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K & F Holdings, Ltd. v. Rouse'S Enterprises, L.L.C.

United States District Court, M.D. Louisiana

September 21, 2017




         This matter is before the Court on the Plaintiffs' Motion for Recusal of the Hon. Shelly D. Dick.[1] Defendants, Rouse's Enterprises, L.L.C., et al., (“Defendants”) oppose the Motion.[2] For the following reasons, the motion will be GRANTED.[3]


         Plaintiffs own and operate a burrito restaurant chain known as “Izzo's”. Plaintiffs allege that in February of 2012, Rouse's, the Defendant grocery store chain, “had somehow stolen possession” of Izzo's proprietary food recipes and that Izzo's “secret, confidential, and proprietary Recipe Book [was found] to be on Rouse's premises, behind the counter of a similarly styled restaurant that appeared to utilize the same cooking methods utilized by Izzo's.”[4] Plaintiffs further allege that Defendant Rouse's “harbored significant and substantial malice towards Izzo's…”[5] and engaged in a series of practices which had the effect of excluding Izzo's from developing or opening restaurants at certain identified sites.[6]

         On April 15, 2016, Plaintiffs sued Rouse's in state court, alleging (1) violation of Louisiana Unfair Trade Practices and Consumer Protection Law, La. R.S. § 51:1401 et seq. (“LUTPA”); (2) state law tort claims, including tortious interference with a contract, product defamation, and civil conspiracy; (3) trademark infringement under state law; (4) conspiracy under state law; and (5) violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962 et seq. (“RICO”).[7]

         On April 29, 2016, Defendants removed the action pursuant to 28 U.S.C. 1441(a) based on Plaintiffs' federal civil RICO allegations. On May 27, 2016, Rouses filed a Motion to Dismiss.[8] While the Motion to Dismiss was pending, Plaintiffs moved to remand the matter to state court.[9] On November 22, 2016, this Court denied the Plaintiffs' Motion to Remand finding that “Plaintiffs' Petition clearly asserts a federal claim, the court finds that it has original jurisdiction pursuant to 28 U.S.C. § 1331 and removal was proper under 28 U.S.C. § 1441(a).”[10] The Court maintained supplemental jurisdiction over the state law claims.[11]

         Thereafter, on February 2, 2017, [12] this Court granted in part and denied in part Defendant Rouse's Motion to Dismiss. Immediately thereafter, Plaintiffs' counsel commenced a campaign to disqualify the undersigned. The grounds which Plaintiffs urge require disqualification are that Plaintiffs' counsel, Robert B. Evans, III, represented another litigant in a legal malpractice claim against the successor to the undersigned's former law firm and former law partner.[13] The malpractice suit against the successor law firm to the undersigned's former law firm and the undersigned's former partner was filed on November 2, 2015 by Plaintiff's counsel on behalf of parties not involved in any way in these proceedings (“Nuschler I Suit”).[14] The Nuschler I Suit was fully and finally settled on May 18, 2016[15], just weeks after the captioned matter was removed to this District Court. However, the motion for recusal was not filed until February, 2017, 9 months after removal, but a mere 2 weeks after the Court granted the Defendants' Motion to Dismiss in part.[16]


         Immediately following partial dismissal of Plaintiffs' claims, Evans contacted Chambers, ex parte, to request an extension of time to request a new trial or reconsideration of the partial dismissal. Evans was instructed by Chambers staff to file a Motion for status conference.[17] Upon Plaintiffs' Motion for an expedited status conference[18], the Court scheduled a telephone status conference for the next morning.[19]Both parties participated in a telephone status conference on February 9, 2017, at which time the Plaintiffs requested an extension of the Rule 59 deadlines due to Evans' stated medical needs.[20] The Court granted an extension of the Rule 59 briefing dates as requested.[21] Briefing deadlines for the submission of memorandum in support of a new trial and/or reconsideration of the partial dismissal ruling were extended to March 15, 2017. On February 21, 2017, Plaintiffs filed two (2) Motions to Recuse, one pursuant 28 U.S.C §144 and one pursuant to 28 U.S.C. §455.[22]

         The timing of these Motions to Recuse were suspect at the least. Plaintiffs knew of the alleged bias and/or appearance of impropriety 9 months before filing recusal motions, but waited until 2 weeks after an adverse ruling to raise the issue.[23] The clear untimeliness notwithstanding, the Court denied the initial recusal motions for lack of merit.[24]


         The Court denied the Plaintiffs' Motion to reconsider the Court's partial dismissal of claims on June 27, 2017.[25] Immediately thereafter, Plaintiffs' counsel resorted to suing the undersigned Judge personally in what can only be seen as a blatant effort to provoke recusal.[26] The instant Motion for recusal is brought under 28 U.S.C. §455(a) which provides that “[a]ny justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Plaintiffs argue that recusal is required “on the grounds that bias against undersigned [Counsel] for filing a lawsuit against [the undersigned Judge] will demonstrate bias against the (party) Plaintiffs”.[27] Plaintiffs argue that the Court's impartiality must be questioned because Plaintiffs' counsel, Robert Evans, III, represents other parties in other lawsuits who have sued the Judge.


         Under 28 U.S.C. §455(a), disqualification is required if a reasonable person who knew the circumstances would question the judge's impartiality, even though no actual bias or prejudice has been shown.[28] “A party introducing a motion to recuse carries a heavy burden of proof; a judge is presumed to be impartial, and the party seeking disqualification bears the substantial burden of proving otherwise.”[29]

         A challenge to a judge's presumed impartiality is subject to an objective test which requires a judge to recuse herself when a reasonable person, knowing all the relevant facts, would harbor doubts about the judge's impartiality.[30] In the context of a motion to recuse, the reasonable person standard contemplates a well-informed, thoughtful, and objective observer, rather than the hypersensitive, cynical, and suspicious person.[31] The Court has a duty to recuse itself where any of the statutory grounds set forth in § 455 exist; however, there is a corresponding duty not to do so if cause for recusal has not been shown. “Judges have an obligation to litigants and their colleagues not to remove themselves needlessly, because a change of umpire in mid-contest may require a great deal of work to be redone . . . and facilitate[s] judge-shopping.”[32]

         A court's ruling against a party almost never constitutes a valid basis for recusal based on judicial bias.[33] Likewise, lawsuits or complaints filed against the Judge do not ordinarily require recusal. In Jones v. Pittsburgh Nat'l. Corp.[34] the court of appeal upheld the district court's denial of a motion to recuse where the plaintiff had filed a complaint against the district Judge with the Judicial Inquiry Board. In this case, the lawyer for another party in a different case before a different court, not a party before the Court, has filed a lawsuit against the undersigned. Bias for or against an attorney, who is not a party before the court, is not enough to require disqualification unless it can also be shown that such a controversy would demonstrate a bias for or against the party itself.[35] In order for bias against an attorney to require disqualification of the trial judge, it must be of a continuing and personal nature and not simply bias against the attorney or in favor of another attorney because of his conduct.[36] It is not lost on the Court that the attorney in this case is attempting to create bias of a continuing and personal nature.

         A judge is not disqualified just because a litigant sues or threatens to sue him/her.[37]A fortiori, a judge is not disqualified when a litigant's attorney, representing other parties not before the Court, sues or threatens to sue him/her. Obviously, neither a litigant, nor its counsel, should be permitted to judge shop by making written attacks upon, or filing a complaint against, the assigned judge.[38]

         Moreover, judges need not recuse themselves merely because they are named as defendants in a meritless action, [39] or merely because they have been personally attacked by a party in other proceedings.[40] “A party cannot force disqualification by attacking the judge and then claiming that these attacks must have caused the judge to be biased against him.”[41] Courts must take care to ensure that motions for recusal are not abused as a litigation tactic.[42]

         In deciding whether a lawsuit filed against a judge warrants recusal, a court must consider the underlying purpose and merit of the lawsuit.[43] In addition to lacking merit, the lawsuit brought by Plaintiffs' counsel against the undersigned Judge (“Nuschler II Suit”)[44] is untimely on its face.[45] Additionally, the Nuschler II Suit against the undersigned seeks the identical relief sought and recovered by the plaintiffs via settlement of a near identical suit against the successor to the undersigned's former law firm and former partner.[46]

         The Nuschler II Suit against the undersigned is a transparent attempt to create bias and hostility in an effort to provoke disqualification. Again, the timing of the most recent recusal motion, just five (5) days after the Court denied reconsideration of its partial dismissal Order, is a clear indication of the real motive behind the instant Motion.[47]

         V. CONCLUSION

         Given the machinations to which Plaintiffs' counsel has resorted to poison and impugn the Court's impartiality, the Court finds that a “thoughtful and objective observer” might question the Court's impartiality going forward. While there remains no evidence of actual bias, a reasonable person might harbor doubts about the Court's ability to remain impartial. There comes a time when the well water, otherwise sweet, becomes so poisoned by external pollutants that the water becomes unpotable. This metaphor is apropos here. While the Court is loath to recuse and thereby reward Plaintiffs' counsel for what ...

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