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Jackson v. Scotts Co.

February 10, 2009


The opinion of the court was delivered by: Lewis A. Kaplan, District Judge


This employment discrimination case now is before the Court on (1) defendant's motion to dismiss the action, pursuant to Fed. R. Civ. P. 37, for non-compliance with a discovery order as well as (2) plaintiff's motions to stay proceedings on defendant's motion to dismiss pending the disposition of a complaint by plaintiff's counsel to another body under the judicial conduct rules. The basis of that complaint is the allegedly erroneous failure of the undersigned to recuse himself from this case. This memorandum and order disposes of these motions.


This case has a long history, but it suffices for the most part to outline the major details.

Attempts to Procure Remand Based on Supposed Workers' Compensation Claim

The action originally was brought in the New York Supreme Court, Bronx County, but was removed to this Court on the basis of diversity of citizenship. Plaintiff initially moved to remand, contending that the complaint asserted a claim under the New York Workers' Compensation Law.*fn1 That motion was denied on February 21, 2008 on the ground that the complaint did not even purport to assert a claim under the Workers' Compensation Law -- indeed, it did not even contain the word "worker."*fn2

Plaintiff subsequently has made repeated efforts to overcome that ruling. The details need not be recounted. The efforts all were unsuccessful, and plaintiff's counsel ultimately was sanctioned for this and other misbehavior.*fn3

Discovery Problems

As the case proceeded into discovery, problems continued.

On April 11, 2008, the Court approved a consent scheduling order entered into by the parties.*fn4 It required, among other things, completion of discovery by September 5, 2008. But that was not to be.

In July 2008, the Court granted defendant's motion to compel plaintiff to comply with her obligations under Rule 26(a)(1)(A)(iii) by July 29 on pain of possible preclusion of evidence of damages.*fn5 On August 18, the Court granted defendant's motion to compel production of documents and answers to interrogatories (the "August 18 Order").*fn6 In September, the Court granted defendant's motion to preclude plaintiff from offering, among other things, any evidence of economic damages in consequence of her failure to comply with discovery obligations.*fn7

By mid-September 2008, plaintiff still had not submitted to the completion of her deposition or complied fully with her discovery responsibilities. Defendant moved to dismiss the action pursuant to Rule 37.*fn8 In a December 24, 2008 order (the "December 24 Order"), the Court found that it was "abundantly clear" that plaintiff had not complied with her discovery obligations. It nevertheless granted the defendant's motion only to the extent of ordering plaintiff to appear for and submit to the completion of her deposition by the end of January and to produce certain other discovery as required by the August 18 Order.*fn9 The order, however, expressly warned that any failure to comply could result in sanctions, including dismissal of the action. It is plaintiff's failure to comply with the December 24 Order that underlies defendant's present motion to dismiss.

The Recusal Efforts

Plaintiff's counsel, evidently dissatisfied with the Court's prior rulings in this case, wrote to the Chief Judge on September 29, 2008, albeit without sending copies to her adversary or the undersigned. Her letter contended that she had:

"learned that there may possibly be a connection between [the undersigned] and the Defendant The Scotts Company ('Scotts') that occurred while he was a partner at Paul, Weiss, Rifkind, Wharton & Garrison ('Paul Weiss'). It appears that Paul Weiss represented Scotts on a matter called the Millennium Growth Plan."

A footnote indicated that counsel had "enclosed and highlighted the AOL search document [and other materials] that leads me to believe that there may be a connection."

As will appear below, the materials in question on their face did not support counsel's belief which, in any event, was wrong. For the moment, however, it need be noted only that plaintiff's counsel requested that the Chief Judge stay the case "until information regarding [the undersigned's] status, during the relevant time with Paul Weiss, is learned."*fn10

On the following day, plaintiff's counsel wrote to the undersigned and asked whether Paul Weiss had represented Scotts while the undersigned was with the firm. Unlike her letter to the Chief Judge, this letter did not reveal her professed belief that Paul Weiss had done so or, more importantly, disclose the basis for that professed belief. A few days later, my assistant responded, "as a matter of courtesy rather than of obligation, that [the undersigned did] not recall the defendant in this case having been a client of Paul Weiss... during his tenure at the firm."

More than two months went by without any apparent action by plaintiff. Then, on December 15, 2008, plaintiff's counsel moved to disqualify the undersigned on the ground that the failure to recall the defendant having been a client of Paul Weiss during his tenure with the firm gave reasonable grounds to question his impartiality.*fn11 The motion -- like the September 29 letter to the Court -- did not disclose plaintiff's counsel's professed belief that Paul Weiss had represented the defendant or the basis for that point of view. Thus, plaintiff's point was that recusal was required by the stated lack of recollection as distinguished from the actual existence of an attorney-client relationship between Paul Weiss and the defendant while the undersigned was at the firm. This of course she had known since October 3, 2008, the date upon which the Court responded to her inquiry.

The Court promptly denied the motion, noting, among other things, that: "The fact that the undersigned so responded to the inquiry by plaintiff's counsel would not in any case constitute a basis for disqualification. It certainly does not evidence the personal bias or prejudiced required for disqualification under Section 144. It does not reflect the 'personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding' that is required for disqualification under Section 455(b)(1). And, although plaintiff's notice of motion does not refer to Section 455(a), there is nothing about the Court's response that suggests that any reasonable person, aware of all of the facts, would entertain the slightest suspicion that the undersigned's 'impartiality might reasonably be questioned,' the standard applicable under that statute. See, e.g., In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1309 (2d Cir.1988) ('[T]he test of impartiality is what a reasonable person, knowing and understanding all the facts and circumstances, would believe.'), reh'g denied, 869 F.2d 116 (2d Cir.), cert. denied, 490 U.S. 1102 (1989)."*fn12

On December 16, 2008, the day following the denial of the motion, the undersigned received from Judge Wood the September 29 letter from plaintiff's counsel with the enclosed Internet materials. This brought to my attention for the first time plaintiff's counsel's belief that Paul Weiss had represented defendant in 1999 in connection with its Millennium Growth Plan as well as the Internet materials she had sent to the Chief Judge.

The Court promptly reconsidered its ruling in light of this additional material, but again denied the motion to recuse. The order stated in part:

"First, there is nothing in the materials that plaintiff sent to the Chief Judge that in fact supports her speculation that my former firm represented defendant in connection with the Millennium Growth Plan or anything else, whether in 1999 or at any other time.

"Second, I left Paul Weiss in 1994, more than five years before the effective date of the Millennium Growth Plan.

"Third, 28 U.S.C. § 455(b)(2) in pertinent part requires disqualification only '[w]here in private practice [the judge] served as a lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter.' See generally Faulkner v. Nat'l Geographic Soc'y, 296 F. Supp. 2d 490-91 (S.D.N.Y. 2003), aff'd, 409 F.3d 26, 41-43 (2d Cir. 2005). These criteria manifestly are not met here."*fn13

Plaintiff's counsel did not cease. On December 17, 2008, she attempted to file a so-called First Motion to Amend/Correct Motion and Notice of Motion for the Disqualification/Recusal of the Honorable Lewis A. Kaplan.*fn14 Although it was rejected by the Clerk's Office for failure to comply with electronic filing requirements, the Court considered it.

The new motion contended that the Court was obliged to recuse on the theory that its failure recall any representation of the defendant by Paul Weiss violated the Second Circuit's Mandatory Conflicts Screening Plan (the "Plan").*fn15 That motion too was denied.*fn16 After pointing out that the Plan is directed principally at financial interests, a term of art defined as "ownership of a legal or equitable interest, however small, or a relationship as director, advisor, or other active participant in the affairs of a party..," the Court added in relevant part:

"This is not to say that a judge's previous professional representation of a party, or a previous or even present representation of a party by someone with whom the judge once practiced law, invariably is irrelevant. As the Court previously has pointed out, Section 455(b)(2) and Canon 3C(1)(b) require disqualification '[w]here in private practice [the judge] served as lawyer in the matter in controversy, or a lawyer with whom [the judge] previously practiced law served during such association as a lawyer concerning the matter.' (Emphasis added) But the Second Circuit Plan does not purport to require judges to remember the entire client lists of large law firms of which they were members more than a decade before, much less to keep abreast of the current client lists of such firms -- a requirement that often could not be reconciled with the right of clients to ensure the confidentiality of their attorney-client relationships. Nor would any such requirement make sense in light of the fact that it is only representations of a party 'in the matter in controversy' that even potentially might be disqualifying.

"In this case, plaintiff has not come remotely close to anything disqualifying. There is no reason to suppose that the firm in which the undersigned practiced until his appointment more than 14 years ago ever represented the defendant. Even if it did, that would not be disqualifying. The amended complaint here alleges that the plaintiff was hired by the defendant in 2001, Am Cpt ¶ 10, which was about seven years after the undersigned left the practice of law. The circumstances of plaintiff's employment, which is the subject matter of this case, therefore necessarily post-date by years the departure of the undersigned from the private practice of law. Accordingly, the undersigned could not possibly have represented the defendant 'in the matter in controversy,' and no 'lawyer with whom he previously practiced law' could have done so 'during such association.'"*fn17

But this did not end the matter either. Plaintiff's counsel filed another motion to recuse the undersigned on December 31, 2008, essentially rehashing arguments previously rejected and attempting to justify her delay in filing an earlier ...

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