Doe v. Cabrera

• Decision Date: 30 September 2015
• Docket Number: Civil Action No. 14–1005 (RBW)
• Parties: Jane Doe, Plaintiff, v. Alfredo Simon Cabrera, Defendant.
• Court: U.S. District Court — District of Columbia

134 F.Supp.3d 439

Jane Doe, Plaintiff,

v.Alfredo Simon Cabrera, Defendant.

Civil Action No. 14–1005 (RBW)

United States District Court, District of Columbia.

Signed September 30, 2015

Andrew G. Slutkin, Christopher J. Mincher, Steven J. Kelly, Silverman, Thompson, Slutkin & White, LLC, Baltimore, MD, Geoffrey Giles Hengerer, Office of the Governor, Annapolis, MD, for Plaintiff.

Benjamin Voce–Gardner, Zuckerman Spaeder, LLP, New York, NY, Rachel F. Cotton, Amit P. Mehta, Jon Ross Fetterolf, Zuckerman Spaeder, LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge

This civil matter is currently before the Court on the plaintiff's Motion to Disqualify & Memorandum in Support Thereof ("Mot."), which seeks to have this Court recuse itself from further presiding over this matter and vacate several of its recent discovery rulings, id. at 28–29; see also August 18, 2015 Transcript of Emergency Teleconference ("Aug. 18, 2015 Tr.") at 6:1323, ECF No. 76; August 18, 2015 Order ("Aug. 18, 2015 Order") at 1, ECF No. 75. The motion is primarily based on comments made by one of the Court's law clerks ("Law Clerk I"), who insinuated in jest to members of defense counsel's law firm, including an attorney who has made an appearance in this matter on behalf of the defendant, that she influenced the Court's decisionmaking process with respect to certain discovery rulings in this case. To be sure, the Court does not condone these comments even though they were made in jest. There was no factual basis for them, and they should not have been made. For the reasons that follow,¹ however, the ill-advised conduct by the law clerk provides no basis for the Court to recuse itself.

I. BACKGROUND

A. The Court's Law Clerks

Law Clerk I began serving as a law clerk for the Court in November 2013.² Aug. 18, 2015 Order, Exhibit ("Ex.") C (Declaration of Marina Fernandez ("Decl.I")) ¶ 2. From "the onset of [her] clerkship," the Court "instructed" her that she "was conflicted from participating in any cases being litigated by the law firm of Zuckerman Spaeder [LLP]" ("Zuckerman Spaeder") because her father was a partner at the firm. Id. In accordance with that instruction, the Court told Law Clerk I "to have no substantive involvement" with this case when it was randomly assigned to this Court, id. ¶ 5, as Zuckerman Spaeder had been retained by the defendant for his defense. The Court tasked Law Clerk II to assist on the case,³ see Aug. 18, 2015 Order, Ex. B (Declaration of Hugham Chan ("Decl.II")) ¶ 2, and Law Clerk I has "never" provided the Court "with any substantive input" regarding this case, Aug. 18, 2015 Order, Ex. C (Decl.I) ¶¶ 17–18.

During Law Clerk I's tenure in the Court's chambers, she acquired the services of Zuckerman Spaeder to represent her in a "personal legal matter." Id. ¶ 3. The firm's representation of her "lasted from January 2015 through February 2015 with some follow-up discussion in May 2015."⁴ Id. ¶ 3 n.1. Associate Ben Voce–Gardner ("the associate") was part of Law Clerk I's legal team in her personal matter. See id. ¶ 3; see also Aug. 18, 2015 Order, Ex. A (August 11, 2015 Letter from Fetterolf ("Aug. 11, 2015 Ltr.")) at 2. Through the associate's representation of Law Clerk I on her personal matter, the two became friends and periodically sent text messages to each other, even after the legal relationship concluded. See Aug. 18, 2015 Order, Ex. C (Decl.I) ¶ 3; Aug. 18, 2015 Order, Ex. A (Aug. 11, 2015 Ltr.) at 2. That associate has also appeared on behalf of the defendant in this case. E.g., Appearance of Counsel, ECF No. 9. The Court, however, was never aware that this associate provided legal services for Law Clerk I, until the events that gave rise to this motion occurred.

B. The Court's Discovery–Related Rulings And Law Clerk I's Communications With Members Of Defense Counsel's Firm

1. Telephonic Hearing

On June 29, 2015, the parties "contacted" the Court, seeking to "resolve a dispute that had arisen during a deposition" of a third party. Mot. at 5. Law Clerk I "answered the phone and stated that [Law Clerk II] was not available." Id.; see also Aug. 18, 2015 Order, Ex. C (Decl.I) ¶ 7. The parties outlined the discovery dispute to Law Clerk I, and she relayed that information to the Court, while reminding the Court that she was screened from involvement in the case and could not assist the Court any further. See Aug. 18, 2015 Order, Ex. C (Decl.I) ¶ 8. The discovery dispute concerned a third-party deponent, who objected to the presence of a defense expert during her deposition.⁵ See id.; see also Opp'n Ex. B (Deposition Transcript of Jennifer Anne Graebe, R.N. ("Graebe Dep. Tr.")) at 6:5–7:1. When Law Clerk II became available, which was almost immediately after the dispute was presented to the Court, the Court only sought his substantive assistance in handling the dispute. The Court subsequently determined that there was no basis for the objection, and in light of the fact that neither party objected to the presence of the defendant's expert at the deposition,⁶ the Court permitted the deposition to proceed and allowed for briefing from any party, if case authority existed contrary to the Court's ruling.⁷ Later during the day after the discovery dispute had been resolved, Law Clerk I sent a text message to the associate, indicating that she had "[dealt] with an over[-]the[-]phone objection in one of [his] cases," and asked whether he was in Washington, D.C. for the deposition. Mot. at 6 (quoting text message sent from Law Clerk I to the associate). The associate was apparently unaware that a deposition was being conducted in this case on that day. See Aug. 18, 2015 Order, Ex. A (Aug. 11, 2015 Ltr.) at 2.

2. In–Court Motions Hearing

On August 5, 2015, the Court heard oral arguments concerning various discovery-related motions. See, e.g., August 5, 2015 Transcript of Motions Hearing ("Aug. 5, 2015 Tr."), ECF No. 74. At the conclusion of that hearing, the Court orally granted the defendant's motion to require the plaintiff to submit to an independent medical examination, see generally August 7, 2015 Order (providing legal bases for the Court's oral ruling), ECF No. 73; see also August 5, 2015 Order ("Aug. 5, 2015 Order") at 1, ECF No. 71, as well as the defendant's motion for the disclosure of the plaintiff's grand jury testimony,⁸ see generally Doe v. Cabrera, 126 F.Supp.3d 160, 2015 WL 5190437 (D.D.C.2015) (providing legal bases for the Court's oral ruling); see also August 6, 2015 Order ("Aug. 6, 2015 Order") at 1, ECF No. 72. Law Clerk I and Law Clerk II were both present in the courtroom during the hearing. See Aug. 18, 2015 Order, Ex. C (Decl.I) ¶¶ 10–12. Later that day, as well the day after the hearing, Law Clerk I reminded Law Clerk II that he needed to help the Court memorialize the Court's oral rulings in paper orders, as the Court had limited availability during the remainder of that week and the following week. See id. ¶¶ 13–14. The Court memorialized its rulings on August 5, 2015, see Aug. 5, 2015 Order at 1 (granting motion for independent medical examination), and on August 6, 2015 (granting motion for disclosure of grand jury testimony), see Aug. 6, 2015 Order at 1.

After the Court issued its August 6, 2015 Order, that same day and unbeknownst to the Court and Law Clerk II, Law Clerk I sent text messages to the associate stating that he was going to "owe" her an alcoholic beverage. See Aug. 18, 2015 Order, Ex. C (Decl.I) ¶¶ 14–15; see also Aug. 18, 2015 Order, Ex. A (Aug. 11, 2015 Ltr.) at 1. More specifically, Law Clerk I insinuated that she had contributed to the Court's issuance of its August 6, 2015 Order in the defendant's favor. See Aug. 18, 2015 Order, Ex. A (Aug. 11, 2015 Ltr.) at 1 & n.2 (Law Clerk I sending text message to associate that "as of 3:34 [p.m.] today," when the Court issued its order, the associate "owe[d] [her] a beer [ (or wine)!]"). Law Clerk I also sent a similarly-worded text message to her father. Id. at 1 n.1. Law Clerk I has represented that these text messages were made in jest, as she was "pregnant" and was therefore "not drink[ing]" alcohol. Aug. 18, 2015 Order, Ex. C (Decl.I) ¶ 14. Nevertheless, realizing the impropriety of the text messages, she informed the Court about them that same night. See, e.g., id. ¶¶ 15–16. The following day, August 7, 2015, the Court contacted the parties to schedule an emergency conference to disclose what Law Clerk I had told the Court.

During the emergency conference, which occurred in the courtroom, telephonically, and on the record, the plaintiff orally moved for the Court to, inter alia, recuse itself from this case and to vacate its discovery rulings from the August 5, 2015 motions hearing. See, e.g., Aug. 18, 2015 Order at 1. The Court denied the motion without prejudice, but allowed the parties to brief the issue of recusal. See id. The plaintiff has renewed her motion in written filings.

II. LEGAL STANDARD

"[B]ecause judges are presumed to be impartial, ‘the Court must begin its analysis of the allegations supporting a request [for recusal] with a presumption against disqualification.’ " SEC v. Bilzerian, 729 F.Supp.2d 19, 22 (D.D.C.2010) (second alteration in original) (ellipses omitted) (quoting Cobell v. Norton, 237 F.Supp.2d 71, 78 (D.D.C.2003) ); accord United States v. Ali, 799 F.3d 1008, 2015 WL 5011433, at *4 (8th Cir.2015) ( "[A] party introducing a motion to recuse carries a heavy burden of proof; a judge is presumed to be impartial and the party seeking disqualification bears the substantial burden of proving otherwise." (quoting Fletcher v. Conoco Pipe Line Co., 323 F.3d 661, 664 (8th Cir.2003) )). Under 28 U.S.C. § 455(a) (2012), a judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The party moving for disqualification of the judge must make "a showing of an appearance of bias or prejudice sufficient to permit the average...