United States District Court, E.D. Texas, Sherman Division
WAYNE A. POWE, REGINA Y. POWE, Plaintiffs,
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR RESIDENTIAL ASSET SECURITIZATION TRUST SERIES 2004-A7 MORTGAGE PASS-THROUGH CERTIFICATES 2004-G; Defendant.
MEMORANDUM OPINION AND ORDER ON PLAINTIFF'S
MOTION TO RECUSE
Christine A. Nowak UNITED STATES MAGISTRATE JUDGE
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
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)).
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).
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
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].
Representation of Deutsche Bank
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.
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).
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)].
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).
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 ...