Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

The Mortgage Specialists, Inc., et al. v. Nh Banking Department

May 10, 2013

THE MORTGAGE SPECIALISTS, INC., ET AL.
v.
NH BANKING DEPARTMENT, COMMISSIONER



The opinion of the court was delivered by: Joseph N. Laplante United States District Judge

RECUSAL ORDER

Before the court is the plaintiffs' motion for the court to recuse itself from the above captioned matter (doc. no. 20). The motion lacks merit, and is denied. For other reasons, however, the court sua sponte recuses itself.

The plaintiffs advance two reasons in support of their request for recusal: (1) the court, between 1990 and 1993, was employed as an associate in a law firm where Attorney L. Jonathan Ross worked as a partner; and (2) the court has exhibited "bias and prejudice" against the plaintiffs and their case. Although Attorney Ross (who represented one of the plaintiffs in his divorce) is not a party in this litigation, plaintiffs' counsel has represented that he is a potential witness based on his role in a rather vast civil conspiracy alleged by the plaintiffs.

Attorney Ross's involvement in the case, as a basis for recusal, requires little discussion. It has been 20 years since the court worked with or for Attorney Ross. The court and Attorney Ross have only infrequent contact, sometimes going years without running across each other or speaking. While the court holds Attorney Ross in high professional regard, the same can be said for many members of the New Hampshire bar. The court's only contact with Attorney Ross in recent years has involved their participation in efforts, through various entities affiliated with the bench and bar, to increase access to justice for the indigent. Nothing about this relationship requires this court's recusal.

The plaintiffs' allegation of "bias and prejudice," however, requires further discussion. It is true, as represented in the plaintiffs' motion, that the court referred plaintiffs' counsel to the Rules of Professional Conduct during a telephone conference regarding the plaintiffs' request for temporary and preliminary injunctive relief. That suggestion, however, was not based on skepticism regarding the plausibility of the civil conspiracy alleged in the complaint, as plaintiffs suggest, or any other bias or prejudice toward their case.*fn1 Rather, it was suggested in response to counsel's repeated claims of ignorance regarding the facts alleged in that complaint, and further claims that he was not its author (although the amended complaint bears his signature) and was new to both his employment in the plaintiffs' company and his representation of the company in this litigation. These claims of ignorance and disavowal of responsibility for the allegations in this lawsuit are difficult to square with counsel's duty to inform himself of the facts of his clients' case and only press non-frivolous claims, see N.H.

R. of Prof. Conduct 3.1, and his duty of candor toward the court, see N.H. R. of Prof. Conduct 3.3. It was not the court's intention to threaten or attempt to intimidate plaintiffs' counsel, or to dissuade him or the plaintiffs from further pursuing this case.

Nonetheless, the court's careful review of the complaint reveals that there are several other New Hampshire attorneys alleged to have some role in the civil conspiracy, at least one of whom (unlike Attorney Ross) is on this court's recusal list. While the court is certain that it could preside impartially over this case, in an abundance of caution and deference to the applicable standards set forth under 28 U.S.C. § 455(a) and Canon 3(c)(1) of the Code of Conduct for United States Judges, it sua sponte recuses itself from this case.

SO ORDERED.

...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.