October 27, 2020

Volume X, Number 301

Advertisement

October 27, 2020

Subscribe to Latest Legal News and Analysis

October 26, 2020

Subscribe to Latest Legal News and Analysis

Awkward: TCPA Plaintiff Accuses Judge of Bias and Demands Recusal—You Won’t Believe What Happens Next

Here’s a fun one. Pretty educational too.

You might recall a few weeks back TCPAWorld.com told the tale of a bank that waited too long to enforce a jury waiver and wound up having to re-try a TCPA case after winning it at a bench trial.  How embarrassing.

Well, on remand, the Plaintiff in that suit, the attorney-less Deborah Walton, filed a motion under little used  28 U.S.C. § 144 to request a new judge for the re-trial. That section gives a party the automatic right to kick a judge off their case for bias—all they have to do is wander into court with an affidavit accusing the judge of prejudice against them. No problem.

The appellate courts have been particularly leery of Section 144 affidavits and empower the district courts reviewing them—yes, the very judges being accused of prejudice—to deny them for the slightest perceived misstep.

In Ms. Walton’s case the court swiftly denied Plaintiff’s request for a new judge under Section 144 because she did not supply the attorney certification that the affidavit was requested in good faith. The rule requires that the affidavit requesting recusal be “accompanied by a certificate of counsel of record stating that it is made in good faith.” But, you’ll recall, Walton has no counsel of record. So no counsel of record, no counsel of record certification. No dice. Request for a new judge under Section 144 denied.

But the special torture isn’t done yet.

The Court converts Walton’s affidavit for automatic recusal under 28 U.S.C. 144 into a request for discretionary recusal under 28 U.S.C. 455. Now the Court gets to actually review and rebut all of Plaintiff’s accusations of prejudice and bias. Now that’s always a special task.

The Court goes through each of Plaintiff’s perceived expressions of bias and explains why none of them were even slightly inappropriate. The Court systematically overrules each and every ground the Plaintiff asserted as bias. Awkward.

But then, just when it looks like the Plaintiff might be forced to re-try the case before a very very grumpy judge—a miracle. The Court takes it upon itself to consider whether the Court’s previous findings on Plaintiff’s credibility-or lack thereof—might itself suggest bias in a re-trial:

In connection with the bench trial, the undersigned found that Ms. Walton’s testimony regarding FMB’s use of a prerecorded or artificial voice was not credible, and that Ms. Walton has “demonstrated a lack of candor and honesty throughout this litigation.” The undersigned also has awarded attorneys’ fees to FMB based on a finding that Ms. Walton knew about a discrepancy involving her social security number on overdraft protection opt-in documents, yet persisted in pursuing a meritless claim.

Although these findings do not exhibit bias on the part of the undersigned – they are merely adverse rulings which have been affirmed on appeal – this case is in an unusual posture. The undersigned has made adverse credibility determinations, and the case has been remanded for the undersigned to hold a jury trial in which some of the very issues for which the undersigned found Ms. Walton was not credible will be presented to the jury. Based on this unusual procedural posture and the undersigned’s prior credibility findings, the undersigned finds, in her discretion, that recusal is in the interest of justice, so that the merits of case are the sole focus.

So after all that, Ms. Walton gets her new judge after all.

I’m not sure there’s a moral to this story. It was just an interesting Thursday morning read. Stay safe TCPAWorld.

BTW the case is  Walton v. First Merchs. Bank, No. 1:17-cv-01888-JMS-MPB, 2020 U.S. Dist. LEXIS 169058 (S.D Ind.  September 16, 2020)

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 261
Advertisement

TRENDING LEGAL ANALYSIS

Advertisement
Advertisement

About this Author

Eric Troutman Class Action Attorney
Of Counsel

Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric has built a national litigation practice based upon deep experience, rigorous...

213-689-6510
Advertisement
Advertisement