Meso Scale Diagnostics, LLC v. Roche Diagnostics GMBH

IN THE SUPREME COURT OF THE STATE OF DELAWARE
MESO SCALE DIAGNOSTICS, §
LLC., et al., §
§ No. 200, 2020
Plaintiffs Below, §
Appellants, §
§ Court Below: Court of Chancery
v. § of the State of Delaware
§
ROCHE DIAGNOSTICS GMBH, §
et al., § C.A. No. 2019-0167
§
Defendants Below, §
Appellees. §
Submitted: December 9, 2020
Decided: February 8, 2021
Before VALIHURA, VAUGHN, TRAYNOR, MONTGOMERY-REEVES, Justices
and RANJI, Judge,* constituting the Court en Banc.
Upon appeal from the Court of Chancery of the State of Delaware. AFFIRMED.
David L. Finger, Esquire, Finger & Slanina, Wilmington, Delaware, William S. Consovoy,
Esquire, J. Michael Connolly, Esquire (argued), Consovoy McCarthy PLLC, Arlington,
Virginia, Patrick Strawbridge, Esquire, Consovoy McCarthy PLLC, Boston,
Massachusetts for Appellants.
Matthew E. Fischer, Esquire, Timothy R. Dudderar, Esquire, J. Matthew Belger, Esquire,
Andrew H. Sauder, Esquire, Potter Anderson & Corroon LLP, Wilmington, Delaware; Of
Counsel Thomas L. Shriner, Jr., Esquire (argued), James T. McKeown, Esquire, Foley &
Lardner LLP, Milwaukee, Wisconsin for Appellees.
*
Sitting by designation pursuant to Del. Const. Art. IV, § 12 and Supreme Court Rules 2(a) and
4(a) to complete the quorum.
PER CURIAM:
In 2010, Appellants Meso Scale Diagnostics, LLC and Meso Scale Technologies,
LLC (collectively “Meso”) filed suit in the Court of Chancery against Appellee entities
Roche Diagnostics GmbH, Roche Diagnostics Corp., Roche Holding Ltd., IGEN LS LLC,
Lilli Acquisition Corp., IGEN International, Inc., and Bioveris Corp. (collectively
“Roche”), all of which are or were affiliates or subsidiaries of the F. Hoffmann -- La Roche,
Ltd. family of pharmaceutical and diagnostics companies. Meso alleged two counts of
breach of contract. Roche prevailed at trial, and this Court affirmed the judgment in 2014.
On February 28, 2019, Meso brought a new action asking the court to reopen the
case, vacate the judgment entered after trial, and order a new trial. Meso alleged that the
Vice Chancellor who decided its case four years earlier had an undisclosed disabling
conflict, namely, that Roche’s counsel had been simultaneously representing him in an
unrelated federal suit challenging the constitutionality of Delaware’s law providing for
confidential business arbitration in the Court of Chancery, 10 Del. C. § 349 (“Section
349”). In that federal litigation, which ended in 2014, the Chancellor and Vice Chancellors
of the Court of Chancery, as the parties responsible for implementing the challenged
statute, were nominal defendants (hereinafter, the “Judicial Officers”).
The Court of Chancery denied relief and dismissed the action. Meso appeals.
For the following reasons, we AFFIRM the judgment of the Court of Chancery.
2
I. Factual and Procedural Background
Though this case reaches us as an appeal from the dismissal of Meso’s complaint
granting Roche’s motion pursuant to Court of Chancery Rule 12(b)(6), Meso’s “complaint”
is, in effect, substantively a motion for relief from a judgment under Court of Chancery
Rule 60(b), and in particular, under subparagraphs (b)(4) and (b)(6). Meso’s request for
relief was restyled as a separate action for the convenience and at the request of the trial
court. Roche’s corresponding dismissal motion likewise presents, in effect, its opposition
to the Rule 60(b) arguments raised by Meso. The Court of Chancery treated the motion
substantially as one seeking Rule 60(b) relief.1
We take the facts as pled by Meso.2 In so doing, we defer only to those facts Meso
alleged in its pleading and the reasonable inferences therefrom.3 We otherwise rely on the
trial court’s recitation of the facts.
1
Meso Scale Diagnostics, LLC v. Roche Diagnostics GMBH et al., Del. Ch. C.A. No. 2019-0167,
at 19 (May 18, 2020) (Telephone Rulings of the Court on Defendants’ Motion to Dismiss) [Notice
of Appeal Ex. A, hereinafter, “Order”] (stating that “this isn’t a vanilla 12(b)(6) motion. Rather,
it is a motion that challenges a claim for extraordinary relief under Rule 60(b), that happens to
have been sought by complaint rather than by motion.”).
2
See generally App. to Op. Br. at A017–28 (Complaint).
3
This accords with the deference given to well-pleaded facts under Rule 12(b)(6):
Our review is limited to the well-pleaded allegations contained in the complaint.
We accept all well-pleaded allegations as true, but we ignore conclusory allegations
that lack specific supporting factual allegations. Finally, throughout our
examination of dismissals under Rule 12(b)(6), we remain heedful of our duty to
draw all reasonable inferences in favor of the non-movant. . . .
Ramunno v. Cawley, 705 A.2d 1029, 1034 (Del. 1998) (internal citations and footnotes omitted).
3
Meso sued Roche on June 22, 2010 alleging two counts of breach of contract (“Meso
Litigation”).4 Then-Attorney Andre Bouchard represented Roche in that action, while Vice
Chancellor Parsons presided over the case. On April 8, 2011, the Vice Chancellor denied
Roche’s motion to dismiss the Meso Litigation.5
On October 25, 2011 the Delaware Coalition for Open Government, Inc. (the
“Coalition”) filed suit in the United States District Court for the District of Delaware
against the State of Delaware, as well as the Court of Chancery and the Judicial Officers,
including Vice Chancellor Parsons (“DelCOG Litigation”).6
The Coalition asserted a cause of action under 42 U.S.C. § 1983, the federal civil
rights statute. It alleged no specific misconduct by Vice Chancellor Parsons. Rather, it
alleged that Section 349 deprived the Coalition of its right to public access to judicial
proceedings under the First Amendment of the United States Constitution. The Coalition
sought a declaration to that effect, as well as injunctive relief barring further arbitrations
under the statute and rules. It also sought to unseal the records of prior arbitrations
conducted pursuant to Section 349.
The Coalition’s complaint included a prayer for attorney’s fees and a residual prayer
for “such other and further relief as the Court deems fair and just.”7 Aside from this
4
App. to Op. Br. at A018 (Complaint).
5
Meso Scale Diagnostics, LLC v. Roche Diagnostics GMBH, 2011 WL 1348438, at *1 (Del. Ch.
Apr. 8, 2011).
6
See generally App. to Op. Br. at A030–34 (DelCOG Complaint).
7
Id. at A34.
4
mention of attorney’s fees, there is no other indication in the record that the Coalition
sought to recover damages, and Meso made clear that Vice Chancellor Parsons did not face
the prospect of money damages or other personal liability beyond the declaratory and
injunctive relief sought in his capacity as a judicial officer charged with implementing
Section 349.
The State retained then-Attorney Bouchard to represent it in the DelCOG Litigation
some time before November 29, 2011.8 At that time, then-Attorney Bouchard sent a letter
to the Court on behalf of all parties coordinating a briefing and oral argument schedule for
the cross-motions for judgment on the pleadings. As the letter indicates, the parties agreed
to stay discovery pending a ruling on those motions. Also copied on the letter were the
Coalition’s counsel and the counsel for the Judicial Officers, Professor Lawrence A.
Hamermesh of the Widener University - Delaware Law School.
The United States District Court for the District of Delaware held oral argument on
February 9, 2012.9 Then-Attorney Bouchard and other attorneys at his firm continued to
represent the State and the Court of Chancery. Professor Hamermesh continued to
represent the Judicial Officers. During that argument, the parties confirmed a prior
agreement that the State and the Court of Chancery should be dismissed.10 Then-Attorney
8
Id. at A036–37 (Letter from Counsel).
9
Id. at A048 (DelCOG Oral Argument Transcript).
10
Id. at A053.
5
Bouchard presented oral argument on behalf of all defendants, including Vice Chancellor
Parsons.
The District Court granted judgment in the Coalition’s favor on the cross-motions
on August 30, 2012.11 Consistent with the parties’ stipulation, the District Court dismissed
the State and Court of Chancery on Eleventh Amendment sovereign immunity grounds.12
Then-Attorney Bouchard remained counsel of record in the case, and on October 12, 2012,
he entered his appearance for the Judicial Officers, including Vice Chancellor Parsons.13
While that matter was on appeal, Vice Chancellor Parsons granted Roche summary
judgment on the first of the two breach of contract counts in the Meso Litigation on
February 22, 2013.14 He presided over a trial on the remaining count three days later, from
February 25 through March 1, 2013. 15
The United States Court of Appeals for the Third Circuit affirmed the District Court
in the DelCOG Litigation on October 23, 2013.16 Then-Attorney Bouchard was still one
of several attorneys representing the Judicial Officers at that time.17
11
Del. Coal. for Open Gov’t, Inc. v. Strine, 894 F. Supp. 2d 493, 504 (D. Del. 2012).
12
Id. at 494 n.1.
13
App. to Op. Br. at A135 (Entry of Appearance); see also id. at A141–94 (Petition for Writ of
Certiorari) (application for United States Supreme Court review in the DelCOG litigation).
14
Meso Scale Diagnostics, LLC v. Roche Diagnostics GmbH, 62 A.3d 62, 94 (Del. Ch. 2013).
15
Meso Scale Diagnostics, LLC v. Roche Diagnostics GmbH, 2014 WL 2919333, at *12 (Del. Ch.
June 25, 2014).
16
Del. Coal. for Open Gov’t v. Strine, 733 F.3d 510, 521 (3d Cir. 2013).
17
Id. at 511.
6
Thereafter, Vice Chancellor Parsons heard post-trial argument in the Meso
Litigation on November 8, 2013.18
On January 21, 2014, then-Attorney Bouchard, Professor Hamermesh, and the rest
of the defense team in the DelCOG Litigation submitted a Petition for Writ of Certiorari to
the United States Supreme Court.19 The United States Supreme Court denied certiorari on
March 24, 2014.20 The parties allege no further involvement by then-Attorney Bouchard
in the DelCOG Litigation.
On April 16, 2014, then-Attorney Bouchard sought to withdraw from representing
Meso in anticipation of his elevation to the position of Chancellor of the Court of Chancery,
while his firm continued the representation.21 The trial court approved that request, and he
withdrew on April 29, 2014.22 On June 25, 2014, Vice Chancellor Parsons issued a
decision in Roche’s favor on the remaining breach of contract count.23 This Court affirmed
the judgment on the basis of the trial court’s opinion on June 18, 2015.24 The United States
Supreme Court denied certiorari on November 16, 2015.25
The foregoing facts are undisputed.
18
Meso Scale Diagnostics, 2014 WL 2919333, at *12.
19
App. to Op. Br. at A141 (Petition for Writ of Certiorari).
20
Strine v. Delaware Coalition for Open Government, Inc., 572 U.S. 1029 (2014).
21
App. to Ans. Br. at B48–49 (Motion to Withdraw Appearance).
22
App. to Op. Br. at A20 (Complaint).
23
Meso Scale Diagnostics, 2014 WL 2919333, at *29.
24
116 A.3d 1244, 2015 WL 3824809 (Del. June 18, 2015).
25
136 S. Ct. 524 (2015).
7
Meso asserts, and in this procedural posture we assume to be true, certain key
subsequent developments:
15. In early 2018, Jacob Wohlstadter, the President and Chief Executive
Officer of Meso, was conducting Internet research and discovered for the
first time that Mr. Bouchard had represented Vice Chancellor Parsons in the
DelCOG Litigation during his representation of Roche in the Meso
Litigation.
16. Mr. Wohlstadter immediately notified Jonathan Klein-Evans, the Vice
President and General Counsel of Meso, and Meso’s Chief Legal Officer of
this revelation, about which all were previously unaware. They were all
shocked that Vice Chancellor Parsons had never disclosed this fact or recused
himself from the Meso Litigation.
17. After Meso learned of this conflict of interest, and despite its involvement
in another trial at the time, Mr. Klein-Evans led a careful investigation of the
issue. The investigation confirmed that no one at Meso was aware of Mr.
Bouchard’s representation of Vice Chancellor Parsons. Nor were there any
indications that it had been disclosed.26
Thereafter, Meso sought to retain counsel to collaterally challenge the judgment.
Meso secured its current firm in July 2018 after six other firms declined to represent it.
That firm lacked a Delaware office, and Meso was able to retain local counsel on January
24, 2019 only after five other firms declined representation. Meso sought to file the instant
matter as a Rule 60(b) motion under the Meso Litigation’s docket on February 22, 2019.
At the direction of the clerk’s office, Meso refashioned the motion as a separate complaint
and filed it on February 28, 2019, stipulating that “the Court may elect to treat this
complaint as a motion under subsections (4) and (6) of [Court of Chancery Rule 60(b)].”27
26
App. to Op. Br. at A20–21 (Complaint).
27
Id. at A17 (alteration added).
8
Roche moved to dismiss. The Court of Chancery heard argument on May 6, 2020.28
On May 18, 2020, the trial court ruled that Meso was not entitled to relief under either Rule
60(b)(4) or 60(b)(6), and it granted Roche’s dismissal motion.
II. The Court of Chancery’s Ruling
Meso argued that the court’s judgment in the Meso Litigation was “void” under
Rule 60(b)(4) because Vice Chancellor Parsons’s failure to recuse himself violated Meso’s
due process rights. The Court of Chancery disagreed.
Surveying federal case law, the Court of Chancery determined that a due process
violation renders a judgment void only when the violation involves “a failure to give notice,
reasonably calculated to afford the parties an opportunity to be heard,” or when the
judgment is premised on a certain type of jurisdictional error.29 According to the Vice
Chancellor, failure to recuse results in a judgment that “was, at best [for Meso], voidable.”30
Because voidable judgments are not subject to vacatur under Rule 60(b)(4), the Vice
Chancellor found that subsection inapplicable.
The Court of Chancery also rejected Meso’s claim that it was entitled to relief under
Rule 60(b)(6), which provides for relief from a final judgment for “any other reason
justifying relief from the operation of the judgment.”31 The court relied on Liljeberg v.
28
App. to Ans. Br. at B319–79 (Motion to Dismiss Oral Argument Transcript).
29
Order at 11–12.
30
Id. at 16. Because of this finding, the court determined that it did not need to resolve the question
of whether the alleged failure to recuse would ever constitute a violation of due process.
31
Del. Ct. Ch. R. 60(b)(6).
9
Health Services Acquisition Corp.32 as the key case for analyzing undisclosed conflicts of
interest under Rule 60(b)(6). The trial court reasoned, based on Liljeberg, that in order to
obtain vacatur, Meso had to show that (1) it acted within a reasonable time, and (2) the
failure to recuse constituted “extraordinary circumstances,” considering three factors set
forth in Liljeberg. As the United States Supreme Court explained in Liljeberg:
Rule 60(b)(6) relief is accordingly neither categorically available nor
categorically unavailable for all [judicial disqualification] violations. We
conclude that in determining whether a judgment should be vacated for a
violation of [the federal judicial disqualification statute], it is appropriate to
consider the risk of injustice to the parties in the particular case, the risk that
the denial of relief will produce injustice in other cases, and the risk of
undermining the public’s confidence in the judicial process. We must
continuously bear in mind that “to perform its high function in the best way
‘justice must satisfy the appearance of justice.’”33
Applying that standard, the Court of Chancery determined that Meso had neither
acted within a reasonable time nor had it identified extraordinary circumstances.
As to the first step of the test, the court found that “conspicuously absent from
Meso’s pleading is an averment that its attorneys did not know of now-Chancellor
Bouchard’s representation.”34 Although when pressed at oral argument Meso asserted that
it had reached out to its former counsel’s firms to investigate their awareness of the
representation issue, the trial court refused to consider facts not pled. Because Meso’s
attorney’s knowledge was imputable to it, the Vice Chancellor found that Meso’s lack of
32
486 U.S. 847, 108 S. Ct. 2194, 100 L. Ed. 2d 855 (1988) (citing 28 U.S.C. § 455, the statute for
federal judicial disqualification).
33
Id. at 864 (quoting In re Murchison, 349 U.S. 133, 136 (1955)).
34
Order at 17.
10
awareness of the highly-publicized DelCOG Litigation could not be inferred reasonably
from the averments in the complaint.
The trial court then found that even if Meso had pled that neither it nor its attorneys
knew of the DelCOG Litigation and representation at any time prior to early 2018, the full
year delay in securing counsel was unreasonable. The court also took judicial notice that,
while “not ultimately dispositive,” Meso’s eventual local counsel was the Coalition’s
counsel from the DelCOG Litigation.35
As to extraordinary circumstances, the trial court found that granting relief would
severely prejudice Roche by negating a long-settled judgment obtained after trial, while
Meso had failed to allege any injustice that it would suffer. Likewise, the trial court found
that “the ostensible judicial ethics violation Meso has identified is not remotely, much less
conceivably, serious under the Rule 60(b) rubric.”36 The trial court noted that the lawsuit
named all of the Judicial Officers; that its allegations were directed to them solely in their
official capacity; and that it “merely sought to prevent confidential arbitrations, a process
from which the judges would reap no personal benefit.”37 Given those facts, the trial court
concluded that even if the representation were deemed to violate judicial ethics rules, it
could not have “caused any reasonably conceivable harm, much less serious harm.”38
35
Id. at 19.
36
Id. at 22.
37
Id.
38
Id. at 23.
11
III. Contentions on Appeal
On appeal, Meso argues that the Court of Chancery erred in denying relief under
both Rule 60(b)(4) and Rule 60(b)(6).
Meso argues that Rule 60(b)(4) applies because any judgment issued in violation of
“procedural due process” is void. It also argues that even if only a narrower subset of due
process violations satisfy Rule 60(b)(4), the judgment is void in this case because a hearing
before a conflicted judicial officer deprived Meso of the “opportunity to be heard.”
Therefore, Meso urges us to examine the constitutional due process issue and hold that
Vice Chancellor Parsons violated Meso’s due process rights by failing to recuse.
As to Rule 60(b)(6), Meso asserts that it was not aware of the DelCOG Litigation
and potential conflict until Mr. Wohlstadter’s internet search in 2018. Acknowledging that
attorney knowledge is imputed to the client, Meso argues that it nevertheless properly pled
a lack of awareness of the conflict at the time of the trial and appeal. It urges the Court to
consider the year-long gap between Mr. Wohlstadter’s search and its filing justified in light
of the difficulty it experienced in retaining a firm willing to represent it in a suit alleging
“serious ethics violations” by a Vice Chancellor.
Roche believes that both of Meso’s arguments are misguided. It argues that we and
many other jurisdictions have found that recusal violations render a judgment merely
voidable, not void, and hence ineligible for vacatur under Rule 60(b)(4). It argues that
Meso’s efforts to distinguish these authorities by claiming that the threat of impartiality
12
constructively denied them an opportunity to be heard cannot survive its concession that
the Vice Chancellor was not in fact actually biased.
Roche further contends that the trial court’s Rule 60(b)(6) ruling is correct. It
asserts that the judicial ethics rules did not require recusal since Vice Chancellor Parsons
was clearly a nominal party in the DelCOG Litigation and that no objective observer would
harbor doubts as to his impartiality. In any case, because all members of the Court of
Chancery had the same potential conflict as the nominal defendants in the DelCOG
Litigation, Roche argues that the rule of necessity would militate against recusal even if it
were otherwise warranted.
IV. The Relevant Ethical Framework
We first explain the ethical framework in which Meso’s Rule 60(b) challenge arises,
as the parties have devoted much attention to the ethical rules pertaining to judicial
conflicts. Although Rule 60(b) is the basis upon which this dispute is resolved, the
underlying ethical framework is important to our system of justice and in promoting public
confidence in the integrity of our judicial system. We start with the basic rules governing
judicial disqualification and recusal and then consider other ethical considerations relevant
to the unique circumstances presented here. We then address the Rule 60(b) issues Meso
has raised on appeal.
A. The Delaware Judicial Code
This Court is the entity ultimately responsible for promulgating the rules and
13
practices governing both bench and bar in Delaware.39 We promulgated the Delaware
Judges’ Code of Judicial Conduct (“Judicial Code”) in fulfillment of that duty.40
The Judicial Code provides that a “judge should uphold the integrity, independence
and impartiality of the judiciary”41 and to that end “should avoid impropriety and the
appearance of impropriety in all activities.”42 According to the Judicial Code,
“impartiality” is the “absence of bias or prejudice in favor of, or against, particular parties
or classes of parties, as well as maintenance of an open mind in considering issues that may
39
See Del. Const. art. IV, § 37 (“A judicial officer may be censured or removed by virtue of this
section for. . . persistent misconduct in violation of the Canons of Judicial Ethics as adopted by the
Delaware Supreme Court from time to time.”); see In re Appeal of Infotechnology, Inc., 582 A.2d
215, 216–17 (Del. 1990) (“Unless the challenged conduct prejudices the fairness of the
proceedings, such that it adversely affects the fair and efficient administration of justice, only this
Court has the power and responsibility to govern the Bar, and in pursuance of that authority to
enforce the Rules for disciplinary purposes.”); see also In re Green, 464 A.2d 881, 885 (Del. 1983)
(internal citations omitted):
This Court, alone, has the responsibility for licensing and disciplining persons
admitted to practice in Delaware. This tenet is of historic proportions, having been
transplanted to Delaware by the colonists. It is based on the concept, taken from
England, that the courts possess the exclusive right to govern the practice of law.
Moreover, the interest of this State in matters pertaining to the admission and
regulation of lawyers practicing before our courts is essential to the primary
governmental function of administering justice, and in meeting our obligation to
protect the public by assuring and maintaining high standards of conduct of persons
admitted to this Bar.
40
See Del. Judges’ Code of Judicial Conduct [Hereinafter “Judicial Code”] Preamble (“This Code
shall constitute the ‘Canons of Judicial Ethics’ referenced in the Delaware Constitution, Article
IV, Section 37.”).
41
Id. Canon 1. See also id. Canon 2 (“A judge should perform the duties of judicial office
impartially, competently and diligently.”).
42
Id. R. 1.2(A). See also id. R. 2.3(B) (“A judge should avoid impropriety and the appearance of
impropriety in all activities.”); R. 2.5(A) (“A judge should perform the duties of the office
impartially and diligently.”).
14
come before a judge.”43 The Judicial Code provides that “[t]he test for appearance of
impropriety is whether the conduct would create in reasonable minds, with knowledge of
all the relevant circumstances that a reasonable inquiry would disclose, a perception that
the judge’s ability to carry out judicial responsibilities with integrity, impartiality and
competence is impaired.”44
Judicial Code Rule 2.11 governs disqualification. That Rule states that “[a] judge
should disqualify himself or herself in a proceeding in which the judge’s impartiality might
reasonably be questioned, including but not limited to” a set of enumerated examples.45
Those examples, contained in Rule 2.11(A), include situations where the judge is biased;
has personal knowledge of disputed evidentiary facts concerning the proceeding; where the
judge, the judge’s relative to within the third degree or the judge’s spouse or domestic
partner has or is likely to have some involvement in the case at bar; where some member
of the judge’s household, directly or as a fiduciary, has an economic interest in the subject
matter, or in a party, or any other interest that could be substantially affected by the
outcome of the proceeding; or where the judge “served as a lawyer in the matter in
43
Id. Terminology. See also ABA Model Code of Judicial Conduct, Terminology (defining
“impartiality” as the “absence of bias or prejudice in favor of, or against, particular parties or
classes of parties, as well as maintenance of an open mind in considering issues that may come
before a judge”).
44
Judicial Code R. 1.2(A) cmt.
45
See also Stevenson v. State, 782 A.2d 249, 255 (Del. 2001) (regarding the predecessor provision
to Rule 2.11, this Court observed that “[t]he specific instances prompting disqualification that are
set forth in the Code do not exhaust all situations in which a judge’s impartiality may be reasonably
questioned.”).
15
controversy, or a lawyer with whom the judge previously practiced law served during such
association as a lawyer concerning the matter, or the judge or such lawyer has been a
material witness concerning it, or the judge was associated in the practice of law within the
preceding year with a law firm or lawyer acting as counsel in the proceeding.”46
In furtherance of these requirements, Rule 2.11(B) obligates the judge to make
reasonable efforts to keep informed of his or her own economic and fiduciary interests, and
those of the judge’s immediate family and household members.47
With certain enumerated exceptions listed in the rule, Rule 2.11(C) provides that as
an alternative to disqualification, the judge “may, instead of withdrawing from the
proceeding, disclose on the record the basis of the judge’s disqualification,” and “if the
parties and their lawyers, after such disclosure and an opportunity to confer outside of the
presence of the judge, all agree in writing or on the record that the judge should not be
disqualified, and the judge is then willing to participate, the judge may participate in the
proceeding.”48
Disclosure and waiver pursuant to Rule 2.11(C) is available for all situations in
which a judge is disqualified by the terms of Rule 2.11, except two from the enumerated
list, namely, Rule 2.11(A)(1) and 2.11(A)(4).49 Those are, respectively, conflicts due to
46
Judicial Code R. 2.11(A)(4)(a).
47
Id. R. 2.11(B).
48
Judicial Code R. 2.11(C).
49
Id.
16
actual personal bias or prejudice concerning a party or personal knowledge of disputed
evidentiary facts concerning the proceeding, and certain enumerated matters related to the
judge’s or the judge’s previous law practice’s current or prior involvement in the case.50
B. Conflicts Arising from the Judge as Party in Other Litigation
The cases addressing judicial disqualification and recusal invariably involve an
analysis of the unique facts and circumstances giving rise to the challenge. The leading
Delaware case on judicial disqualification arising from the judge’s participation as a party
in other litigation is Los v. Los.51
Los involved parties in acrimonious and lengthy Family Court litigation. Mr. Los
petitioned for review of a child support order. Two weeks before the hearing, he filed suit
in federal court against Ms. Los, her counsel, the Delaware Attorney General, and the
Family Court judge, seeking to invalidate as unconstitutional Delaware’s child support
formula and Family Court Rule 26, requiring court approval before initiating discovery.52
Though it recited a prayer for damages, the federal suit’s claims against the Family Court
50
In other words, if the lawyer’s participation in the matter before the judge gives rise to an actual
bias or prejudice, the judge is disqualified under Rule 2.11(A)(1), and the disqualification is not
waivable. Assuming the judge “reasonably concludes” that he or she does not have an actual bias
or prejudice, the judge “may continue to preside over the matter as long as [the judge] complies
with the remaining requirements” of Rule 2.11(C).” Lawyer Concurrently Representing Judge
and Litigant Before the Judge in Unrelated Matters, ABA Standing Comm. On Ethics & Prof’l
Resp., Formal Op. 07-449 (Aug. 9, 2007).
51
595 A.2d 381 (Del. 1991).
52
Id. at 383.
17
judge were solely that he discharged his official duties in accordance with court rules and
state law.
At the hearing, Mr. Los sought the judge’s recusal. He asserted that the federal case
rendered the judge conflicted, and also that the judge was biased against him, but presented
no specific basis for his claim. The Family Court judge determined first that he harbored
no subjective bias against Mr. Los, and second that the federal litigation did not present a
disabling conflict, and so he refused to disqualify himself. As Mr. Los refused to
participate in the hearing, the judge dismissed the petition and Mr. Los appealed.
This Court affirmed the Family Court’s decision. In our view, “as a matter of due
process, a litigant is entitled to neutrality on the part of the presiding judge but the standards
governing disqualification also require the appearance of impartiality.”53 We noted that
the judicial ethics rules we had promulgated codified both of these requirements.54
We determined that “[w]here the basis for the alleged disqualification is a claim,
under Canon 3(C)(1) [the predecessor to Rule 2.11(A)], that the judge ‘has a personal bias
or prejudice concerning a party,’ no per se automatic disqualification is required.”55
53
Id.
54
At the time of Los, the operative ethical rule was Canon 3(C)(1) of the 1987 predecessor to the
current Judicial Code. Id. (citing Weber v. State, 547 A.2d 948, 951–52 (Del. 1988)). Canon
3(C)(1) corresponds to Rule 2.11(A)(1) of the current Delaware Judicial Code. The modest
differences between Canon 3(C)(1) in the 1987 Judicial Code and Rule 2.11(A) in the current one,
including use of masculine language to refer to the judge in the 1987 version, are immaterial to the
present case. As we note in the Preamble, we adopted the current Judicial Code in 2008,
reformatting and renumbering its provisions to conform to the order and numbering of the ABA
2007 Model Code of Judicial Conduct.
55
Los, 595 A.2d at 384.
18
Instead, we held that when “faced with a claim of personal bias or prejudice” under Canon
3(C)(1), the judge must engage in a two-part analysis to determine if recusal is warranted.
First, the judge must determine whether she is subjectively satisfied that she can hear the
case free of bias or prejudice concerning the party seeking recusal. Second, “even if the
judge believes that he or she is free of bias or prejudice, the judge must objectively examine
whether the circumstances require recusal because ‘there is an appearance of bias sufficient
to cause doubt as to the judge’s impartiality.’”56 When the trial judge performs those two
inquiries, we review each under the deferential abuse of discretion standard.
As this Court further explained, “[t]he mere fact that a judge is an adverse party in
another proceeding will not, by itself, result in automatic disqualification.”57 We noted a
“compelling” policy reason for a judge not to disqualify herself at the behest of a party who
initiates litigation against a judge -- in “the absence of genuine bias, a litigant should not
be permitted to ‘judge-shop’ through the disqualification process.”58 Permitting a litigant
56
Stevenson v. State, 782 A.2d at 255 (citation omitted); see also Layton v. Layton, 211 A.3d 136,
2019 WL 2078346, at *2 (Del. May 10, 2019) (TABLE) (“the judge must determine whether there
is the appearance of bias sufficient to cause objective doubt as to the judge's impartiality”); Turner
v. State, 162 A.3d 102, 2017 WL 1954944, at *1 (Del. May 10, 2017) (TABLE) (“even if the judge
subjectively believes she does not have bias, she must determine that there is not an ‘appearance
of bias sufficient to cause doubt as to the judge's impartiality.’”) (quoting Los, 595 A.2d at 385).
As the United States Supreme Court stated in In re Murchison, “to perform its high function in the
best way, ‘justice must satisfy the appearance of justice.’” 349 U.S. at 136 (quoting Offutt v.
United States, 348 U.S. 11, 14 (1954)).
57
Los, 595 A.2d at 385.
58
Id.
19
to exert control over which judge presides over a case by provoking a conflict by filing
another action would hamper the orderly administration of justice.59
That policy concern, so compelling in Los, is inapplicable here. Though we stated
in Los that “there was no requirement that [a judge] disqualify himself where he was sued
in his judicial capacity in an action instituted during the course of the proceedings before
him,” we were addressing a circumstance where the litigant seeking disqualification
provoked the conflict. Meso did not. Though the DelCOG Litigation was later-filed, the
alleged conflict arose because of the involvement of Roche’s counsel. Meso and its agents
neither created nor controlled the circumstances of which it now complains. That
dissimilarity distinguishes Los from the present case and necessitates further examination.
C. Other Jurisdictions’ Treatment of Judge-as-Litigant Conflicts
Because this Court has not previously examined cases where counsel represented a
judge in a different case, we examine the treatment of this issue in other jurisdictions. Our
Delaware Judicial Code is derived in substantial part from the American Bar Association’s
(“ABA”) Model Code of Judicial Conduct. Many other states have similarly modeled their
own rules of judicial ethics on the ABA Model Code and have considered the effect of an
attorney’s representation of the judge in an unrelated suit.60
59
Id. (citing Smith v. Smith, 564 P.2d 1266 (Ariz. 1977)).
60
Delaware courts have examined this issue in cases involving other types of adjudicators.
Although the standards applied in these situations are not the same as those applied in the judicial
context, they offer some insight into the concerns posed by such dual representations. In Beebe
Med. Ctr., Inc. v. InSight Health Servs. Corp., a party sought vacatur of an arbitration award after
learning that adverse counsel represented the arbitrator (who sat as one member of a three-lawyer
arbitration panel) in an unrelated suit for money damages against the arbitrator’s former employer.
20
Considering the dual representation issue, the ABA’s Standing Committee on Ethics
and Professional Responsibility (“ABA Committee”) issued Informal Opinion 147761 in
1981, primarily directed to the judge’s obligations, and Formal Ethics Opinion 07-44962 in
2007, addressing both the attorney’s and judge’s obligations.
In its earlier Informal Opinion 1477, the ABA Committee stated that in the absence
of applicability of the rule of necessity, “when a private lawyer is currently representing a
judge, even in a matter involving the judge’s official position or conduct, the judge should
not sit in a case in which a litigant is represented by the lawyer or by the lawyer’s partner
751 A.2d 426, 427 (Del. Ch. 1999). The Court of Chancery determined that the “evident partiality”
standard under 10 Del. C. § 5714(a)(2) was satisfied and vacatur was the necessary remedy “where
an arbitrator does not disclose a relationship with a party that creates a reasonable impression of
bias.” Beebe, 751 A.2d at 427. See also Del. Transit Corp. v. Amalgamated Transit Union Local
842, 34 A.3d 1064, 1072 (Del. 2011) (holding that to demonstrate “evident partiality,” the record
“must reflect that an arbitrator failed to disclose a substantial personal or financial relationship
with a party, a party’s agent, or a party’s attorney that a reasonable person would conclude was
powerfully suggestive of bias.”). In Home Paramount Pest Control v. Gibbs, 953 A.2d 219 (Del.
2008), an employer sought to vacate an administrative decision awarding workers’ compensation
benefits to an employee for carpal tunnel syndrome. The employer’s basis for vacatur was a
constellation of similarities between the employee’s claim and an earlier claim that the hearing
officer herself had filed. We determined that the two-part Los test applied to an Industrial Accident
Board hearing officer. Id. at 221. Applying it, this Court found no abuse of discretion in the
hearing officer’s determination that she was not subjectively biased. But we concluded that “a
person knowing this unusual overlap in both the claim and the participants” in the hearing officer’s
past case and the case before her “would have a reasonable basis to question her impartiality.” Id.
at 222. Thus, we held that “in order to promote public trust and confidence in our judicial system,
the hearing officer should have recused herself,” and we reversed. Id.
61
Requirement of Judicial Recusal When a Litigant is Represented by Judge’s Lawyers, ABA
Standing Comm. on Ethics & Prof. Resp., Informal Op. 1477 (Aug. 12, 1981) [Hereinafter
“Opinion 1477”]. Like Los, Opinion 1477 was decided under the prior numbering system, wherein
Rule 2.11(A)’s provisions were embodied by Canon 3(C)(1).
62
Lawyer Concurrently Representing Judge and Litigant Before the Judge in Unrelated Matters,
ABA Standing Comm. On Ethics & Prof’l Resp., Formal Op. 07-449 (Aug. 9, 2007) [Hereinafter
“Opinion 07-449”].
21
or associate.”63 Thus, the ABA Committee drew no distinction between lawyers
“representing the judge in a personal matter or in a matter pertaining to the judge’s official
position or conduct.”64
In its 2007 Formal Opinion 07-499, the ABA Committee later stated that:
The Committee does not assume that, whenever a judge finds herself
presiding over a matter in which a lawyer for one of the parties is
concurrently representing her in an unrelated matter, she inevitably develops
a personal bias or prejudice for or against her lawyer thus triggering the
mandatory and nonwaivable disqualification under Judicial Code Rule
2.11(A)(1). The existence or nonexistence of such bias or prejudice depends
on the facts of any particular situation. When a judge reasonably concludes
that she is not personally biased or prejudiced towards her lawyer, she may
continue to preside over the matter as long as she complies with the
remaining requirements of Judicial Code Rule 2.11(C).65
Thus, in the ABA Committee’s view, such a conflict can be waived when a judge
reasonably concludes that she is not personally biased or prejudiced towards her lawyer.66
63
Opinion 1477 at 2. In Opinion 1477, the ABA expressly did not address a situation in which a
judge, in her official capacity, is represented by “a state attorney general in discharge of the
attorney general’s legal duty to represent judicial officers in matters pertaining to their judicial
office or duty.” Id. It expressly stated that it did not reach “the view that such a situation would
require recusal in all cases in which the attorney general, or other public attorney, or their assistants
represent the state or its agencies before the court.” Id.
64
Opinion 1477 at 1.
65
Opinion 07-449 at 2.
66
See Opinion 07-449 at 1. (“[A]bsent such a bias or prejudice for or against her lawyer, under
Judicial Code Rule 2.11(C), the judge may continue to participate in the proceeding if the judge
discloses on the record that she is being represented in the other matter by one of the lawyers, and
the parties and their lawyers all consider such disclosure, out of the presence of the judge and court
personnel, and unanimously agree to waive the judge’s disqualification.”); Opinion 1477 at 2
(noting that the ABA’s Model Code “permits remittal of disqualification in specified
circumstances (financial interest and family relationship) upon agreement of their parties and their
lawyers that the judge's interest is insubstantial or his relationship is immaterial.”).
22
Waiver under Rule 2.11(C) requires that a willing judge disclose the representation on the
record, and then:
ask the parties and their lawyers to consider, outside the presence of the judge
and court personnel, whether to waive disqualification. If, following the
disclosure, the parties and lawyers agree, without participation by the judge
or court personnel, that the judge should not be disqualified, the judge may
participate in the proceeding. The agreement shall be incorporated into the
record of the proceeding.67
The ABA Committee regards the judge’s ethical obligation to disclose the
representation issue as unequivocal, and states that the absence of such disclosure “cannot
be cured by reliance on the fact that all parties to the matter already might be aware of the
lawyer’s representation of the judge in another matter.”68
Various state supreme courts have addressed this dual representation issue. The
Supreme Court of Iowa also construes its version of Rule 2.11(A) as being the relevant
inquiry in cases where a judge is represented by a party’s counsel.69 In In re Howes, an
Iowa judge was represented by an attorney in the judge’s divorce.70 While that
representation was ongoing, the attorney sought an ex parte temporary injunction on behalf
of another client in a custody matter from the judge, who granted it.71 The Iowa Supreme
67
ABA Model Code of Judicial Conduct R. 2.11(C). Opinion 07-449 cites Rule 2.11(C) by name
as the appropriate procedure, while Opinion 1477 cites its predecessor extant at the time, Canon
3(D).
68
Opinion 07-449 at 3.
69
In re Howes, 880 N.W.2d 184, 193 (Iowa 2016).
70
Id. at 189.
71
Id. at 190–91.
23
Court stated that its version of Rule 2.11 “does not presume actual personal bias or
prejudice on the part of a judge merely because a party’s lawyer currently represents or
previously represented the judge in an unrelated matter.” Rather, “disqualification is
required based on an existing or former attorney-client relationship between the judge and
a party’s lawyer only when ‘the judge’s impartiality might reasonably be questioned’ due
to that relationship.”72 The Court then found that “[w]hen an attorney who
contemporaneously represents or recently represented a judge in a personal matter appears
before the judge in another case and the judge does not disclose that fact to the parties, the
judge’s impartiality might reasonably be questioned.”73 Because the judge did not disclose
the representation to the parties and obtain a waiver, she was required to disqualify herself
from the injunction proceeding.74
The Supreme Court of North Dakota dealt with the issue of a judge’s representation
by a party’s law firm in Sargent County Bank v. Wentworth.75 In that case, a disbarred
attorney, William Williams, had commenced a “frivolous” “nuisance lawsuit” against a
judge, the state attorney general, the state bar association, the attorney disciplinary
authority, and others. The lawyer who represented the judge in that suit was part of a firm,
another member of which represented a bank in a foreclosure proceeding before the judge.
72
880 N.W.2d at 194–95 (citing Iowa R. 51:2.11).
73
Id. at 195.
74
Id. at 204.
75
500 N.W.2d 862 (N.D. 1993).
24
The bank’s firm had represented the judge in the Williams suit; the bank’s original attorney
had been one of the judge’s co-defendants; and that same attorney was a fact witness in the
foreclosure action. The court held that “a reasonable person could, on the basis of these
objective facts, reasonably question [the judge’s] impartiality,” and that the judge therefore
was required to disqualify himself in the foreclosure action.76
The Ohio Supreme Court, in In re Disqualification of Reinbold, stated that “[a] trial
judge’s impartiality may reasonably be questioned if he or she presides over a case in which
a litigant is represented by the judge’s own lawyer” and that the Ohio “chief justice and the
Board of Professional Conduct have long advised that a judge should recuse himself or
herself—or be disqualified—from actions in which an attorney in the case is representing
the judge in another proceeding.”77
Wright & Miller also observes a similar rule under the applicable federal statute,
which requires judicial disqualification “in any proceeding in which [a judge’s] impartiality
might reasonably be questioned.”78 That treatise states that a situation in which “an
attorney in the case is currently representing the judge in a suit for damages . . . seems
appropriate for disqualification under § 455(a).”79
76
Id. at 879–80. The North Dakota Supreme Court reversed the judgment in favor of the bank
and remanded for a new trial before a different judge. Id. at 880.
77
94 N.E.3d 570, 570 (Ohio 2017).
78
28 U.S.C. § 455(a).
79
13D Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 3549, at text
accompanying note 28 (3d ed. Oct. 2020 update) (citing cases).
25
But the existence of bias or prejudice depends on the unique facts in each case. In
their briefing, the parties recognize this and address a number of factors such as whether
the judicial officer has been sued in her official capacity, whether the judicial officer is a
nominal party, and whether all judicial officers who might normally preside over the matter
have also been sued.80 Because the litigation was brought against Vice Chancellor Parsons
in his official capacity and as a nominal party, and against all of the other members of the
Court of Chancery, and because the Vice Chancellor had no financial or other personal
interest in the outcome of that lawsuit, we next consider how certain jurisdictions have
weighed these factors.
D. Representation in an Official Capacity Suit
In analyzing disqualification when counsel appearing before a judge represents that
judge in another matter, various courts have distinguished between suits where the judge
is sued in her personal capacity versus suits asserting claims arising from her official
conduct and position.
The Iowa Supreme Court limited its decision In re Howes (discussed above) to cases
where judges were represented in “personal matters.” That court expressly noted that it
“need not decide whether or under what circumstances disqualification is required under
80
For example, Meso acknowledges in its opening brief that there are “a host of other factors that
could distinguish this case from others” including the level of counsel’s “involvement” in the
underlying litigation. Op. Br. at 17.
26
rule [2.11(A)] based on an attorney’s representation of a judge in a matter concerning the
judge's official acts.”81
Conversely, in In re Disqualification of Badger, the Ohio Supreme Court required
disqualification where nothing suggested that the judge was biased or prejudiced, where
the unrelated case in which the judge was concurrently represented by counsel pertained to
the judge’s official position, and where the judge had no involvement in the selection of
counsel.82 The Ohio Supreme Court later observed that this rule had been modified as it
applies to prosecuting attorneys and the Attorney General, who are statutorily required to
represent judges in their official capacity, and to judges who are named as nominal parties
and who are represented by the Attorney General’s office. Thus, in In re Disqualification
of Whitmore, the Ohio Supreme Court held that disqualification was not required where
the prosecuting attorney representing the judge was not the same prosecutor appearing
before the judge in another case.83 More recently the Ohio Supreme Court noted a number
of “recognized exceptions” to the rule that “[a] trial judge’s impartiality may reasonably
be questioned if he or she presides over a case in which a litigant is represented by the
judge’s own lawyer.”84 Included among the exceptions is that “disqualification may not
be necessary if the judge is merely a nominal party in the case represented by the
81
See In re Howes, 800 N.W.2d at 195 n.3 (alteration added).
82
546 N.E.2d 929, 929 (Ohio 1989) (“when a private lawyer is currently representing a judge,
even in a matter involving the judge’s official position or conduct, the judge should not sit in a
case in which a litigant is represented by the lawyer.”) (quoting and following Opinion 1477).
83
704 N.E.2d 1235, 1235 (Ohio 1998).
84
In re Disqualification of Reinbold, 94 N.E.3d at 570.
27
prosecuting attorney or attorney general or if the judge is not personally or substantively
involved in that litigation.”85
The United States Judicial Conference Committee on Codes of Conduct has opined
that disqualification is not always required when the unrelated suit is against the judge in
his or her official capacity.86 In the Committee’s view, “a judge’s impartiality cannot
reasonably be questioned in unrelated matters handled by the DOJ simply because the
Department provides representation in a lawsuit naming the judge in an official capacity,”87
and “[w]hen accepting representation by the Department, a judge is not choosing a personal
attorney, and the DOJ is not the same as a private law firm.”88 More broadly, the
Committee stated, “[n]or is disqualification always required in unrelated matters handled
by the individual attorney assigned to represent the judge.”89 As it explained, “[n]umerous
lawsuits against judges are filed by disgruntled litigants and are patently frivolous; they are
often dismissed promptly and without any discovery on the basis of the judge’s absolute
judicial immunity,” and “[i]n these instances, a judge often will have little personal contact
with the government attorney providing representation.”90 Thus, disqualification “is not
85
Id. at at 571.
86
U.S. Jud. Conf. Comm. Code Cond., Disqualification Issues Relating to Judge Being Sued in
Official Capacity, Including Representation by Department of Justice, Adv. Op. No. 102, 2009
WL 8484596 (June 2009).
87
Id. at *1.
88
Id.
89
Id.
90
Id.
28
always required, but instead depends on the particular facts and circumstances of the case,”
including the nature of the claims and the judge’s relationship with the attorney.91
The Kentucky Supreme Court, in Alred v. Kentucky Judicial Conduct Commission,
relying on a Kentucky Judicial Ethics Opinion, has recognized that “where a judge is sued
in his official capacity and the Attorney General’s office represents him, the judge need
not automatically disqualify himself from cases in which the Attorney General
participates.”92 That court has held that the same rule applies where “a judge is sued in his
official capacity . . . and he hires outside counsel to represent him,” but has distinguished
that situation from a situation in which the judge “hires an outside attorney to represent
him in personal litigation.”93
As these cases illustrate, the capacity in which a judicial officer is sued is an
important factor to consider. On one end of that continuum is a lawyer representing a judge
in highly personal litigation such as a divorce or personal injury case (as in In re Howes).
On the other end might be, for example, a situation where a member of the Department of
Justice (“DOJ”), pursuant to state statute,94 represents a judicial officer sued in her official
capacity. Even when judges are sued in their official capacity, there are often other nuances
91
Id. at *1–2.
92
395 S.W.3d 417, 431–32 (Ky. 2012).
93
Id. at 431.
94
See 29 Del. C. § 2504(3) (“The State Department of Justice and the Attorney General shall have
the following powers, duties and authority. . . [n]otwithstanding any other laws, to represent as
counsel in all proceedings or actions which may be brought on behalf of or against them in their
official capacity in any court, except in actions in which the State has a conflicting interest, all
officers, agencies, departments, boards, commissions and instrumentalities of state government”).
29
that affect the analysis, as the Alred case illustrates. Such other factors may include
whether the judge is a mere nominal party, and whether and the extent to which the judge
has direct contact with the DOJ attorneys.
In this case, the DelCOG Litigation asserted a cause of action under 42 U.S.C. §
1983.95 The record overwhelmingly shows that Vice Chancellor Parsons was named as a
defendant in his official capacity as a Vice Chancellor of the Court of Chancery and was
merely a nominal party in the DelCOG Litigation.96 He had no financial, reputational, or
other personal stake in the suit at any time.97
E. The Rule of Necessity
Other rules may come into play when all of the members of a court are named as
defendants in a lawsuit. The “rule of necessity” is the principle of common law that “a
judge is not disqualified to [sit in] a case because of his personal interest in the matter at
95
App. to Op. Br. at A033 (DelCOG Complaint). Under Section 1983, “[a]n action for money
damages may not be maintained against a state or its agencies.” Delaware Dept. of Health & Soc.
Servs. v. Sheppard, 864 A.2d 929, 2004 WL 2850086, at *2 (Del. Dec. 10, 2004) (TABLE) (citing
Lapides v. Bd. of Regents, 535 U.S. 613, 617, 122 S. Ct. 1640, 152 L. Ed. 2d 806 (2002)).
96
As the Court of Chancery observed, “[i]n the federal action, Vice Chancellor Parsons and the
other members of the Court of Chancery were named as defendants because the coalition could
not sue the State of Delaware or the Court of Chancery directly since they were protected from
suit by sovereign immunity.” Order at 5–6.
97
Further, judges are absolutely immune from money damages resulting from their judicial
actions. Stump v. Sparkman, 435 U.S. 349, 356, 98 S. Ct. 1099, 1104, 55 L. Ed. 2d 331 (1978).
Judicial immunity is overcome only if the action complained of was taken outside “the judge’s
judicial capacity,” or if the action was “taken in the complete absence of all jurisdiction.” Mireles
v. Waco, 502 U.S. 9, 11–12, 112 S. Ct. 286, 288, 116 L. Ed. 2d 9 (1991).
30
issue if there is no other judge available to hear and decide the case.”98 This rule “reflects
the longstanding principle that to deny an individual access to courts for the vindication of
his or her rights constitutes a far more egregious wrong than to permit a judge to hear a
matter in which he or she has some interest.”99 The rule has been applied to allow judges
to decide cases that would affect judicial retirement benefits or compensation for all of the
judges in a jurisdiction,100 resolve a challenge to a rule requiring all federal judges to file
annual personal financial statements,101 or decide the validity of a statute that would
compromise the independence of the state judiciary.102 It has been applied where the case
98
Atkins v. United States, 556 F.2d 1028, 1036 (Ct. Cl. 1977) (alteration added). The court in
Atkins observed that, “[t]he rule of necessity was a part of the English common law and has been
traced back to 1430 and the Year Books.” Id .
99
In re Howes, 880 N.W.2d at 201 (citing Weinstock v. Holden, 995 S.W.2d 408, 410 (Mo. 1999)).
Under the rule of necessity, our own procedures provide that “[r]ather than deny a party access to
court, judicial disqualification yields to the demands of necessity.” Supr. Ct. Internal Op. Proc.
XIX(2). See also id. (“The rule of necessity has been invoked where disqualifications exist as to
all members of the state judiciary who would normally hear a matter.”).
100
See Fields v. Elected Officials’ Ret. Plan, 320 P.3d 1160, 1164 (Ariz. 2014) (invoking the rule
of necessity where the Justices were all members of the plan at issue); Bd. of Trs. of Pub. Emps.’
Ret. Fund v. Hill, 472 N.E.2d 204, 206 (Ind. 1985) (applying the rule of necessity in a case
involving calculation of judicial retirement benefits); Weinstock, 995 S.W.2d at 410 (stating that
“[w]hile this particular case involves judicial review of a ‘concurrent resolution’ relating to judicial
pay rather than a statute, no doubt exists that all judges of the state, whether active or senior, have
a potential stake in the outcome of the case,” and “[u]nless the rule of necessity is applied, the
parties can have no judicial resolution of their rights”).
101
See Duplantier v. United States, 606 F.2d 654, 662 (5th Cir. 1979) (holding that rule of
necessity applied where all federal judges would have an interest in a case challenging a statute
that required federal judges to file annual personal financial statements.).
102
See In re P.L. 2001, Chapter 362, 895 A.2d 1128, 1131, 1143 (N.J. 2006) (invoking rule of
necessity in a case challenging a statute that would “fatally compromise[] the independence of the
judiciary” by creating in the administrative office of the courts “a law enforcement unit comprised
of no less than two hundred probation officers” and directing the New Jersey Supreme Court to
promulgate rules for the new unit).
31
involves a legal issue that was within the special province of the members of the allegedly
disqualified court to decide,103 or where an issue of disqualification involved all of the
members of an appellate court, which made designation more problematic. 104 Similarly,
courts frequently hold that the rule of necessity allows judges to hear a case involving an
“indiscriminate[]” litigant who has filed an action that names all of the judges in a particular
jurisdiction as defendants.105 Application of the rule in such instances responds to those
who filed litigation as a tactical effort to “manipulate the random assignment of judges.”106
The rule of necessity exists in Delaware and requires conflicted judges to hear cases
if there is no other judge able to do so. As we said in Nellius v. Stiftel:
The members of this Court would prefer not to sit in this appeal. But this
Court must recognize its responsibility to keep the doors of the Court open
to every litigant. The law is clear. When the right of a litigant to be heard
conflicts with the policy against decisions by interested judges, the former
prevails. The Court is the guardian of that right and we will not avoid our
103
See, e.g., N.Y. State Ass’n of Criminal Def. Lawyers v. Kaye, 744 N.E.2d 123, 126–27 (N.Y.
2000) (holding that the rule of necessity compelled the participation of the members of the New
York Court of Appeals in a case challenging an administrative directive of that court, because that
court “has primary responsibility for the administration of the judicial branch of government, and
some administrative rule-making powers are vested exclusively in the Court of Appeals.”).
104
Id.; see also Ignacio v. Judges of U.S. Ct. of Appeals for the Ninth Circuit, 453 F.3d 1160, 1165
(9th Cir. 2006) (holding that the rule of necessity “should be extended to circumstances like this
where a litigant has named uncritically all the judges of this circuit,” and rejecting “the contention
that the ability to bring in judges from other circuits to hear the case precludes the application of
the rule of necessity as this would be the pragmatic equivalent of having the case transferred out
of circuit.”).
105
See Kurtis A. Kemper, Annotation, Construction and Application of Rule of Necessity in
Judicial Actions, Providing that a Judge Is Not Disqualified to Try a Case Because of Personal
Interest If Case Cannot Be Heard Otherwise, 27 A.L.R. 6th 403 §§ 14–15 (2007) (collecting
federal and state cases, including those where plaintiff had sued all of the judges in a jurisdiction
or would likely sue any judge assigned).
106
In re BellSouth Corp., 334 F.3d 941, 956–59, n.7 (11th Cir. 2003).
32
responsibility.107
In Nellius, an action related to judicial compensation, the rule of necessity required the
conflicted members of this Court to hear the case only so long as the Governor declined to
exercise his power to appoint unconflicted Justices ad litem to sit in their stead.108
Later, in Crosse v. BCBSD, Inc., citing the rule of necessity, this Court heard a case
involving the health insurer with whom every Justice had coverage without resort to
gubernatorial ad litem appointments.109 We observed that under those circumstances,
recusal would have been an impracticable result.110
All of the Judicial Officers of the Court of Chancery were named as defendants in
107
402 A.2d 359, 361–62 (Del. 1978).
108
See id. at 362 (“If the matter is not resolved and if the Governor elects not to commission judges
Ad litem before argument day, the members of this Court, under the rule of necessity, will grant
plaintiffs’ application and, notwithstanding their declared interest, will hear and decide this
appeal.”); see also Del. Const. art IV, § 15 (“The Governor shall have power to commission a
judge or judges ad litem to sit in any cause in any of said Courts when by reason of legal exception
to the Judges authorized to sit therein, or for other cause, there are not a sufficient number of
Judges available to hold such Court.”).
109
836 A.2d 492, 493 n.1 (Del. 2003).
110
Id. But see Dacey v. Conn. Bar Ass’n, 441 A.2d 49, 51 (Conn. 1981) (indicating that the rule
of necessity would not require a trial court judge, who was disqualified because he was a member
of the bar association that was a party in the case, to sit in a case if other judges who were not
members of the bar association could be reassigned); Lorenz v. N.H. Admin. Office of the Courts,
858 A.2d 546, 549 (N.H. 2004) (recusing the entire New Hampshire Supreme Court in a case
challenging an administrative directive of the court, conditioned “upon there being substitute
judges available to sit on this case” by designation); State ex rel. Bardacke v. Welsh, 698 P.2d 462,
475 (N.M. 1985) (declining to apply the rule of necessity when a judge from another court could
be designated to hear a case); Hooker v. Haslam, 393 S.W.3d 156, 167 (Tenn. 2012) (stating that
even if all the judges in Tennessee would be disqualified because the case implicated an economic
interest for all of them (because, for example, the outcome might affect their salaries), the rule of
necessity would not apply because Tennessee law contained provisions that would allow the
governor to appoint “special judges” with no economic interest in the litigation).
33
the DelCOG Litigation. Thus, Roche contends that the rule of necessity permitted Vice
Chancellor Parsons to preside in the Meso Litigation because all of the other members of
the court would face the same alleged disqualifying interest—representation by then-
Attorney Bouchard in the DelCOG Litigation. Meso counters that the rule of necessity did
not apply because Delaware law authorizes the Chief Justice to designate a judge of another
court to sit in the Court of Chancery.
The trial court did not address this point,111 and we think it would be unwise for us
to do so in the first instance and on a purely advisory basis. We recognize that litigants file
in the Court of Chancery based upon its well-deserved reputation of excellence and
expertise in deciding certain types of matters. A party’s choice of forum is an important
aspect of a party’s litigation strategy. We also emphasize the paramount importance of
avoiding situations where a judge’s impartiality might reasonably be questioned as judicial
impartiality is fundamental to the administration of justice and the rule of law. Meso is
correct that mechanisms exist in Delaware for designating judges from another trial court
to handle a matter if all judges on a court are unable to sit on a case.112 Such a decision to
111
See Order at 7–8 (discussing defendants’ arguments relating to “official capacity” suits and the
rule of necessity, and stating that “[w]hile defendants have raised persuasive arguments on these
fronts, I don’t reach these questions because I don’t have to.”).
112
Del. Const. art IV, § 13(2) empowers the Chief Justice, upon written request from the
Chancellor or President Judge of one of the trial courts, or the next most senior Vice-Chancellor
or Judge should that position be empty, to assign a Judge or Justice from another court to sit on
the requesting court by designation for a specified case and period of time in order to hear and
decide the matter. See, e.g. Humanigen, Inc. v. Savant Neglected Diseases, LLC, 238 A.3d 194,
198 n.10 (Del. Super. 2020) (appointing a judge of the Superior Court to sit as a Vice Chancellor
over a case consolidated from complaints filed in both courts) (citing Wal-Mart Stores, Inc. v. AIG
Ins. Co., 2006 WL 3742596, at *4 n.27 (Del. Ch. Dec. 12, 2006)).
34
apply the rule of necessity and to designate a judge from another trial court to hear the case
obviously can potentially affect not only the parties’ litigation strategy, but also both
courts’ resources, particularly in highly complex cases that involve extensive pre-trial, trial
and post-trial proceedings. The complications posed by and arising from such dual
representations are obvious.113
The Vice Chancellor did not decide whether recusal was required in this case, and
he concluded that he did not need to reach the constitutional questions “because, even if
Meso has identified a due process violation, Meso very clearly has not satisfied the
requirement of Court of Chancery Rule 60(b) to obtain relief from a final judgment.”114
We agree.115 We nevertheless have discussed the ethical principles at some length to
reinforce that such dual representation situations should be avoided and that the need for
vigilance at the outset of a case is imperative. A judge who finds herself in such a situation
should follow the procedure set forth in Los — assuming the judge has no actual bias or
prejudice, the judge must examine the facts and circumstances of the particular case to
determine whether the judge’s impartiality might reasonably be questioned. We
acknowledge Meso’s concerns, and we agree with Meso that even though it asserts no
113
Complicating this matter further is the fact that then-Attorney Bouchard was not counsel of
record for the Judicial Officers until after the matter was appealed to the Third Circuit.
114
Order at 9.
115
See Downs v. Jacobs, 272 A.2d 706, 708 (Del. 1970) (“[i]t is the settled policy of this Court
that a constitutional question will not be decided unless its determination is essential to the
disposition of a case.”). As we said in Downs, “[w]e consider that policy of judicial restraint to be
an important element in the orderly administration of justice.” Id.
35
claim of any actual bias or prejudice on his part, the Vice Chancellor, at a minimum, should
have disclosed the representation on the record.116 Meso then would have had the option
of waiving the conflict,117 or formally seeking the Vice Chancellor’s recusal thereby
allowing the recusal issues to be addressed in the proceeding directly instead of years later
in a collateral challenge to a final judgment after trial where additional issues come into
play.118
116
See, e.g. Stevenson v. State, 782 A.2d at 257 (“When a judge knows, or as soon as a judge
discovers, facts that would lead a reasonable person to question his or her impartiality in a
particular matter, it is essential that he or she promptly disclose that information. Following the
prompt disclosure of such information, a judge should engage in the two-part inquiry under Los.
In addition, prompt disclosure of such information permits the timely filing of a motion for recusal,
which would require the trial judge to engage in the objective analysis of the appearance of
impropriety mandated by Los.”).
117
See Oral Argument video at 6:30 – 8:39 https://livestream.com/accounts/5969852/events/
9376922/videos/214637158/player:
Meso’s Counsel: “[I]t is correct that if he had, if Vice Chancellor Parsons had
disclosed this, that the parties could have waived the recusal violation, but he never
did.”
118
For example, the Pennsylvania Supreme Court has held that “where the challenge is made for
the first time after verdict, in post-trial motions or in arguments and briefs before the appellate
courts, different considerations come into play.” Reilly v. Se. Pa. Transp. Auth., 489 A.2d 1291,
1301 (Pa. 1985). It stated in Reilly that:
Charges of prejudice or unfairness made after trial expose the trial bench to ridicule
and litigants to the uncertain collateral attack of adjudications upon which they have
placed their reliance. One of the strengths of our system of justice is that once
decisions are made by our tribunals, they are left undisturbed. Litigants are given
their opportunity to present their cause and once that opportunity has passed, we
are loathe to reopen the controversy for another airing, save for the greatest of need.
This must be so for the security of the bench and the successful administration of
justice. Accordingly, rules have developed for the overturning of verdicts and
judgments for after-acquired evidence. In our view, recusal motions raised after
verdict should be treated no differently than other after-acquired evidence situations
which compel the proponent to show that: 1) the evidence could not have been
brought to the attention of the trial court in the exercise of due diligence, and 2) the
existence of the evidence would have compelled a different result in the case.
36
With that backdrop, we turn to the Rule 60(b) analysis.
V. Rule 60(b) Analysis
Questions concerning the impartiality of a trial court potentially affect the
administration of justice in a fundamental way. It is important that our courts maintain the
trust and confidence of the public. Where such a challenge arises in the context of a
collateral attack, and in this case, five years after a full trial on the merits (and before a trial
judge who all agree harbored no actual bias), additional public policy considerations must
be considered.119 Court of Chancery Rule 60(b) is designed to address collateral challenges
generally. Various courts have considered additional factors when the collateral challenges
arise in the recusal/disqualification setting as explained next.
“Court of Chancery Rule 60(b) permits a party to seek relief from a final judgment
or order.”120 It recognizes six categories of justification for such relief. Rule 60(b)(4)
applies when “the judgment is void,” whereas Rule 60(b)(6) is the residual catchall,
applying to “any other reason justifying relief from the operation of the judgment.”121
Relief under this residual category requires a showing of an “extraordinary situation or
Id. Applying this test, the court dismissed the attempt “to force the recusal of the trial judge in
post-trial fashion” since there was no showing that the evidence relied on for recusal was
unavailable during trial in the exercise of due diligence or that the existence of the evidence would
have compelled a different outcome in the case. Id. at 1302.
119
Vice Chancellor Parsons entered final judgment in Meso v. Roche on June 25, 2014. Meso
filed its complaint seeking vacatur on February 28, 2019.
120
MCA, Inc. v. Matsushita Elec. Indus. Co., Ltd., 785 A.2d 625, 634 (Del. 2001); see also
Chaverri v. Dole Food Co., -- A.3d ---, 2021 WL 99505, at *6 (Del. Jan. 21, 2021) (“Superior
Court Rule 60 controls motions to vacate a judgment.”).
121
Del. Ct. Ch. R. 60(b)(6).
37
circumstances.”122 Even on such a showing, the movant is “obliged to act without
unreasonable delay” in making a Rule 60(b)(6) motion or relief will be denied.123
The decision whether to grant vacatur under Rule 60(b)(6) lies in the sound
discretion of the trial court and will be disturbed only for an abuse of that discretion.124 In
exercising its discretion, the trial court must consider two significant public policy
objectives, which may be in tension in the particular case before it: “[t]he first is ensuring
the integrity of the judicial process and the second, countervailing consideration is the
finality of judgments.”125 However, under Rule 60(b)(4), that discretion is extremely
limited, since “either a judgment is void or it is valid.”126
A. Rule 60(b)(4): The Underlying Judgment is Not Void
Meso contends that the Court of Chancery erred in dismissing its claim for relief
under Rule 60(b)(4). Rule 60(b)(4) allows a judgment to be vacated if the judgment is
“void.” Roche contends that the Vice Chancellor correctly held that recusal violations
render a judgment voidable, as opposed to void. We agree with Roche.
122
Jewell v. Div. of Soc. Servs., 401 A.2d 88, 90 (Del 1979). Recently we reiterated that, “[r]elief
under Rule 60(b)(6) is an extraordinary remedy which requires a showing of ‘extraordinary
circumstances.’” Chaverri, -- A.3d ---, 2021 WL 99505, at *6.
123
Schremp v. Marvel, 405 A.2d 119, 120 (Del. 1979) (per curiam).
124
Cox v. Gen. Motors Corp., 239 A.2d 706, 707 (Del. 1967).
125
MCA, Inc., 785 A.2d at 634.
126
Id. at 634, n.8 (quoting 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice and Procedure § 2862 (1995)); see also Carter v. Fenner, 136 F.3d 1000, 1005 (5th Cir.
1998) (“When, however, the motion is based on a void judgment under rule 60(b)(4), the [trial
court] has no discretion, the judgment is either void or it is not.”) (quoting Recreational Props.,
Inc. v. Sw. Mortg. Serv. Corp., 804 F.2d 311, 313–14 (5th Cir. 1986)).
38
Our decision in Copeland v. Manuel127 virtually controls Meso’s first issue on
appeal. Except for the most extreme cases, as discussed below, a challenge to the judge’s
impartiality sounds in voidability, not voidness, and is outside the bounds of Rule 60(b)(4).
In Copeland, two judges recused themselves during the conduct of a civil suit involving a
dentist, resulting in the case’s transfer to a third judge. The dentist ceased attending pretrial
conferences thereafter, and failed to attend the trial, resulting in a judgment against him.
After the plaintiff executed judgment and the scheduling of a sheriff sale of the dentist’s
property, the dentist belatedly moved under Rule 60(b) to vacate on the grounds that the
judgment impermissibly relied on pretrial orders from the recused judges.128
In denying relief, this Court reiterated the common law rule that “the judgments of
disqualified judges were deemed as voidable but not void.”129 We determined that a Rule
60(b) attack on the judge’s impartiality requires a showing of “extraordinary
circumstances,” suggesting that Rule 60(b)(6) applies and not Rule 60(b)(4).
Meso, citing Copeland, acknowledges in its opening brief that “mere recusal
violations do not create ‘void’ judgments under Rule 60(b)(4),”130 but argues that the
United States Supreme Court in Caperton v. A.T. Massey Coal Co. modified and
superseded this rule, rendering the judgment void “if the failure to recuse is so severe that
127
653 A.2d 304, 1994 WL 665257 (Del. Nov. 22, 1994) (TABLE).
128
Id. at *1.
129
Id. at *2.
130
See Op. Br. at 16 (“To be sure, mere recusal violations do not create ‘void’ judgments under
Rule 60(b)(4)”) (citing Copeland, 1994 WL 665257, at *2).
39
it deprives a litigant of due process.”131 But Caperton was a case on direct appeal from an
appellate court decision in which the allegedly conflicted jurist participated.132 The
Caperton Court made no mention of Rule 60(b) at all, and made no comment on when a
judgment is void.133
Moreover, Meso’s claim presents none of the factual scenarios that Caperton
identified as sufficiently extreme to presume a violation of due process. First, as Caperton
acknowledges, actual bias is disqualifying.134 Here, Meso does not argue that Vice
Chancellor Parsons was actually biased. In fact, it affirmatively agrees that he was not.
Other scenarios identified in Caperton that could constitute a violation of due process are
when “a judge ha[s] a financial interest in the outcome of a case,”135 or when a judge
“participat[es] in an earlier proceeding” in the case in the effective capacity as a
131
Id. (citing Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 877 (2009)).
132
Caperton, 556 U.S. at 875–76.
133
Accordingly, the Court of Chancery concluded that neither Caperton nor Williams v.
Pennsylvania, 136 S. Ct. 1899 (2016) changed the “traditional” view that failures to recuse fall
outside Rule 60(b)(4). Order at 12–13.
134
See Caperton, 556 U.S. at 881, 883 (although proof of actual bias is not required, “actual bias,
if disclosed, no doubt would be grounds for appropriate relief.”).
135
Caperton, 556 U.S. at 877–78 (discussing Tumey v. Ohio, 273 U.S. 510 (1927) (holding that
the defendant was deprived of due process where judge’s compensation was derived from fines
assessed in cases over which he presided)).
40
prosecutor.136 Another is when a judge “becomes embroiled in a running, bitter
controversy” with a litigant.137 None of those apply here.
The Supreme Court in Caperton also made clear that a failure to comply with a
state’s judicial conduct rules does not necessarily translate into a due process violation.
Constitutional principles operate on matters of recusal as well, since due process
“guarantees ‘an absence of actual bias’ on the part of a judge.”138 As the Supreme Court
explained, the Due Process Clause “demarks only the outer boundaries of judicial
disqualifications.”139 States remain free to impose more rigorous recusal standards than
what the Due Process Clause requires.140 Consequently, as the Supreme Court recognized,
136
Id. at 880–81 (discussing In re Murchison, 349 U.S. 133, 133 (1955) (holding that the judge
could not preside over the defendant’s trial for contempt when he had acted as a ‘one-man grand
jury’ in bringing the contempt charges.)).
137
Id. at 881 (discussing Mayberry v. Pennsylvania, 400 U.S. 455, 465 (1971) (judge ‘vilified’ by
defendant could not preside over defendant’s criminal contempt proceedings as “[n]o one so
cruelly slandered is likely to maintain that calm detachment necessary for fair adjudication.”)).
138
Will. v. Pennsylvania, 136 S. Ct. 1899, 1905 (2016). See also Caperton, 556 U.S. at 876
(“It is axiomatic that a fair trial in a fair tribunal is a basic requirement of due process.”) (internal
quotation and alteration omitted)); Los, 595 A.2d at 383 (“The requirement that judges be impartial
is a fundamental principle of the administration of justice. To that end, rules of disqualification
have evolved to ensure that no judge shall preside in a case in which he is not disinterested and
impartial. As a matter of due process, a litigant is entitled to neutrality on the part of the presiding
judge but the standards governing disqualification also require the appearance of impartiality.”).
139
Caperton, 556 U.S. at 889.
140
Id. See also Margoles v. Johns, 660 F.2d 291, 296 (7th Cir. 1981) (stating that “[a] litigant is
denied the fundamental fairness to which he is constitutionally entitled if the judge of his case is
unfairly biased against him. However, a litigant is not denied due process by either the
‘appearance’ of partiality or by circumstances which might lead one to speculate as to a judge’s
impartiality. A litigant is denied due process if he is in fact treated unfairly.”). Thus, the Seventh
Circuit found the standards set forth by the federal recusal statute to be “largely irrelevant” and the
cases based on it “not particularly helpful” to resolving the Rule 60(b)(4) motion to vacate the
41
most disputes over disqualification will be resolved without resort to the Constitution.141
Following Caperton, in United Student Aid Funds, Inc. v. Espinosa, the United
States Supreme Court emphasized that “Rule 60(b)(4) applies only in the rare instance
where a judgment is premised either on a certain type of jurisdictional error or on a
violation of due process that deprives a party of notice or the opportunity to be heard.”142
Thus, the courts have declined to find an unconstitutional risk of bias except in a few
extreme circumstances.143 Meso acknowledged throughout these proceedings that it has
no case supporting its view that a failure to recuse would fall within Rule 60(b)(4).144
judgment based on an alleged violation of due process because the federal recusal statute “goes
beyond ‘due process.’” Id.
141
Id. at 890.
142
559 U.S. 260, 271, 130 S. Ct. 1367, 1377, 176 L. Ed. 2d 158 (2010); see also id. at 270 (“[t]he
list of . . . infirmities” that will render a judgment void is “exceedingly short; otherwise, Rule
60(b)(4)’s exception to finality would swallow the rule.”).
143
See, e.g., Johnson v. Morales, 946 F.3d 911, 918 n.3 (6th Cir. 2020) (the Supreme Court “has
declined to find an unconstitutional risk of bias in all but a few narrow circumstances”); United
States v. Williams, 949 F.3d 1056, 1061–62 (7th Cir. 2020) (discussing the “limited set of
circumstances” where due process requires recusal); United States v. Richardson, 796 F. App’x
795, 799–800 (4th Cir. 2019) (unpublished decision) (rejecting due process claim that did not
involve any of the “extraordinary situation[s]” in which the Supreme Court has held that “the
Constitution requires recusal”) cert. denied 140 S. Ct. 2750 (2020).
144
See Oral Argument video at 17:58 – 18:15 https://livestream.com/accounts/5969852/events/
9376922/videos/214637158/player:
Meso’s Counsel: “To your first question, that is correct, we do not have a case
where there is a due process violation for an appearance of impartiality, of bias
under Caperton and Williams that rendered the judgment void.”
See also Order at 12 (observing that “Meso has not cited a single case where the Court vacated a
judgment under Rule 60(b)(4) for a judge’s alleged unconstitutional failure to recuse.”).
42
As a matter of pleading, Meso’s complaint falls well short of alleging any such
extreme circumstance. The Court of Chancery found that even though Meso had access to
the records in both the Meso v. Roche case as well as the DelCOG litigation, “the best the
complaint can muster is that Vice Chancellor Parsons ‘may’ have felt a ‘debt of gratitude’
to then-attorney Bouchard.”145 The court also concluded that “Meso’s vague and
conclusory allegations in paragraph 33 of the complaint that Vice Chancellor Parsons
‘may’ have had communications with then-attorney Bouchard concerning the federal
litigation that ‘touch[ed] [up]on’ Meso’s ‘case’ is not even close to being well-pled.”146
We agree with the trial court that Meso’s allegations, which are merely speculative and
conclusory, do not rise to the level of alleging unconstitutional bias that would render the
judgment void under Rule 60(b)(4).
B. Meso Fails to Plead Extraordinary Circumstances
Meso’s Rule 60(b)(6) argument fares no better. Where a litigant seeks Rule 60(b)(6)
relief based on a failure to recuse, we endorse and adopt the two-part test used by the Court
of Chancery. A litigant must show that she acted promptly and without delay to seek relief
upon learning of the alleged conflict, and that the alleged conflict was of an extraordinary
character as analyzed under the three Liljeberg factors. The Court of Chancery correctly
determined that Meso has done neither.
At the outset, the Court of Chancery examined the careful language in Meso’s
145
Id. at 7.
146
Id. at 22.
43
pleading as to its lack of knowledge of the dual representation. The relevant language in
Meso’s complaint is that “[t]he investigation confirmed that no one at Meso was aware of
Mr. Bouchard’s representation of Vice Chancellor Parsons.”147 The court found that Meso
had not pled that its agents, including its former counsel, were unaware of the
representation and, therefore, “Meso is not entitled to reasonable inferences flowing from
facts it has not pled.”148 We agree with the Court of Chancery’s decision not to infer facts
that were not pled.
But even setting aside that aspect of the delay analysis, the Court of Chancery found
Meso’s delay in seeking Rule 60(b)(6) relief unreasonable and incompatible with the
timeliness requirement. A party seeking relief under Rule 60(b)(6) is “obliged to act
without unreasonable delay.”149 Whether a delay is reasonable or not is a matter committed
to the sound discretion of the trial judge.150 To find an abuse of that discretion, “there must
be a showing that the trial court acted in an arbitrary and capricious manner.”151
147
App. to Op. Br. at A021 (Complaint).
148
Order at 18 (“With no allegation that its attorneys were ignorant of the unrelated and highly
publicized federal litigation, and now-Chancellor Bouchard’s representation of the members of the
Court of Chancery in that case, it is not reasonable to infer Meso has exercised diligence as is
required under Rule 60(b)(6) and our Supreme Court’s 2009 decision in Shipley vs. New Castle
County.”); see also Copeland, 1994 WL 665257, at *2 (“A party who fails to raise a
disqualification issue may not seek to set aside the results of a trial when knowledge of the
disqualification was known to the party during trial.”).
149
Schremp, 405 A.2d at 120.
150
Brown v. Comegys, 567 A.2d 34, 1989 WL 90728, at *1 (Del. July 31, 1989) (TABLE).
151
Tumlinson v. Advanced Micro Devices, Inc., 81 A.3d 1264, 1268 (Del. 2013) (quoting Spencer
v. Wal–Mart Stores E., LP, 930 A.2d 881, 887 (Del.2007)).
44
Meso makes no such showing. To the contrary, the record supports the court’s
decision not to credit Meso’s justification that its delay was founded on difficulties in
obtaining counsel. Of the year-long delay, Meso explains that it took half that time to
obtain lead counsel, and the other half to obtain local Delaware counsel. The trial court
was justifiably troubled by “Meso’s alleged wandering from firm to firm over the course
of a year -- particularly when it knew that the judgment it would seek to vacate was already
three years old.”152 Further, the trial court specifically noted that Meso’s eventually-
obtained local Delaware counsel was plaintiff’s counsel in the DelCOG Litigation.153 We
conclude that the Court of Chancery did not abuse its discretion in determining that, under
the particular circumstances of this case, Meso’s delay was unreasonable.
Where a Rule 60(b)(6) application is untimely, we need not reach the merits of the
underlying claim for relief,154 which in the case of an alleged failure to recuse is whether
the conflict was of an “extraordinary character,” considering the Liljeberg factors. But, for
the sake of completeness, we also find no error with that aspect of the Court of Chancery’s
analysis.
152
Order at 19. As we recently decided, a trial court is within its discretion to find a seven month
wait unreasonable if it finds the litigant’s justification for delay inadequate. Chaverri, -- A.3d ---
, 2021 WL 99505, at *9.
153
Order at 19 (“Although not ultimately dispositive, I take judicial notice of the fact that [Meso’s]
search coincidently led it to the same Delaware firm that represented the coalition in the federal
litigation.”).
154
Schremp, 405 A.2d at 120.
45
The three Liljeberg factors relevant in Rule 60(b)(6) motions for undisclosed
conflicts are (1) the risk of injustice to the parties in the particular case, (2) the risk that the
denial of relief will produce injustice in other cases, and (3) the risk of undermining the
public’s confidence in the judicial process.155
As to the first factor, Meso readily concedes that Vice Chancellor Parsons was
unbiased as to them.156 Absent Rule 60(b)(6) relief, Meso remains bound by an adverse
judgment entered against it but that judgment occurred following trial before a judge who
Meso admits harbored no actual bias. By contrast, the Court of Chancery noted that
granting relief inflicts on Roche the reopening of a case long-since completed, with the
attendant expense and difficulty of re-litigating that which was already litigated to
completion.157 The court found that Meso had failed to allege anything other than vague
and conclusory allegations relating to a risk of injustice. We agree with the Court of
Chancery’s assessment of the complaint and the conclusion that “[t]o support that serious
charge [of injustice] under Rule 8 and the Rule 12(b)(6) standard, Meso would need to
155
486 U.S. at 864. The United States Supreme Court’s analysis is fact-specific and allows room
for some element of harmless error. See id. at 862 (“As in other areas of the law, there is surely
room for harmless error committed by busy judges who inadvertently overlook a disqualifying
circumstance.”). Here, the trial court found that “Meso has not overcome the Liljeberg harmless
error admonition.” Order at 21.
156
E.g. App. to Ans. Br. at B349 (Motion to Dismiss Oral Argument Transcript) (“We [Meso] are
in no way impugning the motives, intentions, actions other than the failure to observe the rules by
Vice Chancellor Parsons. We have tried to make that clear in our papers. If we haven’t, I’d like
to make it clear this morning. We hold him in the highest possible regard.”).
157
Order at 21 (finding that, “[v]acatur would severely prejudice defendants who prevailed after
a five-day trial in Meso’s unsuccessful appeal to our Supreme Court,” and that, “on the other hand,
Meso has not well-pled that it will suffer an injustice if it is denied relief.”).
46
muster well-pled factual allegations, not mere speculation.”158 We agree that the first
Liljeberg factor thus weighs strongly against relief.
As to the second factor — the risk that denial of relief will produce injustice in other
cases — Meso concedes that other litigants are unlikely to suffer injustice absent relief.
Before the trial court, Meso stated its belief that, had Vice Chancellor Parsons disclosed
the conflict in every case for which then-Attorney Bouchard appeared before him, parties
in many cases would have waived the conflict and in the remaining cases presumed they
would have been satisfied by having other attorneys at his firm handle the case instead. 159
This concession weighs against a finding of extraordinary circumstances.
As for the third factor of undermining public confidence in the judicial process, for
judges’ “own” counsel in an unrelated matter to appear before them does have the potential
to create the appearance of bias before the public against which all authorities caution. We
agree with Meso that Vice Chancellor Parsons should have disclosed Mr. Bouchard’s
representation of him on the record. Our discussion above discusses generally other factors
that a court would consider in any recusal analysis if the parties, following disclosure on
the record, had chosen not to waive the conflict. We emphasize the importance of
maintaining the public’s confidence in the judicial system and of guarding against
situations where a judge’s impartiality might reasonably be questioned. But ultimately, in
158
Order at 22.
159
See id. at 349–50 (“Had notice been given, in many of these cases, I’m quite confident, parties
would have waived their rights. It wouldn’t have been all 25 cases. Other attorneys at then-
Attorney Bouchard’s firm could have handled them.”).
47
considering all three factors, we agree with the Vice Chancellor that “[o]n this complaint,
it is not reasonable to infer Vice Chancellor Parsons’ alleged judicial ethics violation --
even assuming it occurred -- caused any reasonably conceivable harm, much less serious
harm.”160
Accordingly, we agree with the trial court’s conclusion that these circumstances do
not give rise to relief under Rule 60(b)(4) or Rule 60(b)(6).
VI. Conclusion
For the forgoing reasons, we AFFIRM the judgment of the Court of Chancery.
160
Order at 23.
48