Brooks et al v. GAF Materials Corporation

Filing 21

ORDER OF RECUSAL as set out. Signed by Honorable Henry M Herlong, Jr on 7/28/11. (sfla)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION

Jack Brooks and Ellen Brooks, on behalf
of themselves and all others similarly
situated,
Plaintiffs,
vs.
GAF Materials Corporation,
Defendant.

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C.A. No. 8:11-983-HMH

OPINION & ORDER

Upon review of the record and for the reasons set forth below, the court has determined
that the undersigned should recuse himself in this matter. Under 28 U.S.C. § 455, this court
may sua sponte recuse itself from further participation in this matter.
The Defendant first removed this action to this court on May 26, 2006. The Plaintiffs
filed a motion to remand on June 20, 2006, arguing that the case must be remanded because the
amount in controversy does not exceed $75,000, exclusive of interest and costs, for diversity
jurisdiction under 28 U.S.C. § 1332. (C.A. No. 8:06-01613-HMH Pls. Mem. Supp. Remand 2.)
The court granted the Plaintiffs’ motion and the case was remanded on July 24, 2006. After the
Plaintiffs filed an amended complaint asserting a putative class action on November 27, 2007,
the Defendant removed this action for a second time on December 12, 2007. (C.A. No.
8:07-03988-HMH Not. of Removal.) On December 18, 2007, the court remanded this action for
lack of jurisdiction based on the one-year cap on removal set forth in 28 U.S.C. § 1446(b).

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Although the Defendant did not move to reconsider, the court determined that because this case
is a putative class action, the one-year time bar to removal did not apply. See 28 U.S.C.
§ 1453(b). The court rescinded its December 18, 2007, order and directed the parties to respond
to the issue of whether the amount in controversy “exceeds the sum or value of $5,000,000,
exclusive of interest and costs.” 28 U.S.C. § 1332(d)(6). On January 10, 2008, the Plaintiffs
filed another motion to remand. At that time, the Plaintiffs’ amended complaint stated that the
“amount in controversy for the entire proposed Class does not exceed five million dollars.”
(C.A. No. 8:07-3988-HMH Am. Compl. ¶ 29.) Further, the Plaintiffs’ amended complaint
provided that “[t]he Plaintiffs’ individual recovery, as well as any putative Class Members’
individual recovery, exclusive of interest and costs, is not to exceed $74,999.00.” (C.A. No.
8:07-3988-HMH Am. Compl. Prayer for Relief E.) The Plaintiffs reiterated in their
memorandum in support of the motion to remand that the amount in controversy did not meet
the jurisdictional minimum. (C.A. No. 8:07-3988-HMH Pls. Mem. Supp. Mot. Remand 1-5.)
The Defendants argued that the court should independently assess the amount in
controversy because of the potential for manipulation by the Plaintiffs based on Rule 54(c) of
the South Carolina Rules of Civil Procedure, which provides that “every final judgment shall
grant the relief to which the party in whose favor it is rendered is entitled, even if the party has
not demanded such relief in his pleadings.” Therefore, the Defendant argued that the Plaintiffs
could recover more than $5,000,000. Although the court recognized the potential for
manipulation, the court admonished the Plaintiffs that “a subsequent increase in the amount
sought by plaintiffs would not be a good career move for plaintiffs’ attorneys considering their
anticipated future dealings with this court and would probably be barred by judicial estoppel.”
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(C.A. No. 8:07-03988-HMH Jan. 31, 2008 Order (quoting Jones v. Allstate Ins. Co., 258 F.
Supp. 2d 424, 427 n.2 (D.S.C. 2003) (internal quotation marks omitted)).) After review, the
court granted the Plaintiffs’ motion to remand on January 31, 2008, and ordered that
with respect to all claims, the Plaintiffs are barred from recovering a total amount
of damages, including actual damages, punitive damages, treble damages, and
statutory attorney’s fees, exceeding five million dollars ($5,000,000), exclusive of
interest and costs for the putative class action, and the Plaintiffs are barred from
recovering a total amount of damages, including actual damages, punitive
damages, treble damages, and statutory attorney’s fees, exceeding seventy-four
thousand nine hundred ninety-nine dollars ($74,999.00), exclusive of interest and
costs, for any individual claims.
(C.A. No. 8:07-03988-HMH Jan. 31, 2008 Order.)
On April 25, 2011, the Defendant again removed the action to this court after the state
court granted the Plaintiffs’ motion to amend their complaint to seek in excess of $5 million
dollars. The Plaintiffs allege they did not discover that the amount in controversy exceeded
$5 million dollars until after certain information was produced by the Defendant during
discovery. (Pls. Resp. Mot. Status Conference 5-6.)
28 U.S.C. § 455(a) requires that a judge “disqualify himself in any proceeding in which
his impartiality might reasonably be questioned.”
The issue . . . is not the Court’s own introspective capacity to sit in fair and honest
judgment with respect to the controverted issues, but whether a reasonable
member of the public at large, aware of all the facts, might fairly question the
Court’s impartiality. This is an objective standard and “where the question is
close, the judge whose impartiality might reasonably be questioned must recuse
himself from the trial.”
United States v. Ferguson, 550 F. Supp. 1256, 1260-61 (D.C.N.Y. 1982).
In the Defendant’s motion for a status conference in this case, the Defendant submits that
the court must determine
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(1) whether the class was properly certified in light, for example, of the differences
between the South Carolina and Federal Rules of Civil Procedure
. . . ; (2) the effect of the $5 million limitation previously ordered by this Court on
Plaintiffs’ recent amendment to their complaint . . . ; (3) the scheduling of the
remaining fact and expert discovery; and (4) the resolution of dispositive
post-discovery motions.
(Def. Mot. Status Conference 2.) The Defendant alleges that
[t]his case returns to federal court because of Plaintiffs’ game-playing. Claiming
that they were masters of their Complaint with an unfettered right to tailor their
allegations to avoid federal jurisdiction, Plaintiffs obtained a remand from this
Court to state court. But when they were faced with an appeal that would overturn
class certification and summary judgment decisions in their favor, Plaintiffs
retailored their Complaint to create federal jurisdiction.
(Def. Resp. Regarding Jurisdiction 6.)
Based on the foregoing and out of an abundance of caution, the undersigned believes that
recusal is appropriate because “his impartiality might reasonably be questioned.” § 455(a).
Thus, to avoid any appearance of impartiality and in the interests of justice, this case should be
assigned to another district judge.
IT IS SO ORDERED.

s/Henry M. Herlong, Jr.
Senior United States District Judge
Greenville, South Carolina
July 28, 2011

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