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Maharam v. Patterson

April 25, 2008

PATSY MAHARAM, PLAINTIFF,
v.
JAMES PATTERSON, MICHAEL GARLAND, TIME WARNER, INC., TIME INC., TIME WARNER BOOK GROUP, INC., LITTLE, BROWN AND COMPANY, LINN TANZMAN, AND SAKS INC., DEFENDANTS.



The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.

OPINION AND ORDER

This Order responds to the arguments raised in Plaintiff's April 18, 2008 submission regarding the issue of recusal.

I. Arguments Addressed in Previous Court Orders

The Court addressed several of the arguments raised in Plaintiff's April 18, 2008 submission in previous Court Orders. The Court's March 24, 2008 Order fully addressed the applicability of 28 U.S.C. §§ 455(c) and 455(f).*fn1 (Mar. 24, 2008 Order 6 n.4, 6-9, D.E. 165.) The Court's December 11, 2007 Order addressed the Court's disposal of Chambers copies of materials related to this case following the closure of this case. (Dec. 11, 2007 Order 4, D.E. 107.) The Court adds that it has since then invested significant resources in ensuring the completeness of the record that will be available to the Court of Appeals.

II. Arguments Without Merit

The Court finds that the remaining arguments raised in Plaintiff's April 18, 2008 submission are without merit and do not warrant a detailed analysis. However, the Court provides a concise analysis of these arguments for the ease of the Court of Appeals in reviewing the Court's decision that recusal is not warranted.

A. April 1, 2008 Telephone Conversation

Plaintiff argues that it was inappropriate for the Court to conduct "an ex parte phone call to opposing counsel where plaintiff was not notified or privy to this one-sided conversation." (Pl.'s Apr. 18, 2008 Ltr. 1 n.1.) The Court notes that it was the undersigned's law clerk who made the call, and that it was made only to confirm that Defendants had no objection to Plaintiff's request to include in the record "Mr. Barry's colorful illustrative report." Plaintiff argues that this phone call was made despite the Court's March 24, 2008 Order staying the proceedings regarding the completion of the record. (Id. ¶ 44.)

The history of this minor matter is as follows. In her February 8, 2008 submission, Plaintiff requested that Defendants produce "Mr. Barry's colorful illustrative report" for inclusion in the record. (Pl.'s Feb. 8, 2008 Ltr. 2, D.E. 152.) On March 28, 2008, Defendants attached that document to a submission, but failed to explicitly state that they had no objection to the inclusion of this document in the record. (Apr. 1, 2008 Order, D.E. 166.) On April 1, 2008, the Court's law clerk contacted Defendants' counsel by telephone to confirm that Defendants had no objection to the inclusion of this document in the record.

The Court then ordered the inclusion of this document in the record. (Id.) The April 1, 2008 phone call was made without Plaintiff's participation because (1) the conversation was between the undersigned's law clerk and Defendants' counsel, and the purpose of the call was to act on Plaintiff's request that this document be included in the record, and (2) the conversation did not address the merits of the pending motion. Accordingly, the Court acted appropriately regarding the April 1, 2008 telephone conversation and Plaintiff's argument is without merit.

B. 28 U.S.C § 455(b)(5)(iii)

Plaintiff argues that recusal is warranted under 28 U.S.C. § 455(b)(5)(iii). (Pl.'s Apr. 18, 2008 Ltr. 3.) Under this provision, a judge must recuse herself where the judge, the judge's spouse, "or a person within the third degree of relationship to either of them . . . is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding." My son obviously falls within the third degree of relationship to me. However, recusal is not warranted under this provision for two reasons.

First, as set forth in the Court's March 24, 2008 Order, I did not have actual knowledge of my son's ownership of Time Warner Cable Inc. ("TWC") stock until March 11, 2008. (Mar. 24, 2008 Order 1, 3, 6; D.E. 165.) The plain language of 28 U.S.C. ยง 455(b)(5)(iii) requires actual knowledge. Second, as set forth in the Court's March 24, 2008 Order, "[t]here is no reason to believe that whatever the outcome of this case, my son's financial interest in the TWC subsidiary corporation would have been substantially affected, or affected at all." (Id. at ...


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