Page 1 of 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY NORTHERN DIVISION AT COVINGTON CASE NO. 2:16-CV-00028-WOB-JGW -Filed electronically- JANE DOE PLAINTIFF v. DEFENDANT, NORTHERN KENTUCKY UNIVERSITY’S MOTION TO RECUSE AND TO STAY PROCEEDINGS NORTHERN KENTUCKY UNIVERSITY, et al. DEFENDANTS ***** ***** ***** Comes now the Defendant Northern Kentucky University (“the University”), by and through counsel and pursuant to 28 U.S.C. § 455(a), and moves the presiding Judge to recuse from the further consideration of this matter and to stay any further proceedings. In support, the University states it was only recently informed that Plaintiff’s counsel hired the presiding Judge’s grandson as an attorney at his firm while this case was pending. Under these circumstances, the presiding judge’s impartiality might reasonably be questioned. In further support of its Motion, the University submits the attached Memorandum in Support of its Motion to Recuse pursuant to 28 U.S.C § 455(a) and Motion for Stay of all proceedings. The University has attempted to address the recusal issue prior to filing the instant Motion. Specifically, the University worked with the Court to schedule a telephonic or in-person conference to discuss the issue. However, Plaintiff’s counsel declined to agree to a conference until he had the opportunity to review the University’s Motion. The Court then sent the parties an email on April 4, 2017, stating it had been “advised that the grandson in question has no involvement whatsoever in the case before the Court and no financial interest therein,” as would require recusal under 28 U.S.C. § 455(b)(5). The Court also indicated it had been aware of the Judge’s grandson’s employment with Plaintiff’s counsel’s firm for some time as Judge Page 1 of 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY NORTHERN DIVISION AT COVINGTON CASE NO. 2:16-CV-00028-WOB-JGW -Filed electronically- JANE DOE PLAINTIFF v. DEFENDANT, NORTHERN KENTUCKY UNIVERSITY’S MOTION TO RECUSE AND TO STAY PROCEEDINGS NORTHERN KENTUCKY UNIVERSITY, et al. DEFENDANTS ***** ***** ***** Comes now the Defendant Northern Kentucky University (“the University”), by and through counsel and pursuant to 28 U.S.C. § 455(a), and moves the presiding Judge to recuse from the further consideration of this matter and to stay any further proceedings. In support, the University states it was only recently informed that Plaintiff’s counsel hired the presiding Judge’s grandson as an attorney at his firm while this case was pending. Under these circumstances, the presiding judge’s impartiality might reasonably be questioned. In further support of its Motion, the University submits the attached Memorandum in Support of its Motion to Recuse pursuant to 28 U.S.C § 455(a) and Motion for Stay of all proceedings. The University has attempted to address the recusal issue prior to filing the instant Motion. Specifically, the University worked with the Court to schedule a telephonic or in-person conference to discuss the issue. However, Plaintiff’s counsel declined to agree to a conference until he had the opportunity to review the University’s Motion. The Court then sent the parties an email on April 4, 2017, stating it had been “advised that the grandson in question has no involvement whatsoever in the case before the Court and no financial interest therein,” as would require recusal under 28 U.S.C. § 455(b)(5). The Court also indicated it had been aware of the Judge’s grandson’s employment with Plaintiff’s counsel’s firm for some time as Judge Case: 2:16-cv-00028-WOB-JGW Doc #: 202 Filed: 04/06/17 Page: 1 of 3 - Page ID#: 5591 cv- ”), by and In support, the
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT COVINGTON
CASE NO. 2:16-CV-00028-WOB-JGW
-Filed electronically-
JANE DOE PLAINTIFF
v. DEFENDANT, NORTHERN KENTUCKY UNIVERSITY’S
MOTION TO RECUSE AND TO STAY PROCEEDINGS
NORTHERN KENTUCKY UNIVERSITY, et al. DEFENDANTS
***** ***** *****
Comes now the Defendant Northern Kentucky University (“the University”), by and
through counsel and pursuant to 28 U.S.C. § 455(a), and moves the presiding Judge to recuse
from the further consideration of this matter and to stay any further proceedings. In support, the
University states it was only recently informed that Plaintiff’s counsel hired the presiding
Judge’s grandson as an attorney at his firm while this case was pending. Under these
circumstances, the presiding judge’s impartiality might reasonably be questioned. In further
support of its Motion, the University submits the attached Memorandum in Support of its Motion
to Recuse pursuant to 28 U.S.C § 455(a) and Motion for Stay of all proceedings.
The University has attempted to address the recusal issue prior to filing the instant
Motion. Specifically, the University worked with the Court to schedule a telephonic or in-person
conference to discuss the issue. However, Plaintiff’s counsel declined to agree to a conference
until he had the opportunity to review the University’s Motion. The Court then sent the parties an
email on April 4, 2017, stating it had been “advised that the grandson in question has no
involvement whatsoever in the case before the Court and no financial interest therein,” as would
require recusal under 28 U.S.C. § 455(b)(5). The Court also indicated it had been aware of the
Judge’s grandson’s employment with Plaintiff’s counsel’s firm for some time as Judge
Page 1 of 3
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT COVINGTON
CASE NO. 2:16-CV-00028-WOB-JGW
-Filed electronically-
JANE DOE PLAINTIFF
v. DEFENDANT, NORTHERN KENTUCKY UNIVERSITY’S
MOTION TO RECUSE AND TO STAY PROCEEDINGS
NORTHERN KENTUCKY UNIVERSITY, et al. DEFENDANTS
***** ***** *****
Comes now the Defendant Northern Kentucky University (“the University”), by and
through counsel and pursuant to 28 U.S.C. § 455(a), and moves the presiding Judge to recuse
from the further consideration of this matter and to stay any further proceedings. In support, the
University states it was only recently informed that Plaintiff’s counsel hired the presiding
Judge’s grandson as an attorney at his firm while this case was pending. Under these
circumstances, the presiding judge’s impartiality might reasonably be questioned. In further
support of its Motion, the University submits the attached Memorandum in Support of its Motion
to Recuse pursuant to 28 U.S.C § 455(a) and Motion for Stay of all proceedings.
The University has attempted to address the recusal issue prior to filing the instant
Motion. Specifically, the University worked with the Court to schedule a telephonic or in-person
conference to discuss the issue. However, Plaintiff’s counsel declined to agree to a conference
until he had the opportunity to review the University’s Motion. The Court then sent the parties an
email on April 4, 2017, stating it had been “advised that the grandson in question has no
involvement whatsoever in the case before the Court and no financial interest therein,” as would
require recusal under 28 U.S.C. § 455(b)(5). The Court also indicated it had been aware of the
Judge’s grandson’s employment with Plaintiff’s counsel’s firm for some time as Judge
Thank you all for your responses. We will set the conference for Friday, April 7 at 1:00 pm. You will receive an order. Anyone wishing to attend by phone should email me the number where you can be reached at that time.
Thank you.
Dawn L. Rogers Career Law Clerk toWilliam O. Bertelsman, United States District JudgeEastern District of Kentucky35 W. Fifth StreetCovington, KY 41011(859) 392-7900
Sj;2400 Chamber Center Drive, Suite 200Ft. Mitchell, KY 41017(P) 859.578.3060 | (F) 859.578.3061The preceding information is from the law finn of Murphy Landen Jones PLXC and may be protected by attomey/client privilege. If you believe it has been sent to you in error, do not read it. Please reply to the sender that you have received the message in error, then delete the message. Do not retain a copy. Thank you.
Kevin L. Murphy
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Judge Bertelsman has reviewed this communication and has directed me to state the following.
Judge will hold a conference before the end of the week regarding this matter, as well as the status of settlement negotiations. Counsel who are out of town may attend by phone.
Counsel are directed to respond to this email by the end of the business day tomorrow, April 5, 2017, regarding their availability for the remainder of the week, stating whether they will be available in person or via telephone.
The Court will then put on an order setting the conference.
Dawn L. Rogers Career Law Clerk toWilliam O. Bertelsman, United States District JudgeEastern District of Kentucky35 W. Fifth StreetCovington, KY 41011(859) 392-7900
Thanks for your email. NKU has been attempting to set a conference (telephonically or in person) with the court to discuss the recusal issue and a briefing schedule before filing the Motion based on our understanding that the court preferred proceeding in that manner. Late this morning, Plaintiffs counsel stated that we should go ahead and file Motion since he did not know what we planned to address at the conference. He indicated we could discuss a briefing schedule after he read the Motion. Under these circumstances, and absent further direction from the court, NKU will file the Motion to Recuse.
Respectfully,
Jeff
Jeffrey C. MandoADAMS, STEPNER, WOLTERMANN & DUSING, PLLC.40 West Pike StreetCovington, KY 41011(859) 394-6200(859) 392-7263 (FAX)
From: Dawn [email protected] fmailtoiDawn [email protected] Sent: Tuesday, April 04, 2017 11:06 AM To: Jeff MandoSubject: Fw: Doe v. NKU, 16-28 - recusal
The Court has been informed by counsel for NKU that NKU is considering filing a motion to recuse Judge Bertelsman based upon the fact that one of his grandsons is employed as an associate at Murphy Landen Jones, PLLC ("MLJ"). Counsel for NKU has been attempting to find a time convenient to everyone to schedule a conference with the Court on this matter.
In light of this, Judge asked me to share with you the following information.
As you may be aware, 28 U.S.C. § 455 provides the statutory basis for recusal of federal judges. Judge Bertelsman reviewed this statute carefully, both before his grandson accepted employment at MLJ, and within the last week. In pertinent part, the statute provides:
(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in anyproceeding
2
Case: 2:16-cv-00028-WOB-JGW Doc #: 202-3 Filed: 04/06/17 Page: 5 of 7 - Page ID#: 5609in which his impartiality might reasonably be questioned.
(b) He shall disqualify himself in the following circumstances:
***
or the(5) He or his spouse, or a person within the third degree of relationship to either of them,
spouse of such person:
***
the
(ii) Is acting as a lawyer in the proceeding.
(iii) Is known by the judge to have an interest that could be substantially affected by
outcome of the proceeding.
Courts interpreting this statute hold, seemingly uniformly, that the employment of a child of a judge in a law firm representing a party before the Court does not require recusal where the child is not a partner and is not working on the case. See, e.g., In re Kansas Public Employees Retirement Sys., 85 F.3d 1353,1364-65 (8th Cir. 1996); Benko v. Judges' Retirement Sys., No. 97-1241,1998 WL199798, at *4 (6th Cir. 1998); United States ex rel. Weinberger v. Equifax, Inc., 557 F.2d 456,463-64 (5th Cir. 1977); Faith Temple Church v. Town of Brighton, 348 F. Supp.2d 18,19-21 (W.D.N.Y. 2004); United States v. Edwards, 39 F. Supp.2d 692, 713-15 (M.D. La. 1999); Wilmington Towing Co., Inc. v. Cape Fear Towing Co., Inc., 624 F. Supp.2d 1210,1211-12 (E.D.N.C. 1986).
The Court is advised that the grandson in question has no involvement whatsoever in the case before the Court and no financial interest therein.
We hope this information is helpful to the issues under consideration.
Dawn L. Rogers Career Law Clerk toWilliam O. Bertelsman, United States District JudgeEastern District of Kentucky35 W. Fifth StreetCovington, KY 41011(859) 392-7900
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(859)394-6200 or by return email and delete this message, along with any attachments, from your computer. Thank you.
From: Dawn [email protected] rmailto:Dawn [email protected] Sent: Tuesday, April 04, 2017 11:06 AM To: Jeff MandoSubject: Fw: Doe v. NKU, 16-28 - recusal
The Court has been informed by counsel for NKU that NKU is considering filing a motion to recuse Judge Bertelsman based upon the fact that one of his grandsons is employed as an associate at Murphy Landen Jones, PLLC ("MU"). Counsel for NKU has been attempting to find a time convenient to everyone to schedule a conference with the Court on this matter.
In light of this, Judge asked me to share with you the following information.
As you may be aware, 28 U.S.C. § 455 provides the statutory basis for recusal of federal judges. Judge Bertelsman reviewed this statute carefully, both before his grandson accepted employment at MU, and within the last week. In pertinent part, the statute provides:
(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding
in which his impartiality might reasonably be questioned.
(b) He shall disqualify himself in the following circumstances:
***
or the(5) He or his spouse, or a person within the third degree of relationship to either of them,
spouse of such person:
***
the
(ii) Is acting as a lawyer in the proceeding.
(iii) Is known by the judge to have an interest that could be substantially affected by
outcome of the proceeding.
Courts interpreting this statute hold, seemingly uniformly, that the employment of a child of a judge in a law firm representing a party before the Court does not require recusal where the child is not a partner and is not working on the case. See, e.g., In re Kansas Public Employees Retirement Sys., 85
at *4 (6th Cir. 1998); United States ex rel. Weinberger v. Equifax, Inc., 557 F.2d 456, 463-64 (5th Cir. 1977); Faith Temple Church v. Town of Brighton, 348 F. Supp.2d 18,19-21 (W.D.N.Y. 2004); United States v. Edwards, 39 F. Supp.2d 692, 713-15 (M.D. La. 1999); Wilmington Towing Co., Inc. v. Cape Fear Towing Co., Inc., 624 F. Supp.2d 1210,1211-12 (E.D.N.C. 1986).
The Court is advised that the grandson in question has no involvement whatsoever in the case before the Court and no financial interest therein.
We hope this information is helpful to the issues under consideration.
Dawn L. Rogers Career Law Clerk toWilliam O. Bertelsman, United States District JudgeEastern District of Kentucky35 W. Fifth StreetCovington, KY 41011(859) 392-7900
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