United States District Court, S.D. West Virginia, Charleston
WILLIAM PERRY NEWHOUSE, and Executor of his Estate, DELVA NEWHOUSE, Plaintiff,
ETHICON, INC. et al., Defendants.
L. Tinsley United States Magistrate Judge
Motion for Removal of Magistrate Judge.
before the court is Delva Newhouse's “Motion to
Demand the Magistrate be Removed from Case for Good Cause and
Prejudice” (ECF No. 66). In particular, Ms. Newhouse
seeks the removal of the referral of this matter to the
undersigned because “[n]o consent was ever given by
either party for this Magistrate Judge to proceed over this
case as required by clearly established Federal Civil Court
Rule 53(a)(2), 28 U.S.C. § 636(c), and 28 U.S.C. §
455.” (ECF No. 66 at 1). The motion further asserts
that the undersigned has “failed to issue any type of
Report and Recommendation(s) on any claims/motions, in order
to protect Fellow Members of the BAR and Defendants Corporate
Interests at the expense of irreparable harms/injuries,
sufferings, and deaths of the Plaintiff and innocent U.S.
Newhouse appears to misunderstand the referral of this matter
to the undersigned. While 28 U.S.C. § 636(c) permits the
parties to consent to a magistrate judge conducting any or
all proceedings in a jury or nonjury civil matter, including
the entry of a final judgment, section 636(b)(1) permits a
district judge to designate a magistrate judge to hear and
determine any pretrial matter, and for certain enumerated
motions or types of proceedings, to submit proposed findings
of fact and recommendations for disposition to the presiding
district judge. Because the plaintiff is proceeding pro
se, this matter was referred by Standing Order (ECF No.
5) to the undersigned United States Magistrate Judge to
consider all pretrial proceedings and to submit proposed
findings and recommendations for disposition, pursuant to 28
U.S.C. § 636(b)(1)(A) and (B). 28 U.S.C. §
636(b)(1); see also Kerr v. Marshall Univ. Bd. of
Governors, 824 F.3d 62, 72 and n.7 (4th Cir.
2016) (“Section 636(b) permits a district court to
assign any pretrial matter to a magistrate
this matter is properly referred to the undersigned, pursuant
to 28 U.S.C. § 636(b)(1) and section 636(c) is n0t
presently implicated. Moreover, no dispositive motions have
been filed that have required the submission of a Report and
Recommendation containing proposed findings of fact and
recommendation for disposition under section 636(b)(1)(B).
extent that Ms. Newhouse's motion seeks to disqualify the
undersigned United States Magistrate Judge, such a motion is
governed by 28 U.S.C. § 455. Specifically, the
plaintiff's motion appears to implicate subsections (a)
and (b)(1) of that statute. Title 28, United States Code,
Section 455(a) provides, in pertinent part, that a magistrate
judge “shall disqualify himself in any proceeding in
which his impartiality might reasonably be questioned.”
28 U.S.C. § 455(a). Subsection (b) also mandates
disqualification where a magistrate judge “has a
personal bias or prejudice concerning a party. . . .”
28 U.S.C. § 455(b)(1).
standard for determining disqualification is “whether
another, not knowing whether or not the judge is actually
impartial, might reasonably question his impartiality on the
basis of all the circumstances.” United States v.
DeTemple, 162 F.3d 279, 286 (4th Cir. 1998); Aiken
County v. BSP Division of Envirotech Corp., 866 F.2d
661, 679 (4th Cir. 1989). This is an objective standard and
recusal under section 455(b)(1) “is required only if
actual bias or prejudice is proved by compelling
evidence.” Brokaw v. Mercer County, 235 F.3d
1000, 1025 (7th Cir. 2000) (concluding that a reasonable
person would not be convinced of bias based on judicial
rulings alone). The plaintiff bears the burden of proving
facts that justify recusal. DeNardo v. Municipality of
Anchorage, 974 F.2d 1200, 1201 (9th Cir.
accordance with the provisions of 28 U.S.C. §§
455(a) and (b)(1), the undersigned denies having any personal
bias or prejudice concerning the parties herein, and firmly
believes that his impartiality cannot reasonably be
questioned in this case. Ms. Newhouse's assertions appear
to be based solely on the fact that the undersigned has not
issued a Report and Recommendation for disposition in this
matter or expedited the proceedings for an immediate jury
trial without discovery or other pretrial proceedings, and
her dissatisfaction with the undersigned's rulings in the
matter thus far.
the undersigned FINDS that there is no valid
basis for disqualification of the undersigned or
re-assignment of this matter. Accordingly, it is hereby
ORDERED that the “Motion to Demand the
Magistrate be Removed from Case for Good Cause and
Prejudice” (ECF No. 66) is DENIED.
Rescheduling of status conference.
order to resolve the issue of substitution of the proper
plaintiff and to address other pending motions and further
proceedings in this matter, the status conference previously
ordered to take place on April 11, 2019 will be expedited. It
is hereby ORDERED that a status conference
will take place in this matter on Thursday, March 28,
2019 at 11:00 a.m. in Courtroom 5400, Robert C. Byrd
Courthouse, 300 Virginia Street East, in Charleston, West
Virginia. Delva Newhouse and counsel for the
defendants are expected to appear in person.
further ORDERED that Ms. Newhouse shall
bring with her to the hearing the following documents or
evidence: (1) a copy of the Order appointing her as the
executrix of the estate of William Perry Newhouse, III; (2)
evidence that Mr. Newhouse's sons have renounced any
interest they may have in the estate and that there are no
other beneficiaries; and (3) evidence that there are no other
creditors of the estate. Ms. Newhouse should be prepared to
discuss the status of the settlement of Mr. Newhouse's
Clerk is directed to mail a copy of this Order to the
plaintiff and to ...