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Liberty Mutual Insurance Co. v. Commercial Concrete Systems, LLC

United States District Court, N.D. Florida, Tallahassee Division

April 1, 2017

Liberty Mutual Insurance Company, Plaintiff,
Commercial Concrete Systems, LLC, et al., Defendants.


          Mark E. Walker United States District Judge

         David Copperfield is a world-renowned magician. He has traveled the globe levitating over live audiences, cutting his body in half, making the Statue of Liberty vanish, “erasing” his assistant's limbs, and even walking through-not over-the Great Wall of China. Many leave his performances believing that magic is, in fact, real. But at the end of the day, he is only an illusionist and his tricks are nothing but smoke and mirrors.

         Apparently, Defendants also aspire to be magicians. Their grand finale? Attempting to make a new judge appear in my place out of thin air. Unfortunately for them, law isn't magic; there must be a legal basis for my recusal. And, like David Copperfield's tricks, their motion is nothing but smoke and mirrors.

         Because Defendant's Motion for Disqualification, ECF No. 65, is both factually and legally untenable, it is DENIED.


         Some background is helpful. I had the pleasure of clerking for three different judges after I graduated from law school: Judge Emmett Ripley Cox of the United States Court of Appeals for the Eleventh Circuit, Justice Stephen H. Grimes of the Florida Supreme Court, and my now-colleague Judge Robert L. Hinkle of the United States District Court for the Northern District of Florida. After my second clerkship ended, I accepted an offer to join Cummings, Lawrence & Vezina, P.A. as an associate in mid-1996. Around that same time, then-attorney Hinkle was nominated by President Clinton to serve on the federal bench, and less than two months later he received his commission.[1] I then accepted an offer to clerk for Judge Hinkle as his first law clerk, which required me to leave Cummings, Lawrence & Vezina after a couple short months. I never again worked for Cummings, Lawrence & Vezina or any “related” firm;[2]namely, as relevant here, Vezina, Lawrence & Piscitelli, P.A.

         During my three clerkships, I had the unique experience of seeing first-hand how the judges that I clerked for ran their chambers. And I strive to run my chambers how they ran their chambers. They were, and are, good judges, and I aspire to be the same. Although each judge had their own idiosyncrasies-and I certainly have my own-many conducted the day-to-day tasks, including the administrative duties, in a similar fashion. Attorneys could contact the courthouse-either a judicial assistant in chambers or a courtroom deputy in the clerk's office-to inquire regarding scheduling or other administrative issues. That was, and still is, entirely unremarkable. See Code of Conduct for United States Judges Canon 3(A)(4)(b) (permitting certain “ex parte communication for scheduling, administrative, or emergency purposes” if those communications don't “address substantive matters and the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication”).

         My clerkships sparked judicial ambitions of my own, and I eventually decided to run for Florida Circuit Judge in the 2008 General Election. After I announced my intent to run in late 2006, campaign contributions started flowing in. I amassed $113, 915.74 in campaign contributions. ECF No. 65-4, at 4. Approximately sixty-eight different law firms and 126 individual attorneys contributed to my campaign. See ECF No. 65-4. One of those contributions was from W. Robert “Rob” Vezina, III, who contributed $100 in January of 2007. Id. at 1. My hard-fought campaign (read: unopposed) was successful, and I took the bench on January 6, 2009. Three years later, President Obama nominated me to serve as a judge on this Court. The senate eventually confirmed my nomination, and I have been an active federal district judge since December 7, 2012.

         My docket is currently one of the busiest in the country. Half of this district's seats are vacant and, as a result, I preside over hundreds and hundreds of cases in three different cities. My weighted caseload is almost 1, 100 - considering two active judges are handling the caseload of four active judge. Because time is at such a premium, efficiency and diligence become all-important. Thus, as I am permitted to do so, I allow attorneys to contact my judicial assistant and my courtroom deputy to raise nonsubstantive administrative issues. My staff deserves all the credit for keeping my chambers running as smoothly as it does. Without them, everything would come to a screeching halt.

         Twice in this case attorneys contacted my judicial assistant with non-substantive administrative issues. The first contact involved an erroneous order dismissing this case. Counsel in another matter contacted my courtroom deputy and informed her that a settlement had been reached, as is required under Local Rule 16.2. See N.D. Fla. Loc. R. 16.2(A)(1) (“Each attorney of record must ensure that the Court is notified immediately when . . . [a] civil case is settled.”). My courtroom deputy asked for the case number, but this case's number was accidentally provided. Thus, thinking that this case had been settled, I entered an order dismissing the case and directed the Clerk to enter judgment. ECF No. 32 (dismissal); ECF No. 33 (judgment). Confused, counsel for Plaintiff-Ms. Megan Reynolds-called my judicial assistant and told her that the dismissal must have been entered in error, as the parties had not settled the case. My judicial assistant indicated that the order may have been intended for another case and that she would make sure this issue was addressed expeditiously. Immediately after that call, Ms. Reynolds contacted Defendants' counsel to explain the error and her communication with chambers. ECF No. 65-1, at 1. An order withdrawing the dismissal was posted later that day. ECF No. 34.

         The second contact involved scheduling issues surrounding a discovery matter. On March 10, 2017, non-party Amerisure Insurance Company moved to quash a subpoena issued by Plaintiff, ECF No. 53, and a hearing to address that motion was set for March 14, 2017, ECF No. 54. As she had done before, Ms. Reynolds contacted my judicial assistant to ask whether the parties could appear telephonically. My judicial assistant informed her that the parties needed to appear in-person. After some thought, I changed my mind when I learned the lawyers were from out of town and directed my judicial assistant to email Ms. Reynolds and let her know that the hearing was being converted from an in-person hearing to a telephonic one. ECF No. 65-2, at 6. Plaintiff's counsel then forwarded that email to counsel for Defendant and Amerisure, ECF No. 65-2, at 5, and a notice converting the hearing was posted shortly thereafter. ECF No. 61.

         Defendants filed a motion to disqualify me from this case given my brief tenure at Cummings, Lawrence & Vezina, Mr. Vezina's contribution from ten years ago, and Ms. Reynolds's ex parte communications with my judicial assistant. ECF No. 65. They argue that my “impartiality might reasonably be questioned” and that “an objective, disinterested, lay observer fully informed of the facts . . . would entertain a significant doubt about [my] impartiality.” Id. at 4.


         Motions to disqualify are one of the thornier issues that judges face. They must therefore be handled delicately. Indeed, the issues raised by motions to disqualify are acutely unique. The run-of-the-mill motion, for example, does not require the judge to engage in self-analysis of their own possible biases. But with motions to disqualify, the judge is judging himself. That requires self-awareness, modesty, and personal integrity.

         If a judge harbors doubt “concerning whether his [or her] disqualification is required he [or she] should resolve the doubt in favor of disqualification.” Parker v. Connors Steel Co., 855 F.2d 1510, 1524 (11th Cir. 1988) (citations omitted). Disqualification, however, “cannot be based on ‘unsupported, irrational, or highly tenuous speculation.'” United States v. Cerceda, 188 F.3d 1291, 1293 (11th Cir. 1999) (quoting In re United States, 666 F.2d 690, 694 (1st Cir. 1981)). Rather, it “must be supported by some factual basis . . . .” Id. The judge must also remain vigilant to “the need to prevent parties from too easily obtaining the disqualification of a judge, thereby ...

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