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Powe v. Deutsche Bank National Trust Co.

United States District Court, E.D. Texas, Sherman Division

August 4, 2017




         Plaintiffs Regina Y. Powe and Wayne A. Powe, have moved to recuse the undersigned magistrate judge under 28 U.S.C. § 455(a) [Dkt. 70]. Plaintiffs argue the undersigned's impartiality may reasonably be questioned because: (a) in 2011 and 2012-at least three years prior to the undersigned's assignment to the above-captioned case-the undersigned represented Defendant Deutsche Bank in another matter and (b) the undersigned failed to disclose such representation to Plaintiffs at the outset of this case. Reading pro se Plaintiffs' Motion liberally, Plaintiffs also claim recusal is necessary because the undersigned's past rulings and comments in this matter evince a bias against them. The undersigned finds herein that a reasonable, objective person knowing all of the facts would harbor no doubts about the undersigned's impartiality in this matter.


         Plaintiffs, as the party moving to recuse, bear “a heavy burden of proof” in showing the undersigned should recuse. E.g., United States v. Reggie, No. 13-111-SDD-SCR, 2014 WL 1664256, at *2 (M.D. La. Apr. 25, 2014). 28 United States Code section 455(a) provides that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455. The decision whether to recuse under § 455 is committed to the sound discretion of the judge. See, e.g., Garcia v. City of Laredo, 702 F.3d 788, 793-94 (5th Cir. 2012); Sensley v. Albritton, 385 F.3d 591, 598 (5th Cir. 2004) (quoting Chitimacha Tribe v. Harry L. Laws Co., 690 F.2d 1157, 1166 (5th Cir. 1982)).

         The U.S. Supreme Court has made clear “[t]he recusal inquiry must be made from the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances.” Cheney v. U.S. Dist. Court for Dist. of Columbia, 541 U.S. 913, 924 (2004) (emphases added); see also United States v. Morrison, 833 F.3d 491, 506 (5th Cir. 2016), cert. denied, 137 S.Ct. 1098, 197 L.Ed.2d 206 (2017). The Fifth Circuit has interpreted this mandate to mean that “[courts] ask how things appear to the well-informed, thoughtful and objective observer, rather than the hypersensitive, cynical, and suspicious person” while remaining “mindful that an observer of our judicial system is less likely to credit judges' impartiality than the judiciary” would be. United States v. Jordan, 49 F.3d 152, 156-57 (5th Cir. 1995). Indeed, the statute exists to mandate recusal in cases where it truly appears (or is the case that) the presiding judge cannot consider the case impartially-not where a litigant's speculation based on incomplete information implies concealment and impropriety. See H.R. Rep. No. 93-1453, at 6355 (1974).

         Further, the recusal inquiry “is ‘extremely fact intensive and fact bound'” and requires “a close recitation of the factual basis for the . . . recusal motion” by the movant. Republic of Panama v. Am. Tobacco Co., Inc., 217 F.3d 343, 346 (5th Cir. 2000). A court's own analysis must likewise “be guided, not by comparison to similar situations addressed by prior jurisprudence, but rather by an independent examination of the facts and circumstances of the particular claim.” Id.; see also United States v. Bremers, 195 F.3d 221, 226-27 (5th Cir. 1999) (finding that a “similar situation” presented in another case calling for the same district judge's recusal merited independent consideration).


         Plaintiffs assert multiple bases exist for the undersigned's recusal in the instant Motion: (1) the undersigned represented Defendant Deutsche Bank in another matter before the Northern District of Texas in 2011 and/or 2012; (2) the undersigned improperly concealed and/or failed to give Plaintiffs notice of her prior representation of Defendant Deutsche Bank; and (3) the undersigned made numerous statements and rulings on the record during a hearing on June 21, 2017 (“Hearing”) that further demonstrate the undersigned's bias [Dkt. 70].[1]

         Prior Representation of Deutsche Bank

         Plaintiffs assert recusal is necessary because the undersigned has previously represented Defendant Deutsche Bank and Plaintiffs are entitled to have a judge who has not been previously affiliated with Deutsche Bank. To reiterate, pursuant to § 455(a), recusal is necessary if in light of all of the underlying facts and circumstances, an objective, reasonable observer would question the undersigned's impartiality in this matter. Recusal is not appropriate in this matter.

         The undersigned made an appearance on behalf of Deutsche Bank in a case before the Northern District of Texas on January 12, 2012. Williams v. Deutsche Bank Nat'l Tr. Co., Northern District of Texas Case No. 3:11-cv-03223, Dkt. 12 (Unopposed Motion for Withdrawal and Substitution of Counsel). As an initial matter, the undersigned highlights the gap between the representation of Deutsche Bank and the assignment to the instant matter of nearly three years. The Williams case was removed to federal court on November 18, 2011, and concluded in under a year on October 12, 2012, while the undersigned was assigned the instant case on September 28, 2015. The undersigned's representation of Deutsche Bank constituted approximately one percent of the undersigned's work in private practice during years 2011 and 2012 and the Williams case was resolved in a short amount of time, through settlement, and with no dispositive briefing. Moreover, at all times related to the representation of Deutsche Bank, the undersigned was an associate-not a partner-at the firm, and thus did not control or direct any activities on the matter. In light of these facts, the undersigned's past representation of Deutsche Bank provides no basis for recusal in this case. See Chitimacha Tribe of La., 690 F.2d at 1166 (finding judge's former representation of one of the parties “in unrelated matters” did not warrant recusal); cf. Mangum v. Hargett, 67 F.3d 80, 82 (5th Cir. 1995) (finding under separate provision of § 455 that the judge's status as member of the prosecution staff when the habeas claimant in the case before the judge had pleaded guilty did not warrant recusal); Black v. Am. Mut. Ins. Co., 503 F.Supp. 172, 173-74 (E.D. Ky. 1980) (finding a judge's prior involvement with a party while in private practice “litigat[ing] unrelated cases” an insufficient basis for recusal under the objective, reasonable person standard).

         The undersigned further notes the case Plaintiffs point to are not similar and/or the same as the instant matter. In Williams, the plaintiffs alleged they had closed a valid loan for certain property in December 2005, that Deutsche Bank “as Trustee of the Home Equity Mortgage Loan Asset-Backed Trust Series INABS 2005-D” subsequently acquired the note and deed of trust comprising the loan in 2010, and that Deutsche Bank in its capacity as trustee for the same trust foreclosed the loan and purchased the property at foreclosure. Id., Dkt. 1, Ex. B. The Williams plaintiffs did not assert the underlying loan or lien attached to the property were void or even voidable-indeed, they alleged “the originator, IndyMac Bank, F.S.B., or at least its agent MERS, still legally owned and held the Note”-and claimed only that Deutsche Bank's foreclosure and actions incident thereto harmed the plaintiffs. Id. In October 2012, the Williams plaintiffs voluntarily dismissed the case with prejudice, noting “that all matters in controversy . . . ha[d] been fully and finally compromised and settled.” Id., Dkts. 18-19. By contrast, in the instant case, Plaintiffs assert claims based on allegations that the lien on which Defendant seeks to foreclose is invalid. In addition, this case has proceeded to dispositive motions practice, and the undersigned has ruled and/or made recommendations both for and against each of the Parties throughout the pendency of this case [see, e.g., Dkts. 21 (finding Plaintiffs' claims should be dismissed); 30 (deeming Plaintiffs' late-filed opposition to Defendant's counterclaim timely filed)].

         In sum, no objective, reasonable observer would question my impartiality in light of the foregoing. As explored supra, my former, brief representation of Deutsche Bank involved none of the same issues as those presented in the instant case. The representation concluded approximately three years prior to the assignment of this matter to the undersigned, without adversarial dispositive motions practice, and while the undersigned was an associate attorney. This case does not present a “close call” for recusal but is, to the contrary, devoid of the appearance of impropriety. The undersigned accordingly finds no basis for recusal under § 455(a).

         To the extent Plaintiffs argue the undersigned had a separate, independent duty to disclose this prior representation at the outset of the undersigned's assignment to this case, the statute does not support such theory. A judge may (and should) provide parties notice of prior representation or other facts that might serve as a basis for recusal “[w]here the ground for disqualification arises . . . under [§ 455(a)], ” as such grounds may be waived. 28 U.S.C. § 455(e). Subsection (e) does not impose an additional duty of disclosure and, in any event, does not apply when subsection (a) would not require recusal. See, e.g., Barksdale v. Emerick, 853 F.2d 1359, 1363 (6th Cir. 1988); Ceeves v. S. Clays, Inc., 797 F.Supp. 1570 (M.D. Ga. 1992) (noting that, “whenever it appears that disqualification may be required pursuant to § 455(a), the judge must either withdraw or make ‘a full ...

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