UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK _______________________________________________ SHELLONNEE B. CHINN, Plaintiff,
-vs-
ELMWOOD FRANKLIN SCHOOL, ET AL
PLAINTIFF’S APPLICATION FOR MAGISTRATE JUDGE’S RECUSAL ON PENDING MOTION PURSUANT TO 28 U.S.C. § 455(a)
Docket No.: 1:15-cv-00938-FPG-JJM
Defendants. _______________________________________________
PLAINTIFF’S APPLICATION FOR MAGISTRATE JUDGE’S RECUSAL ON PENDING MOTION PURSUANT TO 28 U.S.C. § 455(a) 1. Plaintiff, Shellonnee B. Chinn, respectfully moves the Court for the recusal of Magistrate Judge, the Honorable Jeremiah J. McCarthy solely from the pending Motion to Quash (docket item # 91) filed on May 10, 2018 by the law firm of Phillips Lytle, LLP on behalf of non-party Roswell Park Comprehensive Cancer Institute pursuant to 28 U.S.C. § 455(a) on the basis that the Judge’s long tenure at the law firm of Phillis Lytle, LLP ending immediately upon his judicial appointment; the possibility that the Judge, as a partner in the law firm, may benefited from the law firm’s work for Roswell Park; the lack of an adequate disclosure of a possible conflict because of his past employment on the record; a nearly total disregard for an
opportunity for plaintiff to question even the appearance of impropriety to decide one motion; all within the context of a highly racially segregated City of Buffalo 1, a community that has historically relied on the federal court for redress of constitutional wrongs; could give rise to reasonable minds to conclude that Judge McCarthy deciding the pending motion would appear improper and/or his impartiality might reasonably be questioned. 2. Plaintiff has great respect for Magistrate Judge McCarthy and so it is with trepidation, and of great concern, that she raises the issue of recusal based on the appearance of impropriety, which is as important as impartiality itself. Judicial impartiality, and the appearance of impartiality, not only protects litigants’ due process rights but also works to maintain public confidence in the justice system. Recusal may be warranted where, as here in Buffalo, New York, a judge may not have, or shown to have, an actual bias but reasonable questions about appearance of impropriety could undermine local confidence in the courts. See, Mistretta v. United States, 48 U.S. 361, 407 (1989); see also, Rippo v. Baker, 137 S.Ct. 905, 907 (2017). Background Over the past five decades African-Americans, residents of the City of Buffalo, have relied heavily on the federal courts to vindicate and seek redress for violation of federally guaranteed civil rights in cases involving nearly every major local government institution, including the police department, fire department, jails, and public schools. Maintaining faith in the impartiality of the federal court is extremely important to the plaintiff, as a matter of public policy, and community responsibility. Over the past three-year status reports and feature stories about the issues arising in this case have appeared in local newspapers, on local television and radio broadcasts and on National Public Radio. Recognizing that the threshold for disappointment amongst the African-American community in Buffalo, particularly with public institutions, plaintiff seeks to avoid even the appearance of impropriety in this matter for the sake of community and to avoid dissuading individuals from the local AfricanAmerican community from seeking redress in the federal courts.
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3. On October 29, 2015 plaintiff, an African-American woman, commenced this action against thirty-one defendants alleging, inter alia, invidious racial, gender and age discrimination and wrongful termination arising out of a hostile work environment at the Elmwood Franklin School in Buffalo, New York. The complaint also alleges conspiracy to deprive well established constitutional rights by the defendants and seeks compensatory and punitive damages. 4. On or about February 12, 2018, the Honorable Jeremiah J. McCarthy was assigned as Magistrate Judge to this case. Plaintiff appeared at two pre-trial conferences before Judge McCarthy: the first on March 8, 2018 and the second on April 3, 2018. 5. On or about April 3, 2018, Judge McCarthy issued a Scheduling Order for this case. 6. After the Scheduling Order was issued and notice provided to all parties, plaintiff served two non-party subpoena duce tecum to the Roswell Park Comprehensive Cancer Center with May 11, 2018 return dates. A copy of the two subpoenas are annexed hereto as EXHIBIT A. 7. At all relevant times, the basis for the subpoenas, in large part, is because, among the named defendants are Mr. Michael Joseph, who serves as Chairman of the Roswell Park Comprehensive Cancer Center and past President of the Board of Trustees of the Elmwood Franklin School and information sought regarding hiring, promotion and employment practices at the Roswell Park Comprehensive Cancer Center that may mirror hiring, promotion and employment practices at the Elmwood Franklin School. 8. On Thursday, May 10, 2018 at approximately 3:52 pm plaintiff received a copy, by
email, of an email and letter by attorney Andrew P. Devine from the law Firm of Phillips Lytle, LLP, addressed to Judge McCarthy, indicating that they are representing the Roswell Park Comprehensive Cancer Center; that they have filed a Motion to Quash plaintiff’s two subpoenas served upon Roswell; and that a courtesy copy of the motion papers would be delivered to Judge McCarthy chambers. All parties to this action were copied on this email. This email and letter does not appear on the docket and is annexed hereto as EXHIBIT B. 9. Later in the afternoon of Thursday, May 10, 2018, at approximately 5:16 pm plaintiff received an email from Judge McCarthy, wherein he discloses that immediately prior to his current judgeship he was a partner in the law firm of Phillips Lytle, LLP; that he had no recollection of performing any work for Roswell Park Comprehensive Cancer Center while at Phillips Lytle; and that he would be fair and impartial to all sides in this action. All parties to this action were copied on this email. A copy of Judge McCarthy’s May 10, 2018 email communication does not appear on the docket and is annexed hereto as EXHIBIT C. 10. On the morning of Friday, May 11, 2018 at approximately 7:45 am, plaintiff received by email a text Order from Judge McCarthy detailing a briefing schedule for the pending Motion to Quash. All parties to this action were copied on this email. A copy of Judge McCarthy’s May 11, 2018 text Order does appear on the docket as item # 94 and is annexed hereto as EXHIBIT D. 11. On Friday, May 11, 2018 at approximately 3:06 pm plaintiff sent an email
communication to Judge McCarthy expressing her concern about an appearance of impartiality and kindly asked to Judge McCarthy to recuse himself from the motion filed on Thursday, May 11, 2018 by the law firm of Phillips Lytle, LLP on behalf of the Roswell Park Comprehensive Cancer Center. All parties to this action were copied on this email. A copy of plaintiff’s May 11, 2018 email communication to Judge McCarthy does not appear on the docket and is annexed hereto as EXHIBIT E. 12. Finally, on the afternoon of Friday, May 11, 2018 Judge at 4:46 pm McCarthy sent an email to plaintiff, with all parties copied, indicating that he saw no need for recusal. A copy of Judge McCarthy’s May 11, 2018 email to plaintiff does not appear on the docket and is annexed hereto as EXHIBIT F. 13. As promised by plaintiff in her May 11, 2018 email to Judge McCarthy, this application, along with further argument as to why recusal is appropriate under these circumstances, is now filed. 14. Plaintiff makes this application pursuant to Section 455(a) on the basis that appearance of impropriety warrants Judge McCarthy recusal from the Phillips Lytle, LLP motion. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated the Model Code of Judicial Conduct or engaged in
other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge. 2 15. In the absence, as here, of evident of overt bias, the decision is left to the individual judge to decide recusal and deference is given to that individual judge’s decision See, In re Charges of Judicial Misconduct, 465 F.3d 5 (2nd Cir. 2006). 16. In Caperton v. A.T. Massey Coal Co., 129 S. CT. 2252 (2009) the Supreme Court held that actual bias need not be proven, and that a due process violation can be premised on evidence that falls short of proof of actual bias. Instead, all that is required is evidence showing a serious risk of actual bias-based on objective and reasonable perceptions. Argument I MAGISTRATE JUDGE JEREMIAH J. McCARTHY LONG TENURE AT THE LAW FIRM OF PHILLIPS LYTLE, LLP, INCLUDING YEARS AS A PARTNER, LEADS TO REASONABLE QUESTIONS ABOUT THE JUSTICE’S IMPARTIALITY AND WARRANT RECUSAL PURSUANT TO 28 U.S.C. SECTION 455(a) ON PENDING MOTION FILED BY PHILLIPS LYTE, LLP. 17. Judge McCarthy long tenure at the law firm Phillips Lytle, LLP, upon information and belief a tenure spanning some 16 years, leads to reasonable questions about his impartiality to rule on the pending motion filed by Phillips Lyle and 28 U.S.C. 18. Section 455(a) requires a judge to recuse himself/herself “whenever impartiality
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Model Code of Judicial Conduct R 1.2 cmt. 5 (2007).
might reasonably be questioned.” Liteky v. United States, 510 U.S. 540, 548 (1994). Where, as here, the maintenance of appearance of impartiality is as important as impartiality itself and maintaining public confidence in the courts warrants recusal on the instant motion. Mistretta v. United States, 48 U.S. 361, 407 (1989). 19. The very purpose of Section 455(a) is to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible. Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 865 (1988). Thus, what is not the reality of bias or prejudice but its’ appearance. 20. The standard under Section 455(a) is not subjective, it requires the Court to ask whether an objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge’ partiality. 21. The length of Judge McCarthy’s tenure at Phillips Lytle, a tenure that ended immediately prior to his current position on the bench, leads to reasonable questions about his partiality and certainly raises serious questions about the appearance of impropriety. II 28 U.S.C. SECTION 455(a) REQUIRES AN OBJECTIVE TEST ON THE RECORD AND JUDGE JEREMIAH J. McCARTHY’S SUBJECTIVE DETERMINATION, COMMUNICATED BY E-MAIL, THAT HE WILL BE FAIR AND IMPARTIAL FAILS TO MEET REQUIREMENTS OF SECTION 455(a). 22. In Caperton, Williams v. Pennsylvania, 136 S. Ct. 1899 (2016) the U.S. Supreme
Court articulated an objective standard for assessing whether or not due process requires recusal. 23. On May 10, 2018 Judge McCarthy stated by e-mail and off the record: “I wish to advise plaintiff and the other parties (in case they are unaware of this fact) that until February 2007, when I was appointed to my current position as a Magistrate Judge, I was a partner at Phillips Lytle, LLP, the law firm which is representing Roswell Park on this motion. To the best of my recollection I did not perform any work for Roswell Park while at Phillips Lytle. Since becoming a Magistrate Judge I have had several cases involving parties represented by Phillips Lytle. On some occasions I have ruled in favor of those parties, and on other occasions I have ruled against them. I can assure plaintiff and the other parties that my previous employment at Phillips Lytle will not influence my decision on this motion.” EXHIBIT C: Judge McCarthy email dated May 11, 2018 24. Plaintiff had no prior knowledge of Judge McCarthy’s prior employment at Phillips Lytle LLP. 25. Not questioning Judge McCarthy sincerity, plaintiff was left with many questions about Judge McCarthy’s prior employment at Phillips Lytle, LLP and reasonably expected a more objective analysis and factual basis as to why he stated that his previous employment would not influence his decision on the instant motions. 26. Objectively, failure to disclose more fully the number of years he worked at Phillips
Lytle, LLP; failure to undertake a more thorough review of cases he may have worked on at Phillips Lytle, LLP; failure to provide more detail about he cases before him where Phillips Lytle, LLP represented parties; failure to detail how many years he was a partner at the law firm; failure to explore whether or not it was possible that he may have benefited financially, as a partner, from work done by the law firm for Roswell Park supports plaintiff’s position that a sufficiently objective review of the possibility of even an appearance of impropriety took place and an objective test, as mandated by Section 455(a), has not taken place in this matter. 27. Judge McCarthy’s communication regarding his prior employment with Phillips Lytle, LLP has not been put on the record and only exist in an email, depriving review of his determination, in the absence of filing an application for recusal. Failure to more disclose his prior employment, on the record, supports an argument that a reasonable person could objectively determine that there is an appearance of impropriety.
III SWIFT DETERMINATION BY JUDGE JEREMIAH J. McCARTHY OF NO BIAS AND NO OPPORTUNITY FOR PLAINTIFF TO BE HEARD ON THE MATTER VIOLATES BASIC DUE PROCESS AND FAIRNESS AND CREATES AN APPEARANCE OF BIAS. 28. Within 24 hours, a determination was made, off the record, that no bias or unfair treatment of any of the parties would result of the judge’s prior employment with Phillips Lytle, LLP. 29. Absent an opportunity to be heard, a scant email message off the record, and the
speed within which a conflict of interest issue is disposed of give rise to an appearance of impropriety, in and of itself. The unfolding of this matter raised serious due process issues. See, EXHIBITS B, C AND D. 30. Plaintiff, almost immediately, became suspect of the process and kindly requested recusal by this judge for this one motion only. If for only the avoidance of appellate action in a case with a fairly large of parties and non-parties. 31. Where, as here, in close questions as to the appearance of impropriety as to be decided in favor of recusal. See, United States v Kelly, 888 F.3d 732, 744 (11th Cir. 1989.) Conclusions THEREFORE, for reasons set forth herein plaintiff respectfully request that the Magistrate Judge assigned to this case recuse himself from the motion filed by Phillips Lytle, LLP on behalf of the Roswell Park Comprehensive Cancer Center. Dated: May 14, 2018 Sincerely,
/s/ Shellonnee B. Chinn ____________________________________ Shellonnee B. Chinn, Plaintiff
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK _______________________________________________ SHELLONNEE B. CHINN, Plaintiff,
CERTIFICATE OF SERVICE
-vsDocket No.: 1:15-cv-00938-FPG-JJM ELMWOOD FRANKLIN SCHOOL, ET AL Defendants. _______________________________________________ CERTIFICATE OF SERVICE I, ______________________________, hereby certify that I am of suitable age and discretion as to be competent to serve papers and that I am not a party to this action. I further certify that on Monday, May 14, 2018 at approximately 5:00 pm I caused a copy of the annexed Motion for Recusal to be placed in a postage-paid envelope addressed to the attorneys listed below and deposited said envelope via first-class within the United States mail. Brendan P. Kelleher, Esq. Harris Beach, PLLC 726 Exchange Street, Suite 100 Buffalo, NY 14210 Joel C. Moore, Esq. Buffalo Board of Education 1100 City Hall Buffalo, NY 14202 Andrew P. Devine, Esq. Phillips Lytle, LLP 125 Main Street Buffalo, NY 14203 William J. Brennan, Esq. Phillips Lytle, LLP 125 Main Street Buffalo, NY 14203
By:
___________________________ ___________________________ ___________________________ ___________________________
Exhibit A
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Exhibit B
Exhibit C
Exhibit D
From: Deborah_Zamito@nywd.uscourts.gov <Deborah_Zamito@nywd.uscourts.gov> Sent: Friday, May 11, 2018 7:44 AM To: gg1813@hotmail.com Subject: Chinn v. The Elmwood Franklin School, et al., 15-CV-00938 FYI
05/11/2018
view94 TEXT ORDER : Plaintiff's response to nonparty Roswell Park Comprehensive Cancer Center's motion to quash 91 shall be filed and served by May 21, 2018; Roswell Park's reply, if any, shall be filed and served by May 25, 2018; and oral argument is scheduled for June 1, 2018 at 2:00 p.m. The parties may appear in person or participate by telephone. For those electing to participate by telephone, the court has arranged a dial-in teleconference. To access the teleconference, dial (703) 724-3100, enter access code 4100030#, and then pin 9999# sufficiently in advance of the conference. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 5/11/18. (Court has mailed and emailed a copy of this order to plaintiff).(DAZ) (Entered: 05/11/2018)
Exhibit E
From: Shellonnee Chinn <gg1813@hotmail.com> To: "Jeremiah_McCarthy@nywd.uscourts.gov" <Jeremiah_McCarthy@nywd.uscourts.gov>, "Andrew P. Devine" <ADevine@phillipslytle.com>, "Brendan P. Kelleher" <BKelleher@HarrisBeach.com>, "JCMoore@buffaloschools.org" <JCMoore@buffaloschools.org>, "rsullivan@harrisbeach.com" <rsullivan@harrisbeach.com>, "William J. Brennan" <WBrennan@phillipslytle.com> Date: Subject:
05/11/2018 03:06 PM Chinn vs Elmwood Franklin, Recusal Request
May 11, 2018 Dear Judge McCarthy: I am in receipt of your email of May 10, 2018 wherein you disclose that immediately prior to your current Judgeship you were a Partner in the law firm of Phillips Lytle, LLP, a firm now representing Roswell Park Comprehensive Cancer Institute, a non-party, in a motion to quash a subpoena in Chinn vs. Elmwood Franklin School, to which you are the assigned Magistrate Judge. You also disclosed that you have no recollection of performing any work for Roswell Park while at Phillips Lytle. You also made assurances that you will be fair and impartial. For reasons that I will more fully detail in an application I will file before close of business on May 14, 2018, I kindly ask that you recuse yourself from the motion filed by Phillips Lytle, LLP on behalf of Roswell Park. I want to be clear, in no way am I accusing, or even suggesting, any bias or wrong doing on your part or on the part of any party or non-party to this action. My primary concern, and the basis for my request, is the appearance of impropriety. I am acting out of an abundance of caution, the seriousness of the issues, and the number of party and non-parties in this action and to eliminate any possible appealable issue regarding the Model Code of Judicial Conduct. I strongly believe that this issue need to be on the record and email communications does not facilitate the kind of transparency that is required in this case. Preliminarily, I call attention to the following authority: to ensure that judges decide cases fairly, the Due Process Clause and the Model Code of Judicial Conduct R. 1.2 (2007) require judges to remain impartial and independent. In Caperton, Williams v Pennsylvania, 136 S. Ct. 1899 (2016), the U.S. Supreme Court has articulated an objective standard for assessing whether due process requires recusal. The Due Process Clause may sometimes demand recusal even when a judge has no actual bias. See Rippo v Baker, 137 S. Ct. 905, 907 (2017). Judicial impartiality not only protects litigantsâ&#x20AC;&#x2122; due process rights, but also works to maintain public confidence in the justice system. See Mistretta v United States, 48 U.S. 361, 407 (1989) As such, maintaining the appearance of impartiality is as important as impartiality itself. Under both the Model Code and the Due Process Clause, the standard for determining whether a judge is required to recuse herself/himself is objective, focusing not on whether the judge is biased, but on whether the judgeâ&#x20AC;&#x2122;s impartiality might reasonably be questioned. Thank you for your consideration. Shellonnee B Chinn
Exhibit F
From: <Jeremiah_McCarthy@nywd.uscourts.gov> Date: May 11, 2018 at 4:56:12 PM EDT To: Shellonnee Chinn <gg1813@hotmail.com> Cc: "Andrew P. Devine" <ADevine@phillipslytle.com>, "Brendan P. Kelleher" <BKelleher@HarrisBeach.com>, "JCMoore@buffaloschools.org" <JCMoore@buffaloschools.org>, "rsullivan@harrisbeach.com" <rsullivan@harrisbeach.com>, "William J. Brennan" <WBrennan@phillipslytle.com>, <Deborah_Zamito@nywd.uscourts.gov>, <Matthew_Yusick@nywd.uscourts.gov>, <James_Arnone@nywd.uscourts.gov> Subject: Re: Chinn vs Elmwood Franklin, Recusal Request Although I currently do not see any reason to recuse myself from considering Roswell's motion to quash plaintiff's subpoenas, I will carefully consider any recusal motion that may be filed. However, absent further order of the court, the briefing schedule which I issued today for the motion to quash remains in effect.
Case 1:15-cv-00938-FPG-JJM Document 96 Filed 05/17/18 Page 1 of 4
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK __________________________________________ SHELLONNEE B. CHINN,
DECISION AND ORDER Plaintiff,
15-CV-00938-FPG-JJM
v. ELMWOOD FRANKLIN SCHOOL, et al., Defendants. __________________________________________ This action has been referred to me by District Judge Frank P. Geraci for supervision of pretrial proceedings [72].1 Before the court is the plaintiff’s application pursuant to 28 U.S.C. §455(a) [95] requesting that I recuse myself from deciding the motion by Roswell Park Comprehensive Care Center [91] to quash non-party subpoenas issued by plaintiff. For the following reasons, the application is granted, albeit not on the grounds argued by plaintiff.
DISCUSSION 28 U.S.C. §455(a) 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”. Plaintiff argues that because Phillips Lytle LLP is representing Roswell Park in connection with the motion to quash, the fact that I was a partner in that law firm until becoming a Magistrate Judge in February 2007 could reasonably lead one to question my impartiality if I were to decide that motion.
1
Bracketed references are to CM/ECF docket entries. Unless otherwise denoted, page references are to numbers reflected on the documents themselves rather than to the CM/ECF pagination.
Case 1:15-cv-00938-FPG-JJM Document 96 Filed 05/17/18 Page 2 of 4
I disagree. “The prior representation of a party by a judge or his firm with regard to a matter unrelated to litigation before him does not automatically require recusal.” National Auto Brokers Corp. v. General Motors Corp., 572 F.2d 953, 958 (2d Cir. 1978); Ostrander v. PCB Piezotronics, Inc., 2012 WL 10796963, *2 (W.D.N.Y. 2012), adopted in relevant part, 2014 WL 1660588 (W.D.N.Y. 2014) (“my former partnership in [Phillips Lytle LLP] does not prevent me from acting as the Magistrate Judge in this case. Assuming that a judge is no longer receiving financial payment from a former law firm, a two-year recusal period is generally reasonable”). I have had no financial relationship with Phillips Lytle LLP since leaving the firm in 2007. I began hearing cases involving that firm in 2009, two years after taking the bench. Since that time, I have ruled both in favor of its clients (e.g., Campaign for Buffalo History, Architecture & Culture, Inc. v. Buffalo & Fort Erie Public Bridge Authority, 2013 WL 672323 (W.D.N.Y. 2013)) and against its clients (e.g., Cliffstar Corp. v. Alpine Foods, LLC, 2016 WL 2640342 (W.D.N.Y. 2016)), and my decisions have in no way been affected by my previous relationship with the firm. Therefore, if the only factor to be considered was my former partnership at Phillips Lytle LLP, I would not hesitate to deny the recusal application, as I have done in the past. However, “the substantive standard for recusal is whether a reasonable person, knowing all the facts, would conclude that the court's impartiality might reasonably be questioned.” United States v. Pitera, 5 F.3d 624, 626 (2d Cir. 1993) (emphasis in original). If that standard is met, “the judge should disqualify himself despite his subjective belief in his impartiality”. German v. Federal Home Loan Mortgage Corp., 943 F. Supp. 370, 373 (S.D.N.Y. 1996).
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Upon further consideration of plaintiff’s application, I have given thought to certain additional factors relating only to the motion to quash, not to the case in general. These factors need not be discussed, since “as a general rule, a federal judge should reach his own determination on recusal, without calling upon counsel to express their views”. United States v. Kelly, 888 F.2d 732, 745 (11th Cir. 1989) (emphasis in original); Matter of Andros Compania Maritima, S.A. (Marc Rich & Co., A.G.), 579 F.2d 691, 699 (2d Cir. 1978) (“[g]enerally, a federal judge may not state for the record possible disqualifying circumstances and ask the parties to decide whether they want him to continue”). These additional factors, which may no longer exist a few months from now, had not initially struck me as being of consequence - and while I cannot say that they would cause a reasonable person to wonder whether my impartiality might subconsciously be affected in deciding Roswell Park’s motion to quash, nor can I say for certain that they would not. In deciding whether recusal is appropriate, “what matters is not the reality of bias or prejudice but its appearance”. Liteky v. United States, 510 U.S. 540, 548 (1994). “If the appearance of bias or prejudice is a close call, recusal is appropriate.” In re Marshall, 403 B.R. 668, 679 (C.D. Cal. 2009), aff'd, 721 F.3d 1032 (9th Cir. 2013); In re United States, 441 F.3d 44, 56 (1st Cir. 2006) (“doubts ordinarily ought to be resolved in favor of recusal”).
CONCLUSION “The decision whether to grant or deny a recusal motion . . . is a matter confided to the district court's discretion.” Apple v. Jewish Hospital and Medical Center, 829 F.2d 326, 333 (2d Cir. 1987). For the foregoing reasons, I exercise my discretion to grant plaintiff’s application for recusal “for this one motion only” ([95], ¶30). Roswell Park’s motion to quash
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[91] will be reassigned to a different Magistrate Judge for consideration, and the parties should consult that Judge as to whether the briefing schedule which I had set [94] remains in effect.
Dated: May 17, 2018
/s/ Jeremiah J. McCarthy JEREMIAH J. MCCARTHY United States Magistrate Judge
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