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Shuler v. Duke

United States District Court, N.D. Alabama, Southern Division

May 31, 2018

ROGER SHULER and CAROL SHULER, Plaintiffs,
v.
LIBERTY DUKE, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          KARON OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE.

         The plaintiffs previously filed a “Motion to Disqualify Judge [Virginia Emerson Hopkins] for Bias or Prejudice Under 28 U.S. Code 144 and the Due Process Clause of the U.S. Constitution.” (Doc. no. 150 (alteration supplied)). As Chief Judge of the United States District Court for the Northern District of Alabama, I ordered that motion to be referred to Senior Judge C. Lynwood Smith, Jr., for disposition. (Doc. no. 151.)

         Judge Smith's Memorandum Opinion and Order denying plaintiffs' motion was entered on April 3, 2018. (Doc. no. 155.)

         Still not satisfied, [1] plaintiffs filed a “ Motion to Have Judge Lynwood Smith Declared Disqualified From Hearing Their Motion to Disqualify Judge Virginia Emerson Hopkins and to Have His Ruling Declared Void Because of Conflict of Interest that Smith Failed to Disclose.” (Doc. no. 157). Specifically, plaintiffs' motion alleges:

“1. One of the primary defendants in this matter is Rob Riley, son of former Gov. Bob Riley. Most of the other defendants are politically or professionally connected to Rob and Bob Riley.”
“2. According to published reports, Judge Lynwood Smith and Bob Riley are cousins. That means Judge Smith is related to Defendant Rob Riley.”
“3. No. wonder Judge Smith denied the Shulers' motion to disqualify Judge Virginia Emerson Hopkins for obvious bias and prejudice. He obviously is biased and prejudiced toward defendants who either are members of his family and [sic] connected to members of his family.”

Id. at 2, ¶¶ 1-3.

         The statutory provision relevant to the issue raised by plaintiffs' motion is codified in 28 U.S.C. § 455, and the pertinent portions read as follows:

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
. . .
(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i) Is a party to the proceeding, or an officer, director, or ...

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