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.

In re Oil Spill by Oil Rig "Deepwater Horizon" in Gulf of Mexico

United States District Court, E.D. Louisiana

November 8, 2019

In Re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010 Applies to: Salvesen
v.
Feinberg, et al. 11-02533, Pinellas Marine Salvage Inc., et al.
v.
Feinberg, et al. 11-01987, Ditch
v.
Feinberg, et al. 13-06014, Donovan
v.
Herman 19-12014

         SECTION: J(2)

          MAG. JUDGE WILKINSON

          ORDER & REASONS

          BARBIER JUDGE

         Before the Court are two “Motions to Recuse the Honorable Carl J. Barbier.” (Rec. Docs. 25908, 25927). The first motion (Rec. Doc. 25908) was filed by the plaintiffs in member cases 11-02533, 11-01987, and 13-06014, all of whom are represented by Brian Donovan (“Donovan”). This Order will use “Donovan Clients” to refer to these plaintiffs. The second motion (Rec. Doc. 25927) was filed by Donovan on behalf of himself as the plaintiff in member case 19-12014.[1] This Order will use “Movants” to refer collectively to the Donovan Clients and Donovan. Steve Herman (“Herman”), who is the defendant in case no. 19-12014 as well as Plaintiffs' Co-Liaison Counsel and a member of the Plaintiffs' Steering Committee in MDL 2179 (both per this Court's appointment), filed an opposition (Rec. Doc. 26014), to which Movants have replied (Rec. Doc. 26022). The Court has considered these motions without oral argument.

         The motions are substantively identical. Movants press two grounds for recusal. First, they argue recusal is required under 28 U.S.C. § 455(b)(4)[2] because I owned debt instruments issued by Halliburton and Transocean-companies that are not parties to any of Movants' cases, although they have been named as defendants in many other cases consolidated with MDL 2179-which I sold in June of 2010. Second, Movants argue recusal is required under 28 U.S.C. § 455(a), [3] claiming that my impartiality might be reasonably questioned based on various events, rulings, or statements.

         I. The Donovan Clients' Motion Is Untimely

         The first motion, the one filed by the Donovan Clients, is untimely. “The general rule on timeliness requires that ‘one seeking disqualification must do so at the earliest moment after knowledge of the facts demonstrating the basis for such disqualification.'” United States v. Sanford, 157 F.3d 987, 988 (5th Cir. 1998) (quoting Travelers Ins. Co. v. Liljeberg Enter., Inc., 38 F.3d 1404, 1410 (5th Cir. 1994)); see also Hill v. Schilling, 495 Fed.Appx. 480, 483-84 (5th Cir. 2012) (unpublished per curiam).

         A. § 455(b)(4)

         The Donovan Clients' argument regarding § 455(b)(4) relies entirely on a Fifth Circuit opinion from 2010 that concerned the same debt instruments at issue here. See In re Cameron Int'l Corp., 393 Fed.Appx. 133 (5th Cir. 2010) (unpublished per curiam). Following the April 20, 2010 blowout of the Macondo Well but before MDL 2179 was created on August 10, 2010, certain defendants moved for my recusal on the grounds that the Halliburton and Transocean debt instruments constituted “financial interest[s] . . . in a party to a proceeding” under § 455(b)(4). Id. at 134 & n.6. I denied these motions, and defendants petitioned the Fifth Circuit for a writ of mandamus. The Circuit upheld my conclusion that the debt instruments did not constitute a financial interest in a party, but it noted in dicta that recusal may be required under § 455(b)(4) if the debt instruments are determined to be either “financial interest[s] in the subject matter in controversy” or “any other interest that could be substantially affected by the proceedings.” Id. at 135-36. However, it “express[ed] no opinion as to the merits of either ground.” Id. at 136. Instead, the Fifth Circuit denied the petitions without prejudice to the defendants' ability to present these arguments to me so that I may rule on them in the first instance. Id.

         In re Cameron was decided on July 22, 2010. In the following weeks, the eponymous defendant filed and then withdrew a motion for judicial disclosure. (Rec. Docs. 55, 67). Aside from that, no party in MDL 2179 has pursued the alternative arguments identified in Cameron until the Donovan Clients filed their motion on July 29, 2019. I have been assigned to the Donovan Clients' cases since 2011 and 2013, when they were consolidated with MDL 2179. Consequently, if the Donovan Clients believed that my prior ownership of these debt instruments warranted recusal under § 455(b)(4), such evidence and argument should have been presented shortly after those actions were consolidated with MDL 2179, not in 2019. See Sanford, 157 F.3d at 988; Hill, 495 Fed.Appx. at 483-84.

         B. § 455(a)

         The Donovan Clients' arguments regarding § 455(a) are also untimely. The Donovan Clients invoke § 455(a) based on events that allegedly occurred between August of 2010 and March of 2018. Even if these events supported the instant motions to recuse-they do not-the Donovan Clients (who, again, have had suits in the MDL since 2011 and 2013) should not have waited until July 2019, over a year after the last event and years after other events, to file their motions to recuse.

         For these reasons, the Donovan Clients' motion (Rec. Doc. 25908) is untimely.

         II. Both Motions Lack Merit

         The Court assumes but does not decide that the second motion to recuse, the one filed by Donovan himself, is timely.[4] Nevertheless, this motion is meritless. Furthermore, because the Donovan Clients' arguments are identical to Donovan's, their motion is also meritless, in addition to being untimely.

         A. § 455(b)(4)

         Seizing on the dicta in In re Cameron, supra, Movants argue that recusal under § 455(b)(4) is required because the Halliburton and Transocean debt instruments I owned nine years ago qualify as “financial interest[s] in the subject matter of the controversy” or “any other interest that could be substantially affected by the outcome of the proceeding.” However, Movants make absolutely no factual, legal, or evidentiary showing that these debt instruments actually are “financial interest[s] in the subject matter of the controversy” or “could be substantially affected by the outcome of the proceeding.” Moreover, the Court fails to understand how these debt instruments could qualify as such. Neither Halliburton nor Transocean is a party to any of Movants' cases, and Movants' cases were filed after I divested myself of the debt instruments. Consequently, recusal is not required under § 455(b)(4).

         B. § 455(a)

         Section 455(a) mandates recusal “in any proceeding in which [the judge's] impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). The Supreme Court has explained that § 455(a) is “evaluated on an objective basis, so that what matters is not the reality of bias or prejudice but its appearance.” Liteky v. United States, 510 U.S. 540, 548 (1994). However, the appearance of partiality is determined from the viewpoint of a “‘well-informed, thoughtful and objective observer, rather than the hypersensitive, cynical, and suspicious person.'” Andrade v. Chojnacki, 338 F.3d 448, 455 (5th Cir. 2003) (quoting United States v. Jordan, 49 F.3d 152, 156 (5th Cir. 1995)). Also, “review should entail a careful consideration of context, that is, the entire course of judicial proceedings, rather than isolated incidents.” Id. (citation omitted). “Finally, the origin of a judge's alleged bias is of critical importance.” Id. Under the so-called “extrajudicial source doctrine, ” “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.” Litkey, 510 U.S. at 555. “[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they ...


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.