United States District Court, District of Columbia
AMENDED MEMORANDUM OPINION
RANDOLPH D. MOSS United States District Judge.
pro se, Plaintiff Gary Patrick McKee brings this
action against the United States Department of Justice, Gary
Abramson (who is the President of Tower Companies), and John
Foster and Lance Fuchs (both of whom are lawyers in Florida).
The case is currently before the Court on an array of
motions, including Defendants' motions to dismiss, Dkts.
9, 13 & 15, and McKee's motions to recuse the
undersigned judge, Dkt. 20, to appoint counsel, Dkts. 19
& 35, for leave to amend his complaint, Dkt. 21, for
summary judgment, Dkt. 31, and for a hearing, Dkt. 29. The
Court will DENY McKee's motion for recusal; DENY his
motion to appoint counsel; DENY his motion for leave to amend
the complaint as futile; GRANT the pending motions to
dismiss; and DENY all other pending motions as moot.
Automotive Company was a privately held company owned by
members of McKee's family, and McKee was a minority
shareholder. In September 2012, it sold a leasehold
interest in a piece of commercial real estate located in
downtown Washington, D.C., to the Tower Companies. Dkt. 1 at
5; Dkt. 13-2 at 6; Dkt. 13-1 at 1. In this action, McKee
alleges that Washington Automotive's attorneys, John
Foster and Lance Fuchs, colluded with the Gary Abramson, the
President of the Tower Companies, to defraud the McKee
family. Dkt. 1 at 5-7. The complaint also names former
Attorney General Loretta Lynch and the United States
Department of Justice as defendants. The complaint premises
the Court's jurisdiction on the diversity of citizenship
of the parties, see 28 U.S.C. § 1332, but
alleges that Plaintiff McKee and Defendants Foster and Fuchs
are all citizens of the State of Florida. Dkt. 1 at 2-4.
have each filed motions seeking to dismiss. Dkts. 9, 13, 15.
McKee, in turn, has filed motions seeking the recusal of the
undersigned judge, Dkt. 20, the appointment of counsel, Dkts.
19 & 35, and leave to amend his complaint, Dkt. 21. The
Court will first address the motion for recusal.
raises two grounds for recusal: First, in his motion seeking
recusal, he notes that I previously served in the Department
of Justice and was appointed to this Court by President
Obama. In his view, these facts warrant recusal because
“the Department of Justice . . . is a major defendant
in this case” and because President Obama
“appointed the two worst Attorney[s] General the
Department has ever had in [its] history.” Dkt. 20 at
1. Second, in a separate motion seeking a hearing, McKee
alleges that I am a member of the District of Columbia
Commission on Judicial Disabilities and Tenure, which
dismissed a complaint he had filed against four other judges
on a different matter. Dkt. 29 at 1-2. McKee requests that I
“remove [myself] from this case because of being
associated with the commission with Judge Kessler.”
Id. at 2.
is required “in any proceeding in which [a judge's]
impartiality might reasonably be questioned, ” 28
U.S.C. § 455(a), or where, among other reasons, the
judge “has a personal bias or prejudice concerning a
party, ” id. § 455(b)(1), or “has
served in governmental employment and in such capacity
participated as counsel, adviser or material witness
concerning the proceeding or expressed an opinion concerning
the merits of the particular case in controversy, ”
id. § 455(b)(3). The standard for recusal under
§ 455(a) is an objective one, and turns on whether
“a reasonable and informed observer would question the
judge's impartiality.” United States v.
Microsoft Corp., 253 F.3d 34, 114 (D.C. Cir. 2001) (en
banc) (per curiam). “The very purpose of § 455(a)
is to promote confidence in the judiciary by avoiding even
the appearance of impropriety whenever possible.”
Liljeberg v. Health Servs. Acquisition Corp., 486
U.S. 847, 865 (1988).
the facts McKee alleges as true, there is no basis for
recusal in this case. First, McKee is correct that I once
worked at the Department of Justice, but I left the
Department over fifteen years ago and had no involvement of
any kind with this case or the predicate facts. Second, the
identity of the President who appointed the judge assigned to
a case has no bearing on recusal. Even in cases (unlike this
one) in which the appointing President is a party, neither
the recusal statute nor the Code of Conduct for United States
Judges requires a judge's recusal from the case on that
basis. See, e.g., In re Exec. Office of the
President, 215 F.3d 25, 25 (D.C. Cir. 2000) (order of
Tatel, J.). Finally, a decision of the District of Columbia
Commission on Judicial Disabilities and Tenure adverse to
McKee does not constitute a basis for recusal, even accepting
the factual allegation that I am a member of that Commission
(I am not). “[O]pinions formed by the judge on the
basis of facts introduced or events occurring in the course
of the current proceedings, or of prior proceedings,
do not constitute a basis for a bias or partiality motion
unless they display a deep-seated favoritism or antagonism
that would make fair judgment impossible.” Liteky
v. United States, 510 U.S. 540, 555 (1994) (emphasis
added). Even were a lesser standard than “deep-seated
favoritism” rendering fair judgment
“impossible” to apply to prior non-judicial
proceedings such as the Commission proceeding McKee adverts
to here, there is still no basis for recusal on the facts he
(incorrectly) posits. It is even more of a stretch, moreover,
to suggest that my service on this Court with Judge Kessler,
who was a member of the Commission, raises a valid basis for
recusal. No reasonable observer could find a risk of bias or
prejudice on that fact alone.
Court will, accordingly, deny McKee's motion that I
recuse myself from this matter.
has also failed to identify sufficient grounds for the Court
to appoint counsel. Under 28 U.S.C. § 1915(e)(1), the
Court “may request an attorney to represent any person
unable to afford counsel, ” but under this Court's
local rules, “the Court must consider the nature and
complexity of the action, the potential merit of the pro
se party's claims, the demonstrated inability of the
pro se party to retain counsel by other means, and
the degree to which the interest of justice will be served by
appointment of counsel.” Lamb v. Millennium
Challenge Corp., 16-cv-765, --- F.Supp.3d ---, 2017 WL
74690, at *13 (D.D.C. Jan. 6, 2017) (citing L. Cv. R.
83.11(b)(3)). For various reasons, including those set forth
below, the Court cannot conclude that McKee's claims have
sufficient merit to justify the appointment of counsel.
Court will, accordingly, deny McKee's motion for the
appointment of counsel.
jurisdictional defects in the complaint and in McKee's
proposed amended complaint are self-evident. McKee's
complaint relies exclusively on diversity as the basis for
the Court's jurisdiction. Dkt. 1 at 4. McKee, a citizen
of Florida, has attempted to sue two other Florida citizens
(and others) while invoking the Court's diversity
jurisdiction under 28 U.S.C. § 1332. He cannot do so.
Federal diversity jurisdiction exists only in cases in which
no plaintiff is a citizen of the same state as any defendant;
diversity jurisdiction “is lacking if there are any
litigants from the same state on opposing sides.”
Saadeh v. Farouki, 107 F.3d 52, 55 (D.C. Cir. 1997)
(internal quotation mark omitted) (quoting Prakash v. Am.
Univ., 727 F.2d 1174, 1178 n.25 (D.C. Cir. 1984)). McKee
makes only a cursory response on this point: “The
diversity statement is a joke by all the defendants, there
are individuals in numerous states, so that's out the
window.” Dkt. 35 at 1. Unfortunately for McKee, the
fact that he seeks ...