawyer in the proceeding” as
prohibited by section 455(b)(5)(iii); and (2) due to the son’s

2

As plaintiff’s motion points out, the First Circuit Court of
Appeals has not specifically addressed this factual scenario.
3

The plaintiff does not move for disqualification pursuant to
the mandatory provisions of section 455(b). Nevertheless, the Court
visits the reasoning on this point as it is instructive for the
disqualification determination in this case.

Civil No. 11-1153 (FAB)

5

status as an associate, rather than a partner in the firm, his
salary interests were too remote to fall under the “financial
interest” prohibition of section 455(b)(4). Id. at 463. The court
of appeals noted that although these matters did not require
disqualification

pursuant

to

section

455(b),

they

consideration pursuant to section 455(a) standards.

warranted

Id. at 464.

The court found no error in the district court’s decision that the
judge’s impartiality could not reasonably be questioned. Id. Many
other courts to consider this issue have found no need for recusal
pursuant to section 455(a) where a judge’s relative is an associate
at a law firm participating in the litigation.
v.

Albritton,

385

F.3d

591,

600

(5th

Cir.

See, e.g., Sensley
2004)

(rejecting

plaintiff’s contention that “when an immediate family member is an
at-will

employee

in

the

office

representing

a

party,

the

impartiality of the judge is called into question); Bartholomew v.
Stassi-Lampman, 95 F.3d 1156, at *2 (9th Cir. 1996) (finding no
need for recusal where the judge’s daughter was an associate with
law

firm

representing

a

party

as

long

as

daughter

did

not

participate actively in the case); Oriental Fin. Grp., Inc. v. Fed.
Ins. Co., 450 F. Supp. 2d 169, 171 (D.P.R. 2006) (Gelpi, J.)
(citing advisory opinions of the Judicial Conference Committee on
Codes of Judicial Conduct for the proposition that a judge is not
required to recuse himself where his son is an associate in a law
firm that is counsel of record for a party); United States v.
Edwards, 39 F. Supp. 2d 692, 714-15 (M.D. La. 1999)(collecting

Civil No. 11-1153 (FAB)
caselaw

and

citing

6
Judicial

Conference

Committee

advisory

opinions).
Plaintiff next points to as persuasive a Seventh Circuit Court
of Appeals case finding that the district judge should have recused
himself upon motion where the judge’s brother was a senior partner
at a law firm representing one of the parties in the litigation.
SCA Serv., Inc. v. Morgan, 557 F.2d 110 (7th Cir. 1977).

There,

the court of appeals found that disqualification was warranted
pursuant to both section 455(a) and (b), and did not clarify
whether one ground would be independently sufficient.

Id. at 116.

The appellate court’s section 455(a) analysis necessarily took into
account its findings pursuant to its 455(b) analysis. The court of
appeals based its holding in part on a finding that the judge’s
brother, as a senior partner at the participating law firm, had
pecuniary and non-pecuniary interests that could be “substantially
affected by the outcome of the proceeding” in violation of section
455(b)(4).

Id. at 115.

Additionally, in its section 455(a)

analysis, the court of appeals noted allegations that the judge
communicated

privately

with

his

brother

regarding

the

issue,

creating an “impression of private consultation and appearance of
partiality which does not reassure a public already skeptical of
lawyers and the legal system.”

Id. at 116.

This consideration

further confirmed the court’s conclusion that disqualification was
warranted.

Id.

Civil No. 11-1153 (FAB)

7

Informed by the reasoning of other courts on this issue, the
Court finds that this is not even a close case and that my
impartiality

can

not

reasonably

questioned

based

on

the

circumstances raised. Unlike in Morgan, the Court is not presented
with any argument or allegation that would require disqualification
pursuant

to

section

participating

law

455(a):

firm;

Besosa

he

is

is

not

not

a

alleged

partner

to

be

at

a

actively

participating in this litigation; there are no allegations that
Besosa has privately communicated with me regarding this case.
What has been alleged is that Besosa, like the judge’s son in
Weinberger, works as an associate at a law firm participating in
the litigation. This, without more, does not call into question my
impartiality and accordingly does not warrant my disqualification.
The

Court

further

notes

that

plaintiff’s

motion

for

disqualification was filed just two days after the defendant moved
for summary judgment, almost three years into this litigation.
Because there is no objective basis to question my impartiality in
this case, disqualification here would merely provide plaintiff
with “recusal
section 455.
IV.

on

demand,” in

contravention

of

the

spirit

of

See In re United States, 158 F.3d at 30.

Conclusion
The

Court

takes

very

seriously

plaintiff’s

contentions

regarding my duty to disqualify myself from this case.

The Court

also believes, however, that “a federal judge has a duty to sit
where not disqualified which is equally as strong as the duty to

Civil No. 11-1153 (FAB)
not sit where disqualified.”
598-8.

8
Sensley v. Albritton, 385 F.3d at

For the reasons stated above, the Court finds that my

impartiality

cannot

reasonably

be

questioned

in

this

case.

Plaintiff’s motion is accordingly DENIED.
Plaintiff’s opposition to the motion for summary judgment
remains due on December 27, 2013.
IT IS SO ORDERED.
San Juan, Puerto Rico, December 17, 2013.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE