846 F. Supp. 2d 515
E.D. Va.2012Background
- DuPont sued Kolon in the Trade Secrets Case for misappropriation of KEVLAR trade secrets; most claims were dismissed, leaving the trade secrets claim.
- Kolon later asserted antitrust counterclaims in the Antitrust Case, which the Fourth Circuit later revived on appeal.
- During discovery, DuPont alleged spoliation; the Trade Secrets Case was delayed to address spoliation.
- Concurrent proceedings included Akzo N.V. v. DuPont (Akzo Case), where McGuireWoods and FitzpatrickCella represented DuPont; the presiding judge had previously been a partner at McGuireWoods.
- Kolon alleged that DuPont’s handling of Akzo Case materials and the presiding judge’s past association created an appearance of partiality; Kolon sought recusal under 28 U.S.C. §455(a),(b).
- Kolon moved for recusal on November 30, 2011; the court held the motion untimely and denied it on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of the recusal motion under §455 | Kolon contends timeliness not required for §455(b) | DuPont argues motion untimely under §455(b) and (a) | Motion was untimely and denied |
| Whether §455(b)(2) required recusal | Kolon claims the judge or partners' involvement in Akzo Case taints matter | DuPont argues no service in the matter in controversy by judge/partners | No recusal under §455(b)(2) |
| §455(a) appearance of impartiality | Kolon asserts appearance of bias due to past associations | Court finds no reasonable basis for impartiality concerns under Liljeberg | No recusal under §455(a) |
| Relation between Akzo Case and this case (same matter in controversy) | Kolon contends attenuated connection makes Akzo relevant | Cases are distinct; the connection is too tangential and not the same matter | No same matter in controversy; no recusal under §455(b)(2) |
| Canon 3 / waivers and timeliness interplay | Kolon invokes Canon 3 and waiver provisions | Timeliness and waiver are distinct; waiver does not salvage untimely motion | Canon 3 analysis leads to same untimely result; no recusal |
Key Cases Cited
- Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (U.S. 1988) (appearance-of-impartiality standard for § 455(a))
- Chase Manhattan Bank v. Affiliated FM Ins. Co., 343 F.3d 120 (2d Cir. 2003) (assessing appearance of impartiality under § 455(a))
- In re Rodgers, 537 F.2d 1196 (4th Cir. 1976) (recusal when a former partner’s matter overlaps with current case)
- United States v. DeTemple, 162 F.3d 279 (4th Cir. 1998) (scope of § 455(b)(2) and attenuation between matters)
- United States v. Owens, 902 F.2d 1154 (4th Cir. 1990) (timeliness required for recusal motions under §455)
- Summers v. Singletary, 119 F.3d 917 (11th Cir. 1997) (timeliness as a component of § 455)
- United States v. York, 888 F.2d 1050 (5th Cir. 1989) (waiver vs. timeliness distinction under § 455)