Smart Communications Holding, Inc. v. Global Tel-Link Corporation

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

SMART COMMUNICATIONS, : Civil No. 1:21-cv-01708

HOLDING, INC., et al., :

:

Plaintiffs, :

:

v. :

:

GLOBAL TEL-LINK CORPORATION, :

et al., :

:

Defendants. : Judge Jennifer P. Wilson

MEMORANDUM

Before the court is Plaintiffs’ motion to disqualify the Mette Evans and

Woodside Law Firm as counsel for the York County Defendants, and to reassign

this and the related patent case1 to District Court Judge Christopher C. Conner,

who was formerly presiding over both actions until he recused. (Doc. 23.) For the

following reasons, the court will grant Plaintiffs’ motion to disqualify counsel, but

deny Plaintiffs’ motion to reassign these cases.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiffs Smart Communications Holding, Inc. and HLFIP Holding, Inc.,

d/b/a Smart Communications IP Holdings (collectively “Plaintiffs”) filed a

complaint against Defendants Global Tel*Link Corporation (“GTL”), York

County, Pennsylvania (“York County”), York County Prison (“YCP”), and Mr.

1 See HLFIP Holding, Inc. d/b/a Smart Communications IP Holdings v. York County, et al.,

1:20-CV-00186

Adam Ogle, in his official capacity as acting Warden of YCP (“Mr. Ogle”) on

October 6, 2021. (Doc. 1.) The complaint alleges violations of the Sherman Act,

15 U.S.C. § 1 (against all defendants), and tortious interference with prospective

business relations, unfair competition, and champerty and maintenance against

GTL. (Id., pp. 38–47.)2 All four counts of the complaint relate, in full or in part,

to GTL’s conduct in relation to and during the pendency of the patent litigation,

which was initiated by complaint filed on February 3, 2020. (Id.) The instant case

has been listed, since its filing, as related to the patent litigation. (Doc. 1-1.) Both

cases were previously assigned to Judge Conner.

On November 3, 2021, two attorneys from Mette Evans and Woodside

(“MEW”) entered their appearances on behalf of York County, YCP, and Mr. Ogle

(collectively, “the York Defendants”) in this action. (Docs. 14, 18.) The next day,

Judge Conner entered an order in this case stating that because an attorney from

MEW entered an appearance and the law firm was listed on his conflict list,3 he

would recuse. (Doc. 19.) The order further stated that because the patent case was

related to the instant case and that reassignment of both would further the interests

of justice and judicial economy, that he was likewise recusing himself from the

2 For ease of reference, the court utilizes the page numbers from the CM/ECF header.

3 Judge Conner’s personal attorney joined Mette Evans and Woodside (“MEW”) on February 8,

2021. (See Doc. 24-1.) Shortly thereafter, Judge Conner recused himself from a different case

over which he was presiding because MEW represented the Plaintiff and Judge Conner

determined that there was a conflict of interest pursuant to 28 U.S.C. § 455(a). (Id.)

patent case. (Id.) Both cases were reassigned to the undersigned in accordance

with the court’s assignment policy.

Shortly thereafter, on November 19, 2021, Plaintiffs filed a motion in this

case to disqualify MEW and to reassign this case back to Judge Conner. (Doc. 23.)

Plaintiffs also filed a motion to reassign the patent case back to Judge Conner,

which motion is addressed by separate order. The York Defendants filed a brief in

opposition on December 3, 2021. (Doc. 27.) Plaintiffs filed a reply brief on

December 17, 2021. (Doc. 34.) After being granted leave to file a sur-reply brief,

the York Defendants filed a sur-reply brief on January 10, 2022. (Doc. 42.) Thus,

this motion is ripe for review.

JURISDICTION AND VENUE

This court has jurisdiction under 28 U.S.C. § 1331, which allows a district

court to exercise subject matter jurisdiction in civil cases arising under the

Constitution, laws, or treaties of the United States. The court has supplemental

jurisdiction over the related state-law claims pursuant to 28 U.S.C. § 1367.

Further, venue is appropriate under 28 U.S.C. § 1391.

STANDARD OF REVIEW

The Third Circuit Court of Appeals has not established the standard to apply

when deciding whether to disqualify an attorney whose appearance has resulted or

will result in a judge’s recusal. Other circuits have considered the question and

held that disqualification may be warranted based upon consideration of certain

circumstances. See, e.g., In re BellSouth Corp., 334 F.3d 914, 962–65 (11th Cir.

2003) (applying the factors test set forth in Robinson v. Boeing Co., 79 F.3d 1053

(11th Cir. 1996) even though the disputed attorney’s appearance occurred at the

outset of the case rather than interrupting it after substantial judicial investment);

In re FCC, 208 F.3d 137, 139–40 (2d Cir. 2000) (panel sua sponte directed counsel

to withdraw its appearance in the matter because the appearance of members of

that firm caused the recusal of one of the judges already assigned to the panel);

Robinson, 79 F.3d at 1054–56 (created an objective test and provided a list of non-

exclusive factors courts should examine when determining whether to allow

substitute or additional counsel that would result in the recusal of the presiding

judge); McCuin v. Tex. Power & Light Co., 714 F.2d 1255, 1257 (5th Cir. 1983)

(applying a subjective test that involved determining whether the sole or primary

motive for retaining counsel was to disqualify the presiding judge).

Upon review of the persuasive authority from other circuits, the court

considers the respective merits of the Fifth Circuit’s subjective test and the

Eleventh Circuit’s objective test. The Fifth Circuit held that “a lawyer may not

enter a case for the primary purpose of forcing the presiding judge’s recusal.”

McCuin, 714 F.2d at 1265 (emphasis added). As noted in subsequent circuit court

decisions, the disadvantage of applying a subjective test is that discerning a party’s

motive is a difficult task prone to problematic discovery issues delving into

attorney-client communications and fact-finding that involves credibility

determinations. See Robinson, 79 F.3d at 1055 (noting that no amount of

discovery was likely to elicit the true motive, which was elusive and not likely

truly ascertainable); BellSouth, 334 F.3d at 947 (noting that it is practically

impossible to prove a party’s true motive); FCC, 208 F.3d at 139–40 (making no

finding as to good faith or intent, but instead on the fact that counsel knew or

should have known of the risk of the presiding judge’s recusal before entering an

appearance).

The Eleventh Circuit in Robinson set forth the following objective factors

for courts to consider and balance: (1) the fundamental right to counsel; (2) the

court’s docket; (3) the injury to plaintiff; (4) the delay in reaching decision; (5) the

judicial time invested; (6) the expense to the parties objecting; and (7) the potential

for manipulation or impropriety. Robinson, 79 F.3d at 1055. This is a non-

exclusive list of factors and none of them are necessary. BellSouth, 334 F.3d at

962. The court noted that the weight given to each will vary with the

circumstances of the individual case. Id. The last factor—the potential for

manipulation and impropriety—was noted as being elusive, and the Eleventh

Circuit cautioned that “[t]his potential for manipulation and impropriety may be

considered, without making specific findings.” Robinson, 79 F.3d at 1056. Where

the balance of these objective factors favors disqualification, the party resisting

such disqualification must show an overriding need for its choice of counsel. Id. at

1054-56. An overriding need is defined as “a need that would reflect upon the

litigant’s ability to have its case fairly presented, rising to constitutional due

process concerns.” Id. at 1056. If an overriding need is shown, it would trump

both time delay and loss of judicial time invested. Id.

The court finds that applying an objective test avoids the complications that

accompany a subjective inquiry into the intent of a litigant or counsel, including

potential attorney-client privilege issues. Additionally, applying an objective test

better serves important public purposes, such as preventing even the appearance of

manipulation of our system of judicial administration. Thus, this court will adopt

the objective test set forth by the Eleventh Circuit in Robinson.4

DISCUSSION

As detailed in the following sections, the court will review the competing

arguments presented by the parties by reference to each of the factors identified in

Robinson in order to objectively evaluate the merits of the motion to disqualify

4 The court acknowledges that both Robinson and BellSouth involved motions for leave to add

counsel mid-litigation, not motions to disqualify counsel who have already entered their

appearances. However, numerous courts have found that this is not a meaningful distinction, as

the same considerations are implicated in both situations. See UCP Int’l Co. v. Balsam Brands,

Inc., 261 F. Supp. 2d 1026, 1059 (N. D. Ca. 2017) (collecting cases).

MEW. In addition, the court will assess the respective arguments about whether

this case should be reassigned to Judge Conner.

A. Fundamental Right to Counsel

Plaintiffs argue that although parties are given wide latitude in retaining

counsel, this choice is not absolute and there are exceptions to this general rule.

(Doc. 34, pp. 4–5.) The York Defendants primarily rely on the fundamental right

to counsel in defending this motion. The York Defendants contend that their

choice of counsel is “entitled to substantial deference,” and there is a heavy burden

on a movant seeking to disqualify counsel. (Doc. 27, pp. 6–7.) They then argue

that Plaintiffs have done no more than make bald assertions unsupported by facts

demonstrating that the selection of MEW as counsel was driven by the desire to

have Judge Conner recuse himself in both cases.

While the York Defendants are correct that their choice of counsel is entitled

to substantial deference, Plaintiffs are also correct that the right to counsel is not

absolute. The Fifth Amendment Due Process Clause guarantees civil litigants the

right to retained counsel, which ordinarily includes the right to be represented by

the counsel of their choice. McCuin, 714 F.2d at 1262 (citing Potashnick v. Port

City Constr. Co., 609 F.2d 1101, 1118 (5th Cir. 1980) and Powell v. Alabama, 287

U.S. 45 (1932)). However, the right to counsel of choice can be overridden where

the choice of counsel interferes with the orderly administration of justice.

BellSouth, 334 F.3d at 975; Kleiner v. First Nat’l Bank of Atlanta, 751 F.2d 1193,

1209 (11th Cir. 1985); United States v. Dinitz, 538 F.2d 1214, 1219 (5th Cir.

1976). Judge shopping and manipulating the random assignment of judges clearly

constitute a threat to the orderly administration of justice. Selkridge v. United Of

Omaha Life Ins. Co., 360 F.3d 155, 168 (3d Cir. 2004) (addressing the dangers of

judge shopping and cautioning that it could “become an additional and potent

tactical weapon in the skilled practitioner’s arsenal”); BellSouth, 334 F.3d at 959

(“[e]very court considering attempts to manipulate the random assignment of

judges has considered it to constitute a disruption to the orderly administration of

justice”); FCC, 208 F.3d at 139 (disqualifying a lawyer whose appearance resulted

in the recusal of the presiding judge in order to preserve “the neutral and random

assignment of judges to cases”); United States v. Phillips, 59 F. Supp. 2d 1178,

1180 (D. Utah 1999) (collecting cases and scholarly literature indicating that

manipulation of the random case assignment process is universally condemned as a

disruption of the integrity of the judicial system that would undermine public

confident in the assignment process).

Therefore, the fundamental right to counsel favors the York Defendants’

position, but the court finds that this factor is not dispositive and will yield to the

need to ensure the orderly administration of justice.

B. The Court’s Docket, Delay in Reaching Decision, and Judicial Time

Invested

The court notes that this district has been operating for more than seven

months with less than its fully authorized complement of active judges.

Additionally, the court’s docket is congested with numerous complex civil cases.

If Judge Conner were frequently caused to recuse himself from cases, it would

create a significant burden on the remaining judges within this district. This is

especially so in cases in which Judge Conner may have already invested significant

judicial resources.

Transfer of a case to a different judge after recusal of the original presiding

judge often results in the duplication of judicial resources and significant delay.

Furthermore, additional resources are expended when deciding a motion to

disqualify after a judge has recused himself–which is the situation at hand.

“Judicial resources in this country are limited. It is incumbent on lawyers as

officers of the court, as well as judges, to guard against actions and procedures to

avoid the useless expenditure of judicial time.” Robinson, 79 F.3d at 1055.

In this case, the delay is less significant than in the patent case, where Judge

Conner’s recusal resulted in the rescheduling of a claim construction hearing.

However, even in this case, there is still a delay in ultimately resolving the merits

of the case due to the reassignment that resulted from Judge Conner’s recusal.

Therefore, these factors all weigh in favor of disqualifying MEW.

C. Injury to Plaintiff and Expense to the Parties Objecting

Plaintiffs have not argued any specific injury in this case resulting from

MEW’s entry of appearance and Judge Conner’s recusal. Rather, Plaintiffs’

arguments about injury and prejudice pertain to the related patent case. The York

Defendants have not argued any particular expense that they would incur if MEW

would be disqualified. Overall, the court finds that these factors are neutral.

D. Potential for Manipulation and Impropriety

This last factor is elusive, but important in the analysis of the instant motion

to disqualify. First, the court notes that motions to disqualify are strongly

disfavored and subject to “particularly strict judicial scrutiny”; the “paramount

concern must be the preservation of public trust both in the scrupulous

administration of justice and in the integrity of the bar.” UCP, 261 F. Supp. 3d at

1060 (quoting Optyl Eyewear Fashion Int’l Corp. v. Style Cos., Ltd., 760 F.2d

1045, 1050 (9th Cir. 1985)). As discussed above, judge shopping and

manipulating the random assignment of judges constitutes a threat to the orderly

administration of justice. Litigants should not be permitted to utilize

disqualification of a judge as a trial strategy. McCuin, 714 F.2d at 1258.

Furthermore, there is a concern that judge-shopping could “become an additional

and potent tactical weapon in the skilled practitioner’s arsenal.” Selkridge, 360

F.3d at 168.

Even courts that have not applied the Eleventh Circuit’s objective test have

expressed concern regarding the potential for manipulation and impropriety

attendant to circumstances such as this. For example, in FCC, the Second Circuit

Court of Appeals sua sponte rejected the entry of appearance by an attorney that

would have resulted in the recusal of one of the panel judges. In doing so, the

court held that “[a]s between a judge already assigned to a panel, and a lawyer who

thereafter appears in circumstances where the appearance might cause an assigned

judge to be recused, the lawyer will go and the judge will stay.” FCC, 208 F.3d at

139. Further, “the failure of counsel to consider in advance the known or

knowable risk of a judge’s recusal may result in the rejection of the appearance by

that lawyer or firm.” Id. Lastly, the court noted that it expects “that lawyers will

take pains to avoid appearing in any case in which their appearance may cause

disqualification of a judge assigned to the case.” Id. In addition, in McCuin, the

Fifth Circuit cautioned that a party could disqualify a judge by employing certain

counsel after the case has been pending in order to “force on other litigants and the

courts the penalty of starting over before a new judge” simply because he was

dissatisfied with the presiding judge’s rulings. McCuin, 714 F.2d at 1263.

In Robinson and BellSouth, there was an established pattern of the same

attorney or firm being hired that resulted in the judge’s recusal. See BellSouth,

334 F.3d at 944. Certainly, a pattern of law firm selection resulting in recusal

provides significant proof that recusal is the intended result. However, the

Robinson and BellSouth courts did not indicate that a prior track record is required

in order to disqualify a law firm whose entry of appearance resulted in the recusal

of the presiding judge. It would not be sensible to establish an arbitrary number of

recusals that must occur before disqualification of the attorney or firm is

warranted. In fact, establishing a bright line numerical rule could result in

attorneys or firms engaging in this undesirable behavior a certain number of times,

knowing that they have not yet established the required “pattern” of behavior.

Accordingly, even a single instance of prior recusal can be significant.

In this case, there was a prior recusal by Judge Conner in another case that is

relevant to the analysis. It is clear from the order he entered in the prior, unrelated

case that he viewed an attorney from MEW entering an appearance as creating a

conflicting requiring his recusal. (See Doc. 24-1, p. 2.) It is also clear from

MEW’s brief in opposition that MEW counsel were aware that Judge Conner’s

recusal was a possible, and perhaps likely, consequence of entering an appearance

in this case. Indeed, without providing more details, MEW counsel acknowledge

that “Judge Conner’s recusal a few months prior in an unrelated case with which

MEW was involved was considered as discussion of the potential representation

progressed.” (Doc. 27, p. 4) (emphasis added.) Thus, MEW concedes that the

possibility of recusal of the presiding judge was discussed prior to agreeing to

represent the York Defendants and it still agreed to represent the York Defendants

in this matter.

It is clear that in circumstances such as these, the potential for manipulation

and impropriety is significant. Here, not only was it knowable that Judge Conner

was likely to recuse himself upon MEW counsel entering their appearance, counsel

admit that they, in fact, knew that Judge Conner was likely to recuse himself but

entered an appearance anyway. Furthermore, this court finds that based on the

degree of relatedness between this case and the patent case, it was not reasonable

for MEW to assume that even if Judge Conner were to recuse himself in this case,

he would not also recuse himself in the patent case. Even a cursory review of the

complaint in the instant case makes it apparent that the cases are not just docketed

as being related, but that conduct relating to the patent litigation forms the basis for

the claims in this case.

The fact that MEW counsel knew or should have known that Judge Conner

would recuse in this case and the patent case upon MEW counsel entering their

appearance in this case underscores the serious concern about the ability of law

firms to utilize conflicts and recusals as a trial strategy. It is now abundantly clear

that MEW’s entry of appearance in a case assigned to Judge Conner necessitated

his recusal in two related cases–one of which had been pending for 20 months.

Whether the entry of appearance in this case was done for the subjective purpose

of forcing recusal is irrelevant, and the court does not make any finding regarding

subjective intent. That is because the objective danger inherent in the ability to

force recusal of a particular judge is such a significant concern that it outweighs

the right to choice of counsel in this circumstance.

E. Overriding Need

On balance, the factors weigh in favor of disqualifying MEW. Therefore,

disqualification is warranted absent a showing of an “overriding need for this

particular lawyer.” Robinson, 79 F.3d at 156. While not framed using the phrase

“overriding need,” Plaintiffs, in their reply brief, noted that the York Defendants

failed to provide details relating to their search for counsel in this case other than

stating that there was a “vetting process.” (Doc. 34, pp. 10–11.) In response, the

York Defendants asserted that they have no duty to detail their search for counsel

in this matter or to articulate their evaluation of the qualifications of a seasoned

group of litigators at MEW. (Doc. 42, p. 7.) Without expressing any doubt as to

the qualifications of counsel from MEW, on this record, the court has no basis

upon which to conclude that the York Defendants have an overriding need for

counsel from MEW to represent them in the instant case.

F. Request to Reassign Both Cases

Plaintiffs’ request to reassign both cases back to Judge Conner is primarily

based on the premise that Judge Conner is familiar with both cases and that another

judge handling the cases moving forward would result in the needless expenditure

of additional judicial resources. However, at the outset, the court notes that Judge

Conner, at the time of his recusal, had not yet issued any substantive orders in

either case. Additionally, in addressing the instant motion in both cases, the

undersigned has already become familiar with the substance of both cases as well

as the procedural posture of the cases and the other pending motions. Thus, while

Plaintiffs’ assertion about the expenditure of additional judicial resources factors in

favor of the disqualification of counsel, the court concludes that reassigning the

cases would not remedy the situation.

Judge Conner recused himself from this and the patent case and both cases

were properly reassigned to the undersigned in accordance with this court’s case

assignment policy. The undersigned has no basis for recusal in these matters.

“Where, as here, an issue is properly before the District Court, it should decide that

issue.” Adkins v. Sogliuzzo, 625 Fed. Appx. 565, 575 (3d Cir. 2015) (citing

Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996); see also CODE OF

CONDUCT FOR U. S. JUDGES, CANON 3A (“A judge should hear and decide matters

assigned, unless disqualified”). In addition, even if there were a basis to recuse or

reassign, this court does not have the authority to reassign a case directly to another

District Court Judge. Rather, it would result in a random reassignment to another

judge, resulting in a further investment of judicial resources.

CONCLUSION

For the foregoing reasons, Plaintiffs’ motion to disqualify counsel from

MEW is granted. Plaintiffs’ motion to reassign this and the related patent case

back to Judge Conner is denied. An appropriate order follows.

s/Jennifer P. Wilson

JENNIFER P. WILSON

United States District Court Judge

Middle District of Pennsylvania

Dated: March 14, 2022