United States District Court, S.D. New York
January 5, 2004.
AUSCAPE INTERNATIONAL, et al., Plaintiffs,-against-NATIONAL GEOGRAPHIC SOCIETY, et al., Defendants
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
Plaintiffs move to recuse the undersigned. The motion incorporates in
its entirety the similar motion filed in related cases, which was denied
in Faulkner v. National Geographic Society, ___ F. Supp.2d ___, Nos. 97
Civ. 9361 (LAK), 99 Civ. 12488 (LAK), 2003 WL 23018513 (S.D.N. Y. Dec.
23, 2003). To the extent that the two motions are identical, which is
virtually in their entireties, no additional statement is required, and
the Court refers to the Faulkner opinion. There is an additional point
made here, however, that warrants the briefest response.
Plaintiffs point out that this case, unlike Faulkner and its companion
cases, involves not only The Complete National Geographic, but also
certain other products that allegedly were produced prior to August
1994, when the undersigned resigned from the law firm. Thus, the late
Judge Higginbotham and the undersigned both were at the law firm from the
first quarter of 1993 through August 1994 during which time Judge
Higginbotham was a trustee of the National Geographic Society. This,
however, is immaterial. Plaintiffs do not claim that Judge Higginbotham
"served during such association [i.e., his professional association with
the undersigned] as lawyer concerning the matter" in controversy, even
giving appropriate regard to the fact that "the matter" in this case,
unlike Faulkner, includes the pre-1994 products. Nor, for the reasons set
forth in Faulkner, is he a "material witness concerning it."*fn1 That
would be so even if the issues that plaintiffs
now raise concerning the pre-1994 products arose as matters of potential
concern at the National Geographic Society.*fn2 In consequence,
28 U.S.C. § 455(b)(2) does not apply.
Accordingly, for the reasons set forth in Faulkner and in this
order, the motion to recuse is denied.