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SIX WEST RETAIL ACQUISITION v. SONY THEATRE MANAGEMENT

February 6, 2003

SIX WEST RETAIL ACQUISITION, INC., PLAINTIFF,
v.
SONY THEATRE MANAGEMENT CORPORATION, ET AL., DEFENDANTS



The opinion of the court was delivered by: Loretta A. Preska, District Judge.

MEMORANDUM AND ORDER

Plaintiff in this antitrust case has moved for recusal under 28 U.S.C. § 455. For the reasons stated below, the motion is denied.

BACKGROUND

I. Facts Disclosed in the Motion Papers

This case was assigned to me on September 25, 2000, following the death of the Honorable David N. Edelstein. (See Notice of Reassignment, Docket No. 54). On September 28, 2000, I issued a Memorandum ("the Memorandum") which stated: "The parties are hereby informed that the law firm in which my husband is a partner, Cahill Gordon & Reindel, from time to time represents Sony Music Entertainment Inc. and Sony Computer Entertainment Inc. and that he works on those matters." (Docket No. 55).*fn1 The Memorandum was docketed and quoted in full on the Southern District's PACER ("Public Access to Court Electronic Records") system on September 29, 2000. (See id.).

In June of 2002, plaintiff changed counsel. (See Order dated June 27, 2002, Docket No. 84 (substituting Crowell & Moring for Boies Schiller & Flexner as counsel for plaintiff)). In an effort to gather a complete record of the case, plaintiff's present counsel reviewed the docket sheet on PACER and, on June 3, 2002, ordered copies of certain documents missing from the files of previous counsel, Boies Schiller & Flexner, including the Memorandum. (See Declaration of Stephanie E. DiCaprio, sworn to on August 19, 2002 ("DiCaprio Decl."), Ex. C to the Declaration of Jeffrey H. Howard, sworn to on October 17, 2002 ("Howard Decl.")). Crowell & Moring received a hard copy of the Memorandum on June 5, 2002. (Howard Decl. ¶ 4).

Plaintiff first raised the issue of recusal some two months after counsel received the Memorandum and nearly two years after the Memorandum was docketed. It did so in a letter to the Court dated August 19, 2002 requesting a pre-motion conference. (Ex. C to Howard Decl.). During the discussion of the timeliness of the proposed recusal motion at that conference and after hearing plaintiff's counsel's representation that the Boies Schiller firm had not previously been aware of the Memorandum, I noted, in substance, that the timeliness requirement for a recusal motion mandated that, at a minimum, someone at the firm declare that it was not the firm's practice to review the court's docket sheet in matters in which the firm appeared and that the firm had not done so in this action.*fn2 Nevertheless, permission to file the recusal motion was granted.

In support of the motion, plaintiff submitted numerous affidavits from Boies Schiller lawyers, including David Boies who had appeared in this action for plaintiff, attesting to that firm's lack of knowledge of the Memorandum, (see Ex. D to Howard Decl.), but, not surprisingly, no affidavit stating that it is not the firm's practice to review the docket sheet. Sheldon H. Solow, President of plaintiff Six West, disavowed any "actual knowledge" of the Memorandum until August 15, 2002. (See Declaration of Sheldon H. Solow, sworn to on August 19, 2002, ¶¶ 1, 4).

II. Other Facts

On or about November 29, 2001, with the consent of the parties, I held a settlement conference in Bridgewater Operating Corporation et al. v. Feldstein et al., No. 01 Civ. 3102. The conference was attended by, among others, Mr. Solow, a counterclaim defendant there, and his attorney in that action, David Boies of the Boies Schiller firm. No settlement was reached, and the parties proceeded to brief the issues of res judicata, collateral estoppel, lack of jurisdiction and the like. On August 16, 2002, a Judgment and Order of Permanent Injunction was issued in that case that can fairly be characterized as adverse to Mr. Solow's interests. (See Civil Docket Sheet for Case No. 01 Civ. 3102, Docket No. 43). Mr. Solow and others filed a notice of appeal on September 18, 2002. (Id., Docket No. 44). Plaintiff here, a company of which Mr. Solow is President, first raised the issue of recusal three days after the ruling adverse to Mr. Solow in 01 Civ. 3102. (See Ex. C to Howard Decl.).

DISCUSSION

I. Judicial Disqualification under 28 U.S.C. § 455

Section 455 of Title 28 provides in relevant part as follows:

(a) Any justice, judge, or magistrate 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:
(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest ...

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