Duke v. Pfizer, Inc., Div. of Pfizer Hosp.

• Decision Date: 04 September 1987
• Docket Number: Civ. A. No. 87-71177.
• Citation: 668 F. Supp. 1031
• Parties: Jay DUKE, Plaintiff, v. PFIZER, INC., UNITED DIVISION of PFIZER HOSPITAL PRODUCTS GROUP, and Jerome Mattioli, Defendants.
• Court: U.S. District Court — Western District of Michigan

668 F. Supp. 1031

Jay DUKE, Plaintiff, v. PFIZER, INC., UNITED DIVISION of PFIZER HOSPITAL PRODUCTS GROUP, and Jerome Mattioli, Defendants.

Civ. A. No. 87-71177.

United States District Court, E.D. Michigan, S.D.

September 4, 1987.

COPYRIGHT MATERIAL OMITTED

Eric Lee Clay, Thomas Paxton, Lewis, White & Clay, P.C., Detroit, Mich., for plaintiff.

Joseph P. Marshall, III, Noel Massie, Elizabeth Hardy, Dickinson, Wright, Moon, Van Dusen & Freeman, Detroit, Mich., for defendants.

MEMORANDUM OPINION AND ORDER

FEIKENS, District Judge.

Introduction

This is an opinion regarding a motion for a new trial. The motion has no substance and it is denied.

Plaintiff, having lost his case in a unanimous jury verdict, now seeks to have that trial set aside, claiming that I should not have presided at the trial.

In summary, this case—in which the principal claim is race discrimination—was fully and fairly presented to a jury. It was only after the unanimous jury verdict was returned in favor of defendants and against plaintiff that plaintiff raised the recusal issue.

Plaintiff is entitled to a fair trial; he received a fair trial, as the record will indicate. Thus, his claims of alleged partiality and error are without merit and moot.

Background

Plaintiff, a black sales representative employed by defendant United Division of Pfizer, filed this action in Wayne County Circuit Court in which he alleged race discrimination. Fearing imminent termination and loss of his allegedly unvested pension benefits, plaintiff sought, and obtained, a temporary restraining order preserving his employment status.

The case was removed to the United States District Court for the Eastern District of Michigan and was assigned to me by blind draw on March 27, 1987. Although it was determined that plaintiff's pension benefits had vested,¹ I extended the temporary restraining order with the parties' consent and ordered that plaintiff's clients be notified that they could continue to address communications to him regarding defendant United Division's products. Because of the unusual posture of the case—the allegation of a constructive discharge without actual termination—I suggested, and the parties accepted, an early trial date following a short period for discovery. In the interim, with plaintiff's consent, defendants agreed to provide some job protection.

I recommended this "speedy trial" procedure to insure judicial economy. I did not want to try the case twice—once to determine whether a preliminary injunction should issue and then on the merits to a jury.

Trial commenced on May 18, 1987. Plaintiff was represented by Eric Clay and Thomas Paxton of the firm of Lewis, White & Clay; and defendants were represented by Joseph Marshall, Elizabeth Hardy, Noel Massie and C. Beth DunCombe of the firm of Dickinson, Wright, Moon, Van Dusen and Freeman. Beth DunCombe, while not counsel of record, was frequently in the courtroom during trial and conferred with defendants' counsel.

The case was completed in ten trial days. The jury, consisting of four white persons and two black persons, deliberated less than six hours and returned a verdict against plaintiff and in favor of defendants on all counts.

It was only after the verdict was returned that Messrs. Clay and Paxton made a motion for a new trial, claiming that I should have recused myself and that I should have notified them that members of the Dickinson, Wright firm had represented me on a prior occasion.

As to that matter, the facts are these. In August of 1984, I gave an interview, which was highly publicized, to a Detroit Free Press reporter. As a result of the interview, the Wolverine Bar Association, whose president at that time was George Ashford, a partner in the firm of Dickinson, Wright, filed a complaint against me with the Circuit Council of the United States Court of Appeals for the Sixth Circuit. Joseph Marshall and Beth DunCombe of the Dickinson, Wright firm were also active, along with George Ashford, in filing the complaint.

Thomas Kienbaum (then President of the Detroit Bar Association) and John O'Meara, also partners in the Dickinson, Wright firm, volunteered to represent me before the Circuit Council. They explained to me that they felt they had an obligation, as members of the Bar, to assist me because they believed I had been unfairly accused in the Wolverine Bar Association's complaint. I accepted their offer.

The case was argued before the Circuit Council in December of 1984, and in March of 1985 the Circuit Council dismissed the complaint of the Wolverine Bar Association. Dickinson, Wright was not involved, as a firm, on either side of that matter. The lawyers named acted in their individual capacities.

The jury here returned its verdict on June 9, 1987. On June 26, 1987, Messrs. Clay and Paxton filed a Motion for New Trial alleging, inter alia, that it was error on my part, citing 28 U.S.C.A. §§ 144, 455(a) and 455(b), not to disclose my past "attorney-client relationship with the firm of Dickinson, Wright, Moon, Van Dusen and Freeman," and not to recuse myself. Plaintiff's Motion for New Trial at 16. They argue that my failure to recuse myself and the commission of several alleged errors during the trial entitle plaintiff to a new trial.

I note at the outset that I have both the duty and jurisdiction to decide this motion. The court in Chitimacha Tribe of Louisiana v. Harry L. Laws Co., 690 F.2d 1157, 1162 (5th Cir.1982), noted that the practice of transferring recusal motions to another judge "has been permitted in the past ... but is not to be encouraged. The challenged judge is most familiar with the alleged bias or conflict of interest.... Recusal motions should only be transferred in unusual circumstances."

Judge Sirica's ruling in the "Watergate" case represents the current thinking on the issue: "A judge challenged under these recusal statutes ought to be willing to shoulder the responsibility of ruling in the matter.... If the judge errs in his determination, the proper remedy is in appellate review." United States v. Mitchell, 377 F.Supp. 1312, 1315 (D.D.C.1974), aff'd, 559 F.2d 31 (D.C.Cir.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977). See United States v. Professional Air Traffic Controllers, 527 F.Supp. 1344, 1351 (N.D.Ill.1981); see also United States v. Studley, 783 F.2d 934, 940 (9th Cir.1986).

I. THE RECUSAL ISSUE

28 U.S.C. § 455(a) (1987) provides:

Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

The phrase "might reasonably be questioned" has been defined to mean: might be questioned by "a reasonable person knowing all the relevant facts" and circumstances. Roberts v. Bailar, 625 F.2d 125, 129 (6th Cir.1980) (emphasis supplied). The judge's duty under § 455(a) is to be exercised sua sponte and is not triggered by motion of a party or counsel. See Roberts, 625 F.2d at 128 n. 8.

While the 1974 amendment to § 455(a) eliminated the former "duty to sit" concept and changed the subjective standard to an objective one, it preserved some measure of judicial discretion in the matter: "The issue of disqualification is a sensitive question of assessing all the facts and circumstances in order to determine whether the failure to disqualify was an abuse of sound discretion." 3 U.S.Code Cong. & Admin.News (1974) pp. 6351, 6355. Cf. Potashnick v. Port City Construction Co., 609 F.2d 1101, 1112 (5th Cir.1980), cert. denied, 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed.2d 22 (1980) ("The amendment of 28 U.S.C. § 455 did not alter the standard of appellate review on disqualification issues...."); United States ex rel. Weinberger v. Equifax, Inc., 557 F.2d 456, 464 (5th Cir.1977) (standard on review is still abuse of discretion).

I exercise my discretion and I find that there is no appearance of partiality to a reasonable person knowing the following facts: first, that individual members of the Dickinson, Wright firm were on both sides of the complaint filed against me in 1984; and second, that there was a greater than two-year period of repose between the representation of me by Messrs. Kienbaum and O'Meara and the initiation of this case. I am aware of no case that requires a judge to stand aside a priori under similar facts.²

Where there is no appearance of partiality, "the dignity of the bench, the judge's respect for the fulfillment of his judicial duties, and a proper concern for his judicial colleagues, all require that the judge not recuse himself." Advisory Comm. on Judicial Activities, Op. 52 (1977) (emphasis in original).

A. Dual Representation

What is important in a judge's consideration of recusal is not whether the individual judge concludes that he is able to sit impartially but whether it reasonably appears to the public that the judge can preside impartially. H.R.Rep. No. 93-1453, 93d Cong., 2d Sess. at 5-6 (1974) reprinted in U.S. Code Cong. & Admin.News 6351, 6355; Code of Judicial Conduct for United States Judges Canon 2 (Rev.1986).³ This is crucial because the public's respect for, and faith in, the fairness of the court system rests on a judge's scrupulous dedication to maintaining the appearance, as well as the fact, of impartiality.

A reasonable person, knowing that individual members of Dickinson, Wright assisted me in a previous matter and that individual members of Dickinson, Wright had also filed and pursued a complaint against me in 1984, would not question my impartiality in this case.

What must be said is that the alleged appearance of partiality was only an apparition—not a true appearance of partiality. This conclusion flows from the simple fact that the very lawyers who filed a complaint against me with the Sixth Circuit Council in 1984 were the lawyers who won this case.

B. Period of Repose

Whatever view one might have on this matter, the two-year period of repose between Messrs....