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American Center for Civil Justice v. Ambush

January 5, 2010

THE AMERICAN CENTER FOR CIVIL JUSTICE, PLAINTIFF/COUNTERCLAIM DEFENDANT,
v.
JOSHUA M. AMBUSH, DEFENDANT/COUNTERCLAIM PLAINTIFF.



The opinion of the court was delivered by: Deborah A. Robinson United States Magistrate Judge

MEMORANDUM OPINION

Plaintiff's Motion to Recuse Magistrate Judge Robinson (Document No. 45) is pending for determination by the undersigned. Upon consideration of the motion, the memoranda in support thereof and in opposition thereto and the entire record herein, Plaintiff's motion will be denied.

BACKGROUND

Plaintiff characterizes itself as "a non-profit organization dedicated to recompense for victims of terrorism[.]" Second Amended Complaint (Document No. 25), ¶1. Plaintiff alleges that "[t]o accomplish its mission, [it] enters into written agreements with victims of terrorism or the estate representatives of murdered victims... [and] [u]nder the terms of these [agreements],... advances funds for litigation and retains law firms and individual lawyers to prosecute the claims[.]" Id., ¶8. Plaintiff alleges that it engaged Defendant, a lawyer, to help pursue litigation on behalf of victims of a 1972 attack at Lod Airport in Israel. Id., ¶¶14, 18. Plaintiff refers to the civil action ultimately filed on behalf of the victims as "the Franqui Case[.]"*fn1 Id., ¶ 23. At issue in the instant action are the parties' competing claims regarding, inter alia, the compensation Plaintiff owes Defendant for the services he rendered with respect to the investigation and litigation of the Franqui action. Id.,¶¶ 52-65; see also Defendant Ambush's Answer and Counterclaim (Document No. 27); Answer to Counterclaim (Document No. 30).

The instant action was referred to a United States Magistrate Judge "for management and resolution of all discovery-related issues." Order (Document No. 37) at 1. The Clerk of the Court randomly referred this action to the undersigned in accordance with the order and referral of the assigned United States District Judge. Referral to Magistrate Judge (Document No. 38). Thereafter, the undersigned scheduled a status conference for September 11, 2009. See 09/08/2009 ECF entry. At the status conference, the undersigned informed counsel for the parties -- both of whom were present -- that one of the civil actions offered by Plaintiff as an example of the litigation for which it "advances funds... and retains law firms and individual lawyers to prosecute the claims on behalf of the victims" was an action referred to the undersigned.*fn2 In response, counsel for Plaintiff stated that "we are very familiar with the proceeding before your honor and have absolutely no concern about that with respect to this matter before you now"; counsel for Defendant stated that "we also were aware of what the court just disclosed, and therefore have considered it, and have no difficulty with you handing these discovery disputes."

The response of Plaintiff's counsel in open court notwithstanding, Plaintiff -- through the same counsel -- filed a motion for the recusal of the undersigned ten days later. See Plaintiff's Motion to Recuse Magistrate Judge Robinson ("Motion to Recuse") (Document No. 45). In it -- contrary to the response of Plaintiff's counsel on the record -- Plaintiff states that "[a]t the time of the [status] conference, Counsel for [Plaintiff] was not aware of the issue raised by the Court." Id. at 2.*fn3 As grounds of its motion, Plaintiff asserts only that "Counsel for [Plaintiff] has since learned, however, that [Plaintiff] does in fact have concerns about Magistrate Judge Robinson's prior exposure to and ruling on litigation similar to the Franqui suit that underlies the instant action." Id.*fn4 As relief, Plaintiff asks that the undersigned "exercise its discretion and take whatever action it would have taken had [Plaintiff] raised an objection at the September [11], 2009 scheduling conference." Id. Plaintiff's argument consists entirely of the proposition that "[a] magistrate judge has broad discretion [in] deciding whether recusal is appropriate." Id. at 1 (citing Cobell v. Norton, 237 F. Supp. 2d 71, 78 (D.D.C. 2003)).

Defendant opposes Plaintiff's motion. Defendant observes that Plaintiff, in its motion, fails to address Section 455 of Title 28 of the United States Code, the statute which governs disqualification of a federal judicial officer, making it "difficult to confirm on which provision therein it is moving." Defendant Ambush's Opposition to Plaintiff's Motion to Recuse (Document No. 48) at 2. Defendant submits that Plaintiff has failed to demonstrate that disqualification is required under either provision of Section 455. Id. at 2; see also id. at 3 ("The fact that Judge Robinson previously issued a decision on the merits of a case paid for by the Plaintiff, but involving different parties, is not a sufficient grounds to reasonably question her ability to impartially decide the merits of the disputes between the parties to this case.").*fn5

Plaintiff, in his reply, makes no reference to Section 455 of Title 28, or to Defendant's assertion that Plaintiff has failed to demonstrate, in accordance with that statute, that recusal is required. See Plaintiff's Reply in Support of Motion to Recuse Magistrate Judge Robinson ("Plaintiff's Reply") (Document No. 52). Rather, Plaintiff states that "[Plaintiff's] Motion simply requests that the Court exercise its discretion to take whatever action it would have taken at the September 11, 2009 status conference, if [Plaintiff] had raised an issue then[,]" and proffers that "no party will be prejudiced by assignment of this matter to a different magistrate judge." Id.

DISCUSSION

The principal statutory authority which governs disqualification of a federal judicial officer is Section 455 of Title 28 of the United States Code.*fn6 Section 455 provides, in pertinent part:

(a) Any justice, judge, or 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 ...


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