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Doe v. Cabrera

United States District Court, D. Columbia

September 30, 2015

JANE DOE, Plaintiff,

Page 440

          For JANE DOE, Plaintiff: Andrew G. Slutkin, LEAD ATTORNEY, Geoffrey Giles Hengerer, SILVERMAN, THOMPSON, SLUTKIN & WHITE, Baltimore, MD.

         For ALFREDO SIMON CABRERA, Defendant: Benjamin Voce-Gardner, LEAD ATTORNEY, PRO HAC VICE, ZUCKERMAN SPAEDER, LLP, New York, NY; Jon Ross Fetterolf, ZUCKERMAN SPAEDER, LLP, Washington, DC.


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         REGGIE B. WALTON, United States District Judge.

         This civil matter is currently before the Court on the plaintiff's Motion to Disqualify & Memorandum in Support Thereof (" Mot." ), which seeks to have this Court recuse itself from further presiding over this matter and vacate several of its recent discovery rulings, id. at 28-29; see also August 18, 2015 Transcript of Emergency Teleconference (" Aug. 18, 2015 Tr." ) at 6:13-23, ECF No. 76; August 18, 2015 Order (" Aug. 18, 2015 Order" ) at 1, ECF No. 75. The motion is primarily based on comments made by one of the Court's law clerks (" Law Clerk I" ), who insinuated in jest to members of defense counsel's law firm, including an attorney who has made an appearance in this matter on behalf of the defendant, that she influenced the Court's decisionmaking process with respect to certain discovery rulings in this case. To be sure, the Court does not condone these comments even though they were made in jest. There was no factual basis for them, and they should not have been made. For the reasons that follow,[1]

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however, the ill-advised conduct by the law clerk provides no basis for the Court to recuse itself.

         I. BACKGROUND

         A. The Court's Law Clerks

         Law Clerk I began serving as a law clerk for the Court in November 2013.[2] Aug. 18, 2015 Order, Exhibit (" Ex." ) C (Declaration of Marina Fernandez (" Decl. I" )) ¶ 2. From " the onset of [her] clerkship," the Court " instructed" her that she " was conflicted from participating in any cases being litigated by the law firm of Zuckerman Spaeder [LLP]" (" Zuckerman Spaeder" ) because her father was a partner at the firm. Id. In accordance with that instruction, the Court told Law Clerk I " to have no substantive involvement" with this case when it was randomly assigned to this Court, id. ¶ 5, as Zuckerman Spaeder had been retained by the defendant for his defense. The Court tasked Law Clerk II to assist on the case,[3] see Aug. 18, 2015 Order, Ex. B (Declaration of Hugham Chan (" Decl. II" )) ¶ 2, and Law Clerk I has " never" provided the Court " with any substantive input" regarding this case, Aug. 18, 2015 Order, Ex. C (Decl. I) ¶ ¶ 17-18.

         During Law Clerk I's tenure in the Court's chambers, she acquired the services of Zuckerman Spaeder to represent her in a " personal legal matter." Id. ¶ 3. The firm's representation of her " lasted from January 2015 through February 2015 with some follow-up discussion in May 2015." [4] Id. ¶ 3 n.1. Associate Ben Voce-Gardner (" the associate" ) was part of Law Clerk I's legal team in her personal matter. See id. ¶ 3; see also Aug. 18, 2015 Order, Ex. A (August 11, 2015 Letter from Fetterolf (" Aug. 11, 2015 Ltr." )) at 2. Through the associate's representation of Law Clerk I on her personal matter, the two became friends and periodically sent text messages to each other, even after the legal relationship concluded. See Aug. 18, 2015 Order, Ex. C (Decl. I) ¶ 3; Aug. 18, 2015 Order, Ex. A (Aug. 11, 2015 Ltr.) at 2. That associate has also appeared on behalf of the defendant in this case. E.g., Appearance of Counsel, ECF No. 9. The Court, however, was never aware that this associate provided legal services for Law Clerk I, until the events that gave rise to this motion occurred.

         B. The Court's Discovery-Related Rulings And Law Clerk I's Communications With Members Of Defense Counsel's Firm

         1. Telephonic Hearing

         On June 29, 2015, the parties " contacted" the Court, seeking to " resolve a dispute that had arisen during a deposition" of a third party. Mot. at 5. Law Clerk I " answered the phone and stated that [Law Clerk II] was not available." Id.; see also Aug. 18, 2015 Order, Ex. C (Decl. I) ¶ 7. The parties outlined the discovery dispute to Law Clerk I, and she relayed that information

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to the Court, while reminding the Court that she was screened from involvement in the case and could not assist the Court any further. See Aug. 18, 2015 Order, Ex. C (Decl. I) ¶ 8. The discovery dispute concerned a third-party deponent, who objected to the presence of a defense expert during her deposition.[5] See id.; see also Opp'n Ex. B (Deposition Transcript of Jennifer Anne Graebe, R.N. (" Graebe Dep. Tr." )) at 6:5-7:1. When Law Clerk II became available, which was almost immediately after the dispute was presented to the Court, the Court only sought his substantive assistance in handling the dispute. The Court subsequently determined that there was no basis for the objection, and in light of the fact that neither party objected to the presence of the defendant's expert at the deposition,[6] the Court permitted the deposition to proceed and allowed for briefing from any party, if case authority existed contrary to the Court's ruling.[7] Later during the day after the discovery dispute had been resolved, Law Clerk I sent a text message to the associate, indicating that she had " [dealt] with an over[-]the[-]phone objection in one of [his] cases," and asked whether he was in Washington, D.C. for the deposition. Mot. at 6 (quoting text message sent from Law Clerk I to the associate). The associate was apparently unaware that a deposition was being conducted in this case on that day. See Aug. 18, 2015 Order, Ex. A (Aug. 11, 2015 Ltr.) at 2.

         2. In-Court Motions Hearing

         On August 5, 2015, the Court heard oral arguments concerning various discovery-related motions. See, e.g., August 5, 2015 Transcript of Motions Hearing (" Aug. 5, 2015 Tr." ), ECF No. 74. At the conclusion of that hearing, the Court orally granted the defendant's motion to require the plaintiff to submit to an independent medical examination, see generally August 7, 2015 Order (providing legal bases for the Court's oral ruling), ECF No. 73; see also August 5, 2015 Order (" Aug. 5, 2015 Order" ) at 1, ECF No. 71, as well as the defendant's motion for the disclosure of the plaintiff's grand jury testimony,[8] see generally Doe v. Cabrera, 126 F.Supp.3d 160, 2015 WL 5190437 (D.D.C. 2015) (providing legal bases for the Court's oral ruling); see also August 6, 2015 Order (" Aug. 6, 2015 Order" ) at 1, ECF No. 72. Law Clerk I and Law Clerk II were both present in the courtroom during the hearing. See Aug. 18, 2015 Order, Ex. C (Decl. I) ¶ ¶ 10-12. Later that day, as well the day after the hearing, Law Clerk I reminded Law Clerk II that he needed to help the Court memorialize the Court's oral rulings in paper orders, as the Court had limited availability during the remainder of that week and the following week. See id. ¶ ¶ 13-14. The Court memorialized its rulings

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on August 5, 2015, see Aug. 5, 2015 Order at 1 (granting motion for independent medical examination), and on August 6, 2015 (granting motion for disclosure of grand jury testimony), see Aug. 6, 2015 Order at 1.

         After the Court issued its August 6, 2015 Order, that same day and unbeknownst to the Court and Law Clerk II, Law Clerk I sent text messages to the associate stating that he was going to " owe" her an alcoholic beverage. See Aug. 18, 2015 Order, Ex. C (Decl. I) ¶ ¶ 14-15; see also Aug. 18, 2015 Order, Ex. A (Aug. 11, 2015 Ltr.) at 1. More specifically, Law Clerk I insinuated that she had contributed to the Court's issuance of its August 6, 2015 Order in the defendant's favor. See Aug. 18, 2015 Order, Ex. A (Aug. 11, 2015 Ltr.) at 1 & n.2 (Law Clerk I sending text message to associate that " as of 3:34 [p.m.] today," when the Court issued its order, the associate " owe[d] [her] a beer [(or wine)!]" ). Law Clerk I also sent a similarly-worded text message to her father. Id. at 1 n.1. Law Clerk I has represented that these text messages were made in jest, as she was " pregnant" and was therefore " not drink[ing]" alcohol. Aug. 18, 2015 Order, Ex. C (Decl. I) ¶ 14. Nevertheless, realizing the impropriety of the text messages, she informed the Court about them that same night. See, e.g., id. ¶ ¶ 15-16. The following day, August 7, 2015, the Court contacted the parties to schedule an emergency conference to disclose what Law Clerk I had told the Court.

         During the emergency conference, which occurred in the courtroom, telephonically, and on the record, the plaintiff orally moved for the Court to, inter alia, recuse itself from this case and to vacate its discovery rulings from the August 5, 2015 motions hearing. See, e.g., Aug. 18, 2015 Order at 1. The Court denied the motion without prejudice, but allowed the parties to brief the issue of recusal. See id. The plaintiff has renewed her motion in written filings.


         " [B]ecause judges are presumed to be impartial, 'the Court must begin its analysis of the allegations supporting a request [for recusal] with a presumption against disqualification.'" SEC v. Bilzerian, 729 F.Supp.2d 19, 22 (D.D.C. 2010) (second alteration in original) (ellipses omitted) (quoting Cobell v. Norton, 237 F.Supp.2d 71, 78 (D.D.C. 2003)); accord United States v. Ali, 799 F.3d1008, __, 2015 WL 5011433, at *4 (8th Cir. 2015) (" [A] party introducing a motion to recuse carries a heavy burden of proof; a judge is presumed to be impartial and the party seeking disqualification bears the substantial burden of proving otherwise." (quoting Fletcher v. Conoco Pipe Line Co., 323 F.3d 661, 664 (8th Cir. 2003))). Under 28 U.S.C. § 455(a) (2012), a judge " shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The party moving for disqualification of the judge must make " a showing of an appearance of bias or prejudice sufficient to permit the average citizen reasonably to question a judge's impartiality is all that must be demonstrated to compel recusal." United States v. Bostick, 791 F.3d 127, 155 (D.C. Cir. 2015) (quoting United States v. Heldt, 668 F.2d 1238, 1271, 215 U.S.App.D.C. 206 (D.C. Cir. 1981)); see also SEC v. Loving Spirit Found., Inc., 392 F.3d 486, 493, 364 U.S.App.D.C. 116 (D.C. Cir. 2004) (" Recusal is required when 'a reasonable and informed observer would question the judge's impartiality.'" (quoting United States v. Microsoft Corp., 253 F.3d 34, 114, 346 U.S.App.D.C. 330 (D.C. Cir. 2001), cert. denied, 534 U.S. 952, 122 S.Ct. 350, 151 L.Ed.2d 264 (2001))); In re Barry, 946 F.2d 913, 914, 292 U.S.App.D.C. 39 (D.C. Cir. 1991) (" There is, of course, no doubt (1) that one determines a [28 U.S.C. § 455] violation completely without regard to whether there exist adequate independent grounds for the judge's rulings, (2)

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that the appearance-of-partiality test is an objective one (whether an informed observer would reasonably question the judge's impartiality), and (3) that application of the test is wholly independent of whether the judge intends to act with bias or prejudice." ); accord In re Sherwin-Williams Co., 607 F.3d 474, 477-78 (7th Cir. 2010) (" That an unreasonable person, focusing on only one aspect of the story, might perceive a risk of bias is irrelevant. . . . In addition to being well-informed about the surrounding facts and circumstances, for purposes of our analysis, a reasonable person is a 'thoughtful observer rather than a hypersensitive or unduly suspicious person.'" (ellipses and citation omitted) (quoting In re Mason, 916 F.2d 384, 386 (7th Cir. 1990))); United States v. Holland, 519 F.3d 909, 913 (9th Cir. 2008) (similar); Sensley v. Albritton, 385 F.3d 591, 599 (5th Cir. 2004) (courts must consider how the facts would appear to a " well-informed, thoughtful and objective observer, rather than the hypersensitive, cynical, and suspicious person" (quoting United States v. Jordan, 49 F.3d 152, 156 (5th Cir. 1995))); In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1313 (2d Cir. 1988) (" [J]udges determine appearance of impropriety--not by considering what a straw poll of the only partly informed man-in-the-street would show--but by examining the record facts and the law, and then deciding whether a reasonable person knowing and understanding all the relevant facts would recuse the judge." ); United States v. DeTemple, 162 F.3d 279, 287 (4th Cir. 1998) (similar).

         In applying this objective standard, the Court need not accept every fact alleged by the moving party as true. Heldt, 668 F.2d at 1271 (" [T]here is no support for the position that the facts alleged in the papers submitted by a person relying on section 455 must in every case be accepted as true . . . . The very fact that [S]ection 455 is addressed directly to the judge makes it evident that some evaluation by the court of the facts giving rise to the motion is anticipated in most cases." ); see also In re Aguinda, 241 F.3d 194, 201 (2d Cir. 2001) (" [T]he grounds asserted in a recusal motion must be scrutinized with care, and judges should not recuse themselves solely because a party claims an appearance of partiality." ); Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir. 1987) (a court should " not recuse [itself] on unsupported, irrational, or highly tenuous speculation" ); Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass'n, 872 F.Supp. 1346, 1349 (E.D. Pa. 1994) (" [A] judge need not accept as true the motion's factual allegations, but may contradict them with facts drawn from his own personal knowledge." (citing United States v. Balistrieri, 779 F.2d 1191, 1202 (7th Cir. 1985))), aff'd, 107 F.3d 1026 (3d Cir. 1997); United States v. Sciarra, 851 F.2d 621, 625 n.12 (3d Cir. 1988); In re San Juan Dupont Plaza Hotel Fire Litig., 129 F.R.D. 409, 413-14 (D.P.R. 1989) (" Section 455 must be narrowly construed and the allegations of counsel must pass the litmus test of good faith. . . . [A] Section 455 disqualification should not be allowed on the bases of rumors, innuendos, unsupported allegations, or claims that like blind moths, flutter aimlessly to oblivion when placed under the harsh light of the full facts." (citations omitted)). Thus, " except in the most unusual circumstances . . . judges [are trusted] to put their personal feelings aside, [and] recusal must be limited to truly extraordinary cases where . . . the judge's views have become 'so extreme as to display clear inability to render fair judgment.'" Cobell v. Kempthorne, 455 F.3d 317, 332, 372 U.S.App.D.C. 232 (D.C. Cir. 2006) (quoting Liteky v. United States, 510 U.S. 540, 551, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994)); see also Ryan v. FBI, 125 F.Supp.3d 1, __, 2015 WL 4965913, at *2 (D.D.C. 2015) (" A party moving for recusal pursuant to Section 455(a) must demonstrate the court's

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reliance on an extrajudicial source that creates an appearance of partiality or, in rare cases, where no extrajudicial source is involved, a deep-seated favoritism or antagonism that would make fair judgment impossible." (ellipses omitted) (quoting Am. Ctr. for Civil Justice v. Ambush, 680 F.Supp.2d 21, 24-25 (D.D.C. 2010))). As such, " [a] judge is as much obliged not to recuse himself when it is not called for as he is obliged to when it is." In re Drexel Burnham Lambert, 861 F.2d at 1312 (citing In re Union Leader Corp., 292 F.2d 381, 391 (1st Cir.), cert. denied, 368 U.S. 927, 82 S.Ct. 361, 7 L.Ed.2d 190 (1961)); Cobell v. Norton, 237 F.Supp.2d at 102 (similar).

         " [T]he pall that the conduct of a law clerk may cast over the integrity of his [or her] judge, is covered by the appearance of impropriety notion inherent in [S]ection 455(a)." In re San Juan, 129 F.R.D. at 412 n.5. " Nonetheless, whatever appropriate ethical foothold law clerks must obtain in the employ of the judiciary; the judge cannot be made an easy victim of the clerk's follies or perceived faults." Id. " Both bench and bar recognize . . . that judges, not law clerks, make the decisions." In re Allied-Signal Inc., 891 F.2d 967, 971 (1st Cir. 1989). " If a clerk has a possible conflict of interest, it is the clerk, not the judge, who must be disqualified." Hunt v. Am. Bank & Trust Co. of Baton Rouge, 783 F.2d 1011, 1016 (11th Cir. 1986); see also In re Corrugated Container Antitrust Litig., 614 F.2d 958, 968 (5th Cir. 1980) (" [W]e think it fitting to restrict those situations in which the bias of a law clerk will work to disqualify the clerk's employer. Clearly, a law clerk's views cannot be attributed to the judge for whom the clerk works." ), cert. denied sub nom. 449 U.S. 888, 101 S.Ct. 244, 66 L.Ed.2d 114 (1980).

         Finally, a motion to recuse under 28 U.S.C. § 455(a) is committed to the discretion of the Court and denial will be reversed only upon a showing of abuse of discretion. E.g., Bostick, 791 F.3d at 155 (" We review a district court judge's refusal to recuse for abuse of discretion." ); accord In re United States, 666 F.2d 690, 695 (1st Cir. 1981) (" [Because] in many cases reasonable deciders may disagree, the district judge is allowed a range of discretion." ). But if there is any doubt as to " whether . . . disqualification is required," the Court " should resolve the doubt in favor of disqualification." Parker v. Connors Steel Co., 855 F.2d 1510, 1524-25 (11th Cir. 1988) (citing cases).

         III. ANALYSIS

         A. ...

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