Monday, December 5, 2011

Former Magistrate Judge Everingham's Consulting With Plaintiff Does Not Require Recusal If Such Consulting is Unknown to the Presiding Judge

The court denied defendants' motion to recuse under a local rule requiring recusal when a former judge of the district appears as counsel, but only because plaintiff withdrew its "notice of affiliation" (announcing that a former magistrate judge would be consulting with plaintiff on the case) and agreed to screen the former magistrate judge from the case. "While consulting with a client does not constitute an actual appearance on behalf of that client, the filing of a Notice of Affiliation with the Court has the same effect of advising the Court that the former colleague is involved in the case and raises the same concerns that a formal appearance would. Put simply, by filing the notice and informing the Court of [the former magistrate's] potential involvement in the case, such notice has the same potential for creating an appearance of impropriety as an actual appearance. Again, it is the filing of the Notice that creates the potential appearance of impropriety which would trigger recusal in this case, not the actual consulting. . . . [Plaintiff] has continually screened [the former magistrate judge] from this case, has agreed to withdraw the Notice of Affiliation and to continue screening him from the case. Accordingly, there is no basis for recusal and the motion is denied."

JuxtaComm-Texas Software, LLC v. Axway, Inc., et. al.
, 6-10-cv-00011 (TXED December 1, 2011, Order) (Davis, J.)

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