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AUSCAPE INTERNATIONAL v. NATIONAL GEOGRAPHIC SOCIETY

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

ORDER

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 Page 2 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. ยง 455(b)(2) does not apply.

  Accordingly, for the reasons set forth in Faulkner and in this order, the motion to recuse is denied.

  SO ORDERED.


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