Fletcher v. Conoco Pipe Line Co., 02-1345.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Riley
• Citation: 323 F.3d 661
• Parties: Dallas FLETCHER and Katherine Fletcher, Appellants, v. CONOCO PIPE LINE COMPANY, Appellee.
• Docket Number: No. 02-1345.,02-1345.
• Decision Date: 24 March 2003

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323 F.3d 661 Dallas FLETCHER and Katherine Fletcher, Appellants,
v.
CONOCO PIPE LINE COMPANY, Appellee. No. 02-1345. United States Court of Appeals, Eighth Circuit. Submitted: November 8, 2002. Filed: March 24, 2003. Rehearing Denied: May 6, 2003.

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Craig R. Heidemann, argued, Bolivar, MO, for appellant.

Richard P. Jacobs, argued, St. Louis, MO (Joseph C. Orlet and Scott K.G. Kozak, on the brief), for appellee.

Before RILEY, BEAM, and SMITH, Circuit Judges.

RILEY, Circuit Judge.

Dallas and Katherine Fletcher (Fletchers) appeal the district court's¹ entry of summary judgment in favor of Conoco Pipe Line Company (Conoco). The Fletchers also allege the district judge erred in failing to recuse himself sua sponte pursuant to 28 U.S.C. § 455(a) (2000). We affirm.

I. BACKGROUND

The Fletchers own a farm in Laclede County, Missouri. Conoco owns and operates petroleum and petrochemical pipelines that run across and adjacent to the Fletchers' farm. To reduce corrosion in the steel pipelines, Conoco employs a cathodic protection system that passes electrical current through the ground and through the steel pipelines.

The Fletchers claim "stray electricity" escaped from Conoco's cathodic protection system on its easement and traveled onto Fletchers' property, causing them to suffer property damage, lost profits, personal injuries, loss of consortium, and loss of enjoyment of life. They filed this lawsuit against Conoco alleging claims of inverse condemnation, nuisance, trespass, ordinary negligence, and negligence based on res ipsa loquitur.

On June 17, 1998, Conoco sent a cathodic expert to test for stray voltage coming from the rectifier ground bed located on the Fletchers' property. Attorney James E. Baldwin (Baldwin) observed the testing

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and took notes. Baldwin has represented the Fletchers in various legal matters since 1972, and, according to Dallas Fletcher, Baldwin represented the Fletchers in this case. The Fletchers disclosed Baldwin as a trial witness.

Conoco moved for summary judgment contending the Fletchers lacked proof Conoco caused any of their damages. In opposition, the Fletchers submitted several affidavits, including one by Baldwin, attesting to his observations of the testing performed by Conoco's expert. Conoco moved to strike Baldwin's affidavit. The district court denied the motion, ruling "Baldwin's testimony regarding volt meter readings should not be stricken." The district court did enter an order striking several of the Fletchers' witnesses, including Baldwin, precluding them from testifying at trial. On the same day, the district court granted summary judgment in favor of Conoco.

After the district court entered summary judgment, Dallas Fletcher prepared an affidavit attesting Baldwin informed him that Baldwin and Judge Whipple are close personal friends who have known each other for thirty-six years and who regularly hunt and camp together. In the same affidavit Fletcher reported Baldwin told him Judge Whipple was an individual client of Baldwin's law firm, Donnelly, Baldwin & Wilhite, P.C., in an ongoing matter. The Fletchers' trial counsel, Craig Heidemann (Heidemann), also prepared a corroborating affidavit attesting Baldwin told him the same information, with the added assertion that Baldwin said he believed a conflict of interest existed.

In light of these revelations, the Fletchers contend Judge Whipple was required under 28 U.S.C. § 455(a) to recuse himself sua sponte based on the appearance of partiality arising from his personal friendship with Baldwin, as well as his ongoing client relationship with Baldwin's law firm. The Fletchers also claim the district court erred in granting summary judgment. The Fletchers seek an order vacating summary judgment and reassigning the case to another district judge.

II. DISCUSSION

A. Judicial Disqualification

Precedent exists in this circuit for reviewing recusal claims first raised on direct appeal. See United States v. Mosby, 177 F.3d 1067, 1068-69 (8th Cir.1999) (defendant claiming judge erred by failing to recuse himself sua sponte pursuant to § 455(a)); United States v. Tucker, 78 F.3d 1313, 1322-24 (8th Cir.1996) (direct appeal seeking recusal of district judge pursuant to appellate court's supervisory authority, 28 U.S.C. § 2106, "where, in the language of 28 U.S.C. § 455(a) (1994), district judge's `impartiality might reasonably be questioned'"). Given this precedent, we must review the merits of the recusal claim.

Ordinarily, we review a judge's refusal to recuse for an abuse of discretion. Moran v. Clarke, 296 F.3d 638, 648 (8th Cir.2002). However, when a recusal claim is not raised below, we apply a lower standard of appellate review and review only for plain error. Cf. United States v. Young, 223 F.3d 905, 908 (8th Cir.2000) (district court's decision that protection afforded plea statements applied to affidavits before the court was reviewed for plain error where claim was not raised below). Our review under the plain error standard is "narrow and confined to the exceptional case where error has seriously affected the fairness, integrity, or public reputation of the judicial proceedings." Chem-Trend, Inc. v. Newport Indus., Inc., 279 F.3d 625, 629 (8th Cir.2002) (citation omitted). We will only reverse if the error prejudiced

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the substantial rights of the Fletchers and would result in a miscarriage of justice. See id.

Under section 455(a), a judge is required to "disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). Congress amended section 455 in 1974 "to clarify and broaden the grounds for judicial disqualification and to conform with the recently adopted ABA Code of Judicial Conduct, Canon 3C (1974)." Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 858 n. 7, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988). We apply an objective standard of reasonableness in determining whether recusal is required. "Under § 455(a), `disqualification is required if a reasonable person who knew the circumstances would question the judge's impartiality, even though no actual bias or prejudice has been shown.'"...