Robertson v. Cartinhour

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
WADE A. ROBERTSON, )
)
Plaintiff, )
)
v. ) Civil Action No. 09-01642 (ESH)
)
WILLIAM C. CARTINHOUR, JR., )
)
Defendant. )
__________________________________________)
MEMORANDUM OPINION
Before the Court are Plaintiff’s Motion to Reconsider or in the Alternative Vacate This
Court’s Order of February 22, 2010; Plaintiff’s Motion to Recuse Pursuant [to] 28 U.S.C. § 144;
and Plaintiff’s Emergency Motion to Strike or Vacate & to Stay All Further Proceedings. For
the reasons set forth herein and at the hearing held on March 1, 2010, the Court denies plaintiff’s
motions.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Wade Robertson filed a pro se complaint1 on August 28, 2009, seeking
declaratory judgment against William Cartinhour, Jr. (Compl. ¶ 24.) Robertson alleged that he
and Cartinhour were “engaged together . . . in a continuing and active [business] partnership”
located in the District of Columbia. (Id. ¶ 7.) Robertson further alleged that Cartinhour had
signed a written indemnification agreement (“Indemnification Agreement”) stating that
Cartinhour “w[ould] not make any claims or demands, or file any legal proceedings against
1
After a countersuit was filed by the defendant, three attorneys from two different firms entered
their appearance on plaintiff’s behalf.
Wade A. Robertson,” including claims concerning “any future injuries, losses, and damages not
now known or anticipated, but which may later develop or be discovered.” (Id. ¶ 9.) According
to Robertson, Cartinhour’s attorneys had sent Robertson written demands for money and had
threatened a lawsuit against him. (Id. ¶¶ 12-15.) Robertson alleged that these demands breached
the Indemnification Agreement and therefore he was entitled to a judgment declaring
Cartinhour’s obligations to release, hold harmless, and indemnify Robertson. (Id. ¶¶ 16, 24.)
In October 2009, Cartinhour filed his answer and a countersuit against Robertson.
Cartinhour, an 82-year-old retiree, alleged that he had been introduced to Robertson, an attorney
licensed to practice in the District of Columbia and California, in 2004. (Counter-Compl. ¶ 3.)
According to Cartinhour, Robertson represented that he was seeking an investor on behalf of
some plaintiffs and their counsel in a “multi-billion dollar [securities] claim with a high
likelihood of success, including the anticipated recovery of attorney’s fees in the hundreds of
millions of dollars.”2 (Id. ¶ 6.) In reliance on Robertson’s representations regarding the Liu
securities case, Cartinhour entered into a partnership with Robertson and contributed
$3,500,000.00 to that partnership between 2004 and 2006. (Id. ¶¶ 10, 15, 21.) Of these monies,
$1,500,000.00 was contributed after Liu had been thrown out by Judge Scheindlin, because,
according to Cartinhour, he did not know that the case had been dismissed and Robertson
continued to represent that he was “confident that [their] position continue[d] to grow stronger
and that [they] w[ould] ultimately be wildly successful in this endeavor.” (Id. ¶¶ 17, 19, 21, Ex.
D [Mar. 15, 2006 Letter from Robertson to Cartinhour].) Cartinhour also alleged that Robertson
2
The case, In re Initial Public Offering Sec. Litig. (Liu v. Credit Suisse First Boston Corp.)
[“Liu”], was dismissed by the district court in April 2005. 383 F. Supp. 2d 566 (S.D.N.Y. 2005),
aff’d sub nom. Tenney v. Credit Suisse First Boston Corp., No. 05-3430, 2006 WL 1423785, at
*1-2 (2d Cir. May 19, 2006), cert. denied sub nom. Liu v. Credit Suisse First Boston Corp., 549
U.S. 1077 (2006).
2
had acted as his attorney and had advised him not only about investing in the partnership, but
also with respect to his will, estate planning, and taxes. (Id. ¶ 33.) Cartinhour claimed that he
had paid Robertson at least $50,000.00 for those services. (Id.)
After the Supreme Court denied certiorari in Liu in December 2006, Robertson refused to
respond to Cartinhour’s inquiries about the whereabouts of the partnership funds or the status of
the now-defunct litigation. (Id. ¶ 25.) He also refused to produce an accounting of the
partnership funds or to return the monies Cartinhour had contributed, despite multiple demands
from Cartinhour and his attorneys. (Id. ¶¶ 30-32.) Based on these allegations, Cartinhour
countersued for accounting, fraud, breach of fiduciary duty, breach of partnership agreement,
legal malpractice, negligent misrepresentation, conversion, and derivative action. (Id. ¶¶ 34-81.)
Shortly after Cartinhour filed his answer and counter-complaint, the Court scheduled an
Initial Scheduling Conference. Prior to the conference Robertson filed a motion to dismiss and a
motion for summary judgment.3 In his motions, Robertson argued that all of Cartinhour’s claims
were barred by the April 7, 2006 Indemnification Agreement.4 (Pl.’s Mem. of P. & A. in Supp.
3
Robertson moved to file both of his motions under seal, as he claimed the business agreement
attached to the motions required the parties to maintain the confidentiality of any partnership
documents. (Pl.’s Mem. of P. & A. in Supp. of His Mot. for Leave to File His Mot. to Dismiss
Under Seal at 1.) The Court found that the documents contained no proprietary information or
trade secrets and that there was a “public interest” in the proceedings. (Dec. 15, 2009 Tr. at
11:17-25.) Although the Court allowed plaintiff the opportunity to identify information in the
agreements he believed was proprietary, plaintiff did not do so, and Robertson’s motions for
leave to file his motions under seal were denied. (Id.)
4
The Indemnification Agreement, which was signed one year after the Liu case was dismissed
by the district court, three days before Cartinhour contributed the last $1,500,000.00 to the
partnership, and one month before the Second Circuit affirmed the dismissal of Liu (Counter-
Compl. ¶¶ 16-18, 21), purports to “release, acquit, and forever discharge Wade A. Robertson
personally” from
any and all past, present and future claims, counterclaims,
demands, actions, causes of action, liabilities, damages, costs, loss
3
of his Mot. to Dismiss [“Dismissal Mem.”] at 18-19.) Robertson also argued that Cartinhour’s
claims of fraud were barred by the statute of limitations and could therefore not serve as a basis
to nullify the Indemnification Agreement. (Pl.’s Mem. of P. & A. in Supp. of his Mot. for
Summ. J. at 17.) He contended that Cartinhour, despite his age and not being a lawyer, should
have “exercised reasonable diligence in staying abreast of the class-action litigation” and if he
had done so, he would have become aware of his fraud claim at an earlier date. (Id. at 18.)
In addition to the Indemnification Agreement, Robertson attached to his motions a
business agreement, an April 2006 partnership agreement,5 and an attestation of no attorney-
client relationship, signed by Cartinhour on April 7, 2006, and stating that Cartinhour “ha[s] no
claims against Wade A. Robertson of any kind with respect to him in his profession as an
attorney or that could arise from any attorney-client relationship, whether actual or mistakenly
of services, expenses, compensation, third-party actions, suits at
law or in equity, of every nature and description, whether known
or unknown, suspected or unsuspected, foreseen, or unforeseen,
real or imaginary, actual or potential, and whether arising at law or
in equity, under the common law, state or federal law, or any other
law, or otherwise, including, but not limited to, any claims that
have been or might have been asserted as a result of any
relationship[.]
(Dismissal Mem., Ex. 3.)
5
The partnership agreement indicates that Cartinhour contributed 99.9 percent of the
partnership’s $3,503,500.00 in capital. (Dec. 6, 2009 Aff. of Wade Robertson [“Dec. 6, 2009
Robertson Aff.”], Ex. 2 at 5.) It also states that Robertson has “exclusive” authority to manage
the business of the Partnership and may take any legal action he deems necessary. (Id. at 6.)
Cartinhour has no control over the partnership and no authority to act on its behalf. (Id.) The
agreement also allows loans to individual partners from the partnership in any amount and does
not require repayment until liquidation of the partnership or Robertson’s buyout of other
partners. (Id. at 11-12.) Liquidation can occur only by agreement of all the partners. (Id. at 11.)
Although the original agreement required that operating and financial statements be provided to
all partners on a regular basis, these provisions were removed from the agreement in 2005. (Id.
at 23; see also Dismissal Mem. at 21-22 (“There is in fact no obligation on the part of the
Partnership to provide an accounting of the funds.”).)
4
assumed, or otherwise.” (Dec. 6, 2009 Robertson Aff., Ex. 4.) The attestation further states that
“no exchange of any information, documents, or anything whatsoever between [Robertson and
Cartinhour] establishes in any way any attorney-client relationship between [Robertson and
Cartinhour.]” (Id.)
On December 15, 2009, the Court held an initial scheduling conference. Neither of the
parties attended the hearing, though both were represented by counsel. (Dec. 15, 2009 Tr. at 3:6-
16.) In response to the Court’s inquiry, Cartinhour’s counsel explained that his client had
inherited his money, spent “most of his time in his house,” and “has certain social phobias.” (Id.
at 8:3-6.) The Court was also informed that a complaint against Robertson had been filed by
Cartinhour with D.C. Bar Counsel. (Id. at 5:18-6:1.) When asked about the whereabouts of the
$3,500,000.00, Robertson’s counsel stated that there was “no evidence that the money ha[d] been
spent,” but he provided no further information about the status of the funds. (Id. at 10:4-5.)6
Based on these facts, the Court expressed concern regarding the unconscionability of the
agreements entered into by Cartinhour and the substantial risk that Cartinhour, who is now 82
years old, would never recover any of his $3,500,000.00. The Court sua sponte imposed an
order freezing the money Cartinhour had contributed to the partnership and any assets obtained
with those funds (id. at 10:6-10, 10:24-11:11; Dec. 16, 2010 Order) and ordered Robertson to file
6
When asked about the nature of Robertson’s role in the Liu case since Robertson had never
entered his appearance in that litigation, Robertson’s counsel indicated that he believed that
Robertson had been “deeply involved in [the] litigation and coordinating with several of the
other attorneys” and “drafting motions, drafting pleadings and my understanding representing
clients.” (Dec. 15, 2009 Tr. at 4:25-5:5.) As subsequently explained by Robertson, he did not
enter his appearance in the Liu case because he “had at one point been an employee for one of
the defendants [i.e., Credit Suisse] in the case” and he feared that the defendant “might somehow
create this side show that might detract” from plaintiffs’ case had Robertson’s name appeared as
an attorney. (Jan. 11, 2010 Tr. at 16:5-9.)
5
an accounting as to how the partnership funds had been spent and a description of the work, if
any, he had done on the Liu case. (Id. at 11:9-11, 13:21-25; Dec. 15, 2009 Order.)
Following this hearing, Cartinhour filed his oppositions to the motions to dismiss and for
summary judgment, attaching his affidavit and correspondence from Robertson regarding legal
services that he had rendered to Cartinhour and a $40,000 check from Cartinhour to Robertson
for that work. Cartinhour raised a host of disputed issues of fact regarding the circumstances
surrounding his various agreements with Robertson. Thereafter, Robertson filed a motion for
reconsideration of the Court’s order enjoining him from spending or transferring the money that
Cartinhour had contributed to the partnership. In addition, on January 4, 2010, Robertson filed
an affidavit with accompanying documentation regarding the hours he had worked on behalf of
the partnership. The sparse “breakdown” of Robertson’s time stated that between September
2004 and February 2008, he had billed 7,714 hours to the Liu case. (Jan. 4, 2010 Aff. of Wade
Robertson, Ex. A at 1.) That total included 3,297 hours billed in 2005, over 5,600 hours billed
after the case was dismissed by the district court, and over 2,600 hours billed after the case was
dismissed by the Second Circuit Court of Appeals. (Id., Ex. A at 2-60.) The financial
information provided by Robertson did not give any accounting as to how the $3,500,000.00 had
been spent except to show that the partnership had only $4,541.00 left in cash and that loans had
been made from the partnership to Robertson in the amount of $3,405,000.00. (Id., Ex. B at 4.)
As was learned at a subsequent hearing, these loans were taken by Robertson from the
partnership in 2005 and 2007. (Feb. 22, 2010 Aff. of William C. Cartinhour ¶ 11.) A
promissory note recording the 2005 loan indicates that Robertson borrowed $1,970.000.00 on
April 18, 2005, coming due on or before January 1, 2030. (Id.) The second loan, taken by
Robertson in 2007, was for $1,435,000.00 and not due until January 1, 2040. (Id.)
6
On January 11, 2010, the Court held a second hearing at which Robertson, his attorneys,
and attorneys for Cartinhour were present. (Jan. 11, 2010 Tr. at 3:4-9.) After hearing argument
on Robertson’s motions to dismiss and for summary judgment (id. at 3:10-6:6), the Court denied
the motions on the grounds that there were “issues of fact” in dispute and that the facts as set
forth by Cartinhour would support a finding that the agreements that Cartinhour had signed were
unconscionable and/or the product of fraud and that Robertson, as either a partner or an attorney,
had breached his fiduciary duty to Cartinhour, who had good reason to view Robertson as his
lawyer, irrespective of the attestation he had signed on April 7, 2006. (Id. at 6:7-7:16.)
Turning to the pending motion to reconsider the freezing order, the Court indicated that it
planned to hold a preliminary injunction hearing pursuant to Fed. R. Civ. P. 65, but that
Cartinhour was entitled to discovery regarding the status of the partnership funds and
Robertson’s assets and to an evidentiary hearing if the parties did not agree to a freezing order.7
(Id. at 45:23-47:1.) After consulting with his client (id. at 49:11-14), Robertson’s counsel
indicated that an agreement had been reached that they “would work together to verify the
remaining assets that Mr. Robertson has and get them into some form from Citibank or some
format that is going to be acceptable to counsel for Mr. Cartinhour.” (Id. at 50:4-7.)
Cartinhour’s counsel agreed, stating that the parties would talk about how to “get the bank
discovery done” and requested a further status conference with the Court to decide what future
proceedings would be needed. (Id. at 50:10-15.) In view of this agreement, the Court indicated
that it would hold Robertson’s motion for reconsideration in abeyance and ordered the parties to
7
By this time, Cartinhour’s counsel had already issued subpoenas to Citibank in Maryland for
the partnership records, but Robertson had moved to quash them in the District Court for the
District of Maryland. (Id. at 43:10-18). In addition, as was subsequently learned, after
Robertson’s motion was denied, Robertson appealed the order to the Fourth Circuit.
(Supplemental Mem. in Supp. of Cartinhour’s Emergency Mot. for TRO and PI at 2 n.1.)
7
propose a discovery schedule and to inform the Court if an evidentiary hearing would be
necessary by noon the next day. (Id. at 51:5-11, 52:6-10.)
The next day, Cartinhour filed an emergency motion for a temporary restraining order
(“TRO”) and a PI to prevent Robertson from contacting him outside the presence of his counsel.
(Mem. of P. & A. in Supp. of Def.’s Emergency Mot. for TRO and Prelim. Inj. To Bar Wade
Robertson From Contacting William C. Cartinhour Without the Presence of Counsel at 5-6.)
Cartinhour alleged that Robertson went to his place of residence after the January 11 hearing in
an attempt to settle the case and spoke to Cartinhour extensively outside the presence of his
counsel. (Id. at 2-3.) Cartinhour further alleged that he had not spoken to his attorneys about the
proceedings on January 11 when Robertson arrived at his apartment and that Robertson had told
him that if he did not settle his claims, the litigation “would be prolonged and costly.” (Id. at 3;
see also id., Ex. 3 [“Jan. 12, 2010 Cartinhour Aff.”] ¶¶ 2-7.) The Court scheduled an immediate
conference call with counsel for the parties, during which the Court asked if a hearing would be
required to decide Cartinhour’s motion or if Robertson would agree to a stay-away order.
Counsel for Robertson indicated that he would speak with his client and let the Court and
Cartinhour know whether a hearing would be needed. The Court issued a minute order,
scheduling a conference call for the next day, for this purpose and setting a hearing on the
motion for January 14, 2010, at 11:00 a.m.
During the January 13 conference call, counsel for Cartinhour stated that after the
January 12 conference call and after Cartinhour had filed the motion seeking a stay-away order,
Robertson again went to Cartinhour’s residence and attempted to speak with him through the
door, although Cartinhour refused to allow Robertson into his apartment. Despite this conduct,
counsel for Robertson indicated that his client would consent to a TRO and a PI enjoining him
8
from contacting Cartinhour without prior written agreement or the presence of Cartinhour’s
counsel. A consent order was entered by the Court on January 15, 2010. (See Dkt. No. 38.)
The parties next spoke with the Court on January 14 and asked it to refer the case to a
magistrate judge for mediation. The parties also requested time to conduct limited discovery
regarding the partnership assets and Robertson’s assets before meeting for settlement
discussions. Despite Robertson’s agreement to voluntarily engage in discovery regarding the
whereabouts of the partnership assets, he next moved on February 4 to quash Cartinhour’s
January 20, 2010 subpoena for Robertson’s account at Charles Schwab. (Pl.’s Mem. of P. & A.
in Supp. of His Mot. to Quash at 1, Attach. A at 1, 6.) Robertson argued that his personal
banking records were irrelevant to Cartinhour’s claims, even though that was the account into
which the partnership funds had been transferred. (Id. at 3.) The Court denied Robertson’s
motion to quash on February 5, 2010. Later that day, Cartinhour filed a motion for leave to
amend his counter-complaint to add four additional claims based on disclosures made by
Robertson at the January 11, 2010 hearing.8
One week later, Robertson, again in contravention of his professed desire to resolve this
matter, filed notice of two interlocutory appeals, appealing from the Court’s denials of his
motions to dismiss and for summary judgment, the December 16, 2010 freeze order, and the
order holding in abeyance Robertson’s motion to reconsider that order. Less than a week later,
Robertson filed notice of a third interlocutory appeal, this time from the Court’s denial of his
motion to quash. See also note 7, supra.
8
The claims Cartinhour sought to add are: Rescission, Dissolution of W.A.R. LLP/Appointment
of Receiver, Constructive Trust over assets diverted by Robertson, and Declaratory Judgment
that the agreements signed by Cartinhour are unenforceable. (Mem. of P. & A. In Supp. of Mot.
for Leave to Amend Counter Compl. at 2.)
9
On February 18, Robertson also filed an opposition to Cartinhour’s motion for leave to
amend his complaint, claiming that Cartinhour’s proposed claims were duplicative and would
prejudice Robertson by causing him to incur additional litigation costs. The Court granted
Cartinhour’s motion for leave to amend on February 22, 2010. (Feb. 22, 2010 Order.) That
same day, Cartinhour filed an amended answer, as well as two emergency motions based on
information he had learned from production of Robertson’s Charles Schwab account
information. The first motion sought a TRO and a PI freezing Robertson’s assets to prevent
dissipation of Cartinhour’s financial contribution to the partnership. The second motion sought
to hold Robertson in contempt of Court for violating the Court’s December 16, 2009 freeze order
based on the fact that on January 8, 2010, Robertson had authorized checks totaling nearly
$80,000 to be drawn from his Schwab account and made payable to Apley, Inc. and Diba Group,
Inc. (Def./Counter-Pl.’s Emergency Mot. for Contempt ¶ 5). Apley Inc. was a registered
corporation in Tennessee, Robertson’s claimed state of residence (Compl. ¶ 5), that had been
dissolved in May 2008. Tennessee Dep’t. of State Entity Detail: Apley, Inc.,
http://tnbear.tn.gov/ECommerce/Common/FilingDetail.aspx?FilingNum=000396425 (last visited
March 5, 2010). Both the check to Apley, Inc. and the check to Diba Group, Inc., a corporation
registered in New York, were to be picked up by Wade Robertson at a local branch of Charles
Schwab in Menlo Park, California. (Id., Ex. B at 2, 4.) Robertson had also authorized the
transfer of $30,000 from the Schwab account into a separate Citibank account that he controlled.
(Id. ¶ 6.)
In response to Cartinhour’s filings, Robertson continued his barrage of motions, asking
the Court to reconsider or vacate its order granting leave to file an amended complaint on the
grounds that the Court lacks jurisdiction to rule on the motion for leave to amend because
10
Robertson’s appeal from the Court’s denial of his motions to dismiss and for summary judgment
divested the Court of jurisdiction. (Mem. of P. & A. in Supp. of Pl.’s Mot. to Reconsider and/or
Vacate [“Reconsider Mem.”] at 1-2.)
The next morning, Robertson filed a motion for recusal pursuant to 28 U.S.C. § 144.
(Mem. of P. & A. in Supp. of Pl.’s Mot. to Recuse Per 28 U.S.C. § 144 [“Recusal Mem.”] at 2.)
The Court then set a hearing on the outstanding motions for March 1, 2010. (Feb. 23, 2010
Minute Order.) Two days later, Robertson filed yet another motion seeking to vacate the order
setting the March 1 hearing and to stay all further proceedings on the grounds that the Court
lacked authority to proceed in light of his motion for recusal and the three pending interlocutory
appeals he filed. (Pl.’s Mem. of P. & A. in Supp. of His Emergency Mot. to Strike or Vacate &
to Stay All Further Proceedings [“Stay Mem.”] at 1.)
A hearing was held on March 1, 2010, on Cartinhour’s motions for a TRO/PI and to hold
Robertson in contempt, as well as Robertson’s motion for reconsideration of the freezing order.
The parties resolved Cartinhour’s motion for a PI by agreeing to the entry of a new 20-day
freezing order that provided that Robertson and those acting on his behalf are enjoined from
spending, transferring, or otherwise using any of the funds that might have originated from the
partnership account. (March 1, 2010 Consent PI at 1-2.) The PI also provided that Robertson
would withdraw his appeals from the orders denying his motions to quash in D.C. and in
Maryland. (Id. at 3.) In light of this new PI, the Court denied Robertson’s motion for
reconsideration as moot, for it vacated its earlier freezing order. The parties again expressed a
desire to settle the case and agreed to conduct limited discovery as to Robertson’s assets.
Accordingly, the Court continued the hearing until March 22, 2010 (id.), but indicated that it
11
would issue this written opinion to set forth its rationale for denying Robertson’s motions for a
recusal, a stay, and the vacation of certain court orders.
ANALYSIS
I. JURISDICTION OF THE DISTRICT COURT UPON NOTICE OF APPEAL
A. Legal Standard
It is well-settled that “[t]he filing of a notice of appeal . . . ‘confers jurisdiction on the
court of appeals and divests the district court of control over those aspects of the case involved in
the appeal.’” United States v. DeFries, 129 F.3d 1293, 1302 (D.C. Cir. 1997) (quoting Griggs v.
Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (per curiam)). However, courts have
“carved out a few narrow exceptions to this rule, such as where [a party] frivolously appeals . . .
or takes an interlocutory appeal from a non-appealable order.” Id. at 1302-03 (internal citations
omitted); McKesson HBOC, Inc. v. Islamic Republic of Iran, 315 F. Supp. 2d 63, 66 (D.D.C.
2004) (“[A] notice of appeal from an unappealable order does not divest the district court of
jurisdiction.”). Accordingly, “[i]nstead of allowing [a party] to willy-nilly deprive [a] Court of
jurisdiction, thus bringing . . . proceedings to a standstill while a non-appealable ruling wends its
way through the appellate process, the Court [may] disregard the notice of appeal from a non-
appealable order and proceed with the case.” Hammon v. Barry, 752 F. Supp. 1087, 1092
(D.D.C. 1990) (internal citations and quotation marks omitted); see also Ruby v. Sec’y of the
United States Navy, 365 F.2d 385, 389 (9th Cir. 1966) (“Where the deficiency in a notice of
appeal, by reason of untimeliness, lack of essential recitals, or reference to a non-appealable
order, is clear to the district court, it may disregard the purported notice of appeal and proceed
with the case, knowing that it has not been deprived of jurisdiction.”).
12
Under 28 U.S.C. § 1291, “all final decisions” of the district court are appealable. The
D.C. Circuit has construed the final judgment rule strictly, noting that “a district court’s decision
is ordinarily not final until it ‘ends the litigation on the merits and leaves nothing for the court to
do but execute the judgment.’” Banks v. Office of Senate Sergeant-At-Arms and Doorkeeper of
the United States Senate, 471 F.3d 1341, 1345 (D.C. Cir. 2006) (quoting In re Sealed Case
(Medical Records), 381 F.3d 1205, 1209 (D.C. Cir. 2004)). One exception to the final order rule
is found in 28 U.S.C. § 1292, which grants a court of appeals jurisdiction over certain
interlocutory appeals. 28 U.S.C. § 1292(a)-(b). Under § 1292(a)(1), courts of appeals have
jurisdiction from orders granting or otherwise relating to injunctions. § 1292(a)(1).
Additionally, under § 1292(b), a district court judge may certify that “an order ‘involves a
controlling question of law as to which there is substantial ground for difference of opinion’ and
further finds ‘that an immediate appeal from the order may materially advance the ultimate
termination of the litigation.’” Banks, 471 F.3d at 1345 (quoting 28 U.S.C. 1292(b)). However,
if a party files an appeal upon such certification, “[t]hat application for an appeal hereunder shall
not stay proceedings in the district court unless the district judge or the Court of Appeals or a
judge thereof shall so order.” 28 U.S.C. § 1292(b).
In Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47 (1949), the Supreme
Court construed the final order rule to provide for appellate jurisdiction where there “is a final
disposition of a claimed right which is not an ingredient of the cause of action and does not
require consideration with it.” Id. For an order to come within the Cohen doctrine, it must
conclusively determine the disputed question, resolve an important issue completely separate
from the merits of the action, and be effectively unreviewable on appeal from a final judgment.
Oscarson v. Office of Senate Sergeant at Arms, 550 F.3d 1, 2 (D.C. Cir. 2008). As the Supreme
13
Court has recognized, the collateral order doctrine is of a “modest scope” and is “narrow and
selective in its membership.” Will v. Hallock, 546 U.S. 345, 350 (2006).
B. Robertson’s Motion to Reconsider
In his motion asking the Court to reconsider or vacate its February 22, 2010 Order
granting Cartinhour leave to amend his counter-complaint, Robertson argues that his
interlocutory appeal from the Court’s order denying his motions to dismiss and for summary
judgment divests the Court of its jurisdiction to decide any issue regarding the pleadings in this
case. (Reconsider Mem. at 2.) This argument lacks merit, since it is well-settled that neither a
denial of a motion for summary judgment nor a denial of a motion to dismiss are considered
“final orders” that are appealable under § 1291. See Bombardier Corp. v. Nat'l R.R. Passenger
Corp., 333 F.3d 250, 253 (D.C. Cir. 2003) (“Ordinarily, orders denying motions to dismiss are
not final decisions because such orders ensure that litigation will continue in the district court.”);
Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 296 (D.C. Cir. 2006) (“[A]s a
general rule, we lack jurisdiction to hear an appeal of a district court’s denial of summary
judgment, partial or otherwise.”). And although courts have allowed interlocutory appeals under
the collateral order doctrine from denials of motions to dismiss or for summary judgment where
certain immunity defenses are invoked, see Oscarson, 550 F.3d at 2, no such defense has been
raised here. Indeed, in denying Robertson’s motions because the prevalence of disputed factual
issues prevented it from granting them (see Jan. 11, 2010 Tr. at 7:5-8:14), the Court has not
“conclusively determined [a] disputed question,” Oscarson, 550 F.3d at 2, but has left such
determination for a future date. The Court’s denials are also intimately related to the merits of
the action. Accordingly, the collateral order doctrine does not apply to the Court’s Order of
14
January 11, 2010, and therefore the Court retained jurisdiction to grant Cartinhour leave to
amend his counter-complaint.9
C. Robertson’s Motion to Stay
In his motion seeking to vacate the Court’s Order of February 23, 2010, and to stay all
proceedings, Robertson again argues that the Court does not have jurisdiction to proceed with the
case because of his multiple interlocutory appeals.10 (Stay Mem. at 5.) As discussed supra, he
cannot file an interlocutory appeal of the order denying his motions to dismiss and for summary
judgment. Robertson’s two other appeals are from similarly non-appealable orders. On
February 18, 2010, Robertson appealed from the denial of his motion to quash in violation of the
well-established rule that “[t]he denial of a motion to quash a subpoena is not . . . a final decision
[for purposes of 28 U.S.C. 1291].” In re Sealed Case, 655 F.2d 1298, 1300 (D.C. Cir. 1981). As
such, Robertson’s appeal does not deprive the Court of jurisdiction to proceed. See McKesson,
315 F. Supp. 2d at 66.
Robertson’s third appeal is from the Court’s orders freezing Cartinhour’s contributions to
the partnership and holding in abeyance Robertson’s motion to reconsider that freeze order. As
discussed, 28 U.S.C. § 1292(a) provides appellate jurisdiction over appeals from orders
9
None of the cases cited by Robertson in his motion for reconsideration provides any support for
the argument that his appeal from garden-variety denials of summary judgment and dismissal fall
within the collateral order doctrine. (See Reconsider Mem. at 2-3.) All of the cases he cites
concern motions to dismiss that have been granted, see Green Leaf Nursery v. E.I. DuPont De
Nemours and Co., 341 F.3d 1292, 1298-99 (11th Cir. 2003); Davis v. United States, 667 F.2d
822, 825 (9th Cir. 1982); Hernandez v. Coughlin, 18 F.3d 133, 134 (2d Cir. 1994); denials of
motions to dismiss on qualified immunity grounds, see May v. Sheahan, 226 F.3d 876, 878 (7th
Cir. 2000); or denials of motions to dismiss where a district court has certified the denial for
interlocutory appeal. See Dayton Indep. Sch. Dist. v. U.S. Mineral Prods. Co., 906 F.2d 1059,
1063-64 (5th Cir. 1990). None of these cases has any relevance to Robertson’s interlocutory
appeal.
10
Robertson also argues that the Court does not have authority to proceed in light of his motion
for recusal. (Stay Mem. at 4-5.) Because the Court finds that Robertson’s motion is legally
insufficient to require recusal, this argument is now moot.
15
concerning injunctions, such as Robertson’s appeal from the Court’s freeze order. However,
Robertson filed a motion to reconsider that injunction on December 28, 2009, which the Court
held in abeyance. Under Rule of Appellate Procedure 4, a notice of appeal filed after the
announcement of an order but before the Court disposes of a motion to reconsider that order
becomes effective to appeal the order only when the motion to reconsider is disposed of. Fed. R.
App. P. 4(a)(4)(B)(i); see also SEC v. Bilzerian, No. 02-5061, 2002 WL 1998001, at *1 (D.C.
Cir. Aug. 29, 2002) (holding in abeyance appeal from orders where district court had not yet
decided motion for reconsideration). Thus, Robertson’s appeal from the December 16, 2009
Order is not “effective” and does not divest the Court of jurisdiction.11
II. RECUSAL PURSUANT TO 28 U.S.C. § 144A. Legal Standard
To recuse a judge under 28 U.S.C. § 144, a litigant must submit, along with its motion, an
affidavit stating “the facts and the reasons for [its] belief that bias or prejudice exists.” 28 U.S.C.
§ 144. Section 144 “is mandatory and automatic, requiring only a timely and sufficient affidavit
alleging personal bias or prejudice of the judge.” Bhd. Of Locomotive Firemen and Enginemen
v. Bangor & Aroostook R.R. Co., 380 F. 2d 570, 576 (D.C. Cir. 1967). However, the mere fact
that a party has filed a § 144 motion, accompanied by the requisite affidavit and certificate of
counsel, does not automatically result in the challenged judge’s disqualification. United States v.
Miller, 355 F. Supp. 2d 404, 405 (D.D.C. 2005). Rather, the statute only requires recusal upon
the filing of a “timely and sufficient affidavit.” 28 U.S.C. § 144. And, “[i]t is well settled that
the involved judge has the prerogative, if indeed not the duty, of passing on the legal sufficiency
11
Robertson’s third appeal was also from the Court’s order holding his motion for
reconsideration in abeyance. Clearly, this order was not a “final decision” within the meaning of
§ 1291 and is therefore non-appealable.
16
of a Section 144 challenge.” United States v. Haldeman, 559 F.2d 31, 131 (D.C. Cir. 1976); see
also United States v. Mitchell, 377 F. Supp. 1312, 1315 (D.D.C. 1974) (“Only the individual
judge knows fully h[er] own thoughts and feelings and the complete context of facts alleged. It
follows that only [s]he can be certain of the most equitable resolution.”). Robertson’s motion
therefore is properly before the undersigned. 12
“[T]he judge, in deciding whether to grant [a] recusal motion [pursuant to § 144], must
accept the affidavit’s factual allegations as true even if the judge knows them to be false.” SEC
v. Loving Spirit Found., Inc., 392 F.3d 486, 496 (D.C. Cir. 2004). However, the affidavit “must
state facts as opposed to conclusions, and while the information and belief of the affiant as to the
truth of the allegations are sufficient, mere rumors and gossip are not enough.” United States v.
Hanrahan, 248 F. Supp. 471, 474 (D.D.C. 1965) (internal citations omitted). “The identifying
facts of time, place, persons, occasion and circumstances must be set forth, with at least that
degree of particularity one would expect to find in a bill of particulars.” Id. (internal citations
omitted). Once it is established that the facts in the affidavit are stated with sufficient
particularity,
it must then be ascertained whether these facts would fairly
convince a sane and reasonable mind that the judge does in fact
harbor the personal bias or prejudice contemplated by the statute.
It is well established that the facts must give fair support to the
charge of a bent mind that may prevent or impede impartiality.
The basis of the disqualification is that personal bias or prejudice
exists, by reason of which the judge is unable to impartially
exercise his functions in the particular case. The factual
allegations must establish by more than a prima facie case, but not
beyond a reasonable doubt, that the mind of the judge is closed to
12
To the extent Robertson’s motion for recusal also invokes 28 U.S.C. § 455 (see Recusal Mem.
at 2), that statute “imposes a duty directly upon the judge to evaluate h[er] own conduct.” United
States v. Heldt, 668 F.2d 1238, 1271 (D.C. Cir. 1981); see also Clay v. Brown, Hopkins &
Stambaugh, 892 F. Supp 11, 13 (D.D.C. 1995) (“The case law interpreting [§ 455] requires that
the movant first present a motion for recusal to the judge whose impartiality is at issue.”).
17
justice; that the judge has a personal bias or prejudice against the
affiant which is of such a nature, and of such intensity, that it
would render the judge unable to give the affiant the fair trial to
which every litigant is entitled. Obviously, such a showing could
rarely be made.
Id. at 475-76 (internal citations and quotations omitted). Importantly, to be disqualifying, the
alleged bias usually “must stem from an extrajudicial source and result in an opinion on the
merits on some basis other than what the judge learned from his participation in the case.”
United States v. Grinnell Corp., 384 U.S. 563, 583 (1966); see also Liteky v. United States, 510
U.S. 540, 554 (1994) (predispositions developed during proceedings are rarely sufficient).
Generally speaking, a judge’s bias is not “personal” if none of the attitudes cited in the affidavit
“developed from sources other than court proceedings or evidence in the case.” Mitchell, 377 F.
Supp. at 1317; see also Tynan v. United States, 376 F.2d 761, 764-65 (D.C. Cir. 1967) (noting
distinction between judicial determination derived from evidence and proceedings before court
and one based on attitudes and conceptions originating elsewhere).
Under 28 U.S.C. § 455, which does not require a party to file an affidavit, a judge must
recuse herself if the average citizen could reasonably question the judge’s impartiality. Heldt,
668 F.2d at 1271; see also 28 U.S.C. § 455(a)-(b) (requiring recusal if judge’s “impartiality
might reasonably be questioned” or if judge “has personal bias or prejudice concerning a party”).
However, under this statute, the Court need not “accept[] as true” the facts alleged by a party in
its papers. Heldt, 668 F.2d at 1271. “[T]he Court must begin its analysis of the allegations
supporting . . . a request [for recusal under § 455] with a presumption against disqualification.”
Cobell v. Norton, 237 F. Supp. 2d 71, 78 (D.D.C. 2003). As for what constitutes bias, the
Supreme Court has held that
opinions formed by the judge on the basis of facts introduced or
events occurring in the course of the current proceedings, or of
18
prior proceedings, do not constitute a basis for a bias or partiality
motion unless they display a deep-seated favoritism or antagonism
that would make fair judgment impossible. Thus, judicial remarks
during the course of a trial that are critical or disapproving of, or
even hostile to, counsel, the parties, or their cases, ordinarily do
not support a bias or partiality challenge.
Liteky, 510 U.S. at 555 (citation omitted) (emphasis added). Indeed, “[t]o be disqualifying, the
court’s bias and prejudice ‘must stem from an extrajudicial source and result in an opinion on the
merits on some basis other than what the judge learned from his participation in the case.’”
United States v. Barry, 938 F.2d 1327, 1340 (D.C. Cir. 1991) (quoting Grinnell, 384 U.S. at
583).
Recusal is not required under section 455(a) where statements are “not sufficient to raise
the appearance of prejudice in the mind of a reasonable person who is familiar with all the facts.”
United States v. Barry, 961 F.2d 260, 263 (D.C. Cir. 1992). A motion to disqualify should not be
granted lightly or where it lacks factual support. Murchison v. Inter-City Mortg. Corp. Profit
Sharing & Pension Plans, 503 F. Supp. 2d 184, 188 (D.D.C. 2007). Moreover, the
test [of objectivity in §455] should not be used by judges to avoid
sitting on difficult or controversial cases. . . . [I]n assessing the
reasonableness of a challenge to his impartiality, each judge must
be alert to avoid the possibility that those who would question his
impartiality are in fact seeking to avoid the consequences of his
expected adverse decision. Disqualification for lack of impartiality
must have a reasonable basis.
Haldeman, 559 F.2d at 139 n.360; see also United States v. Marin, 662 F. Supp. 2d 155, 158
(D.D.C. 2009) (“A judge need not, however, ‘recuse himself because of unsupported, irrational,
or highly tenuous speculation.’”) (quoting United States v. DeTemple, 162 F.3d 279, 287 (4th
Cir.1998) (citation and internal quotation marks omitted)).
19
B. Robertson’s Recusal Motion
The facts supporting Robertson’s recusal motion are contained in the affidavit of Wade
Robertson attached thereto. (Recusal Mem. at 2; Pl. Wade Robertson’s 28 U.S.C. § 144 Aff. of
Bias [“Feb. 23, 2010 Robertson Aff.”].) The vast majority of Robertson’s affidavit describes the
Court’s comments and rulings during the December 15, 2009 hearing. (Feb. 23, 2010 Robertson
Aff. ¶¶ 20-36.) Robertson also argues “[o]n information and belief” that sometime between
August and December 2009, the undersigned reviewed information that was not part of the
record or engaged in ex parte communications with Cartinhour or his attorneys that were not
made part of the record.13 (Id. ¶ 10.)
Taking these allegations as true, which it must, the Court finds Robertson’s affidavit
insufficient to require disqualification under § 144 or § 455. While the Court acknowledges that
it may have used intemperate language during the December 15, 2009 hearing, it was
(justifiably, as it turns out) troubled by the documents, allegations, and other information before
it, as well as the seeming inability of Robertson’s counsel to answer even basic questions, despite
having filed two dispositive motions. However, as noted above, any “adverse attitudes” evinced
toward Robertson were based only on the Court’s consideration of issues raised by Robertson in
his motions and do not qualify as the kind of prejudice or bias requiring recusal. See Grinnell,
384 U.S. at 583; see also Liteky, 510 U.S. at 556 (“expressions of impatience, dissatisfaction,
annoyance, and even anger” do not establish bias or partiality requiring recusal). As for the
Court’s rulings during that December hearing, the Supreme Court has observed that “judicial
13
As indicated on the record at the hearing on March 1, 2010, the Court never had any ex parte
communications with Cartinhour or his attorneys nor was it privy to any nonpublic information
regarding the background of this litigation.
20
rulings alone almost never constitute a valid basis for a bias or partiality motion.” Liteky, 510
U.S. at 555.
Beyond a recitation of the Court’s statements and rulings from that hearing, Robertson’s
affidavit is nothing more than a list of non-specific and conclusory allegations. There are no
identifying “facts of time, place, persons, occasion and circumstances,” Hanrahan, 248 F. Supp.
at 474, and Robertson merely guesses at what actions the Court may have taken during a nearly
three-month window prior to the December 15, 2009 hearing. (Feb. 23, 2010 Robertson Aff. ¶
10.) Nothing about the affidavit, save the recitation of the Court’s statements on December 15,
2009, is “definite.” See Miller, 355 F. Supp. 2d at 406 (denying motion to recuse where affidavit
was “not definite” and “offer[ed] no specifics”). Robertson’s claims that the undersigned
“developed a personal bias” and “pre-judged the facts” are simply conclusory generalities,
insufficient to demonstrate bias or prejudice requiring disqualification. Bhd. Of Locomotive
Firemen and Enginemen, 380 F.2d at 577 (§ 144 affidavit “must allege specific facts and not
mere conclusions or generalities”). Accordingly, the Court denies Robertson’s motion for
recusal.
CONCLUSION
For the foregoing reasons, the Court denies Robertson’s motion for reconsideration, his
motion to stay the proceedings, and his motion for recusal.
/s/
ELLEN SEGAL HUVELLE
United States District Judge
DATE: March 5, 2010
21