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Friday, November 22, 2019

Judge denies motion to step aside from case, calling it 'bunk'

By Richard Jones | Apr 20, 2017

General court 10

TALLAHASSEE — Judge Mark E. Walker of the U.S. District for the Northern District of Florida has struck down a motion by a Sarasota-based concrete firm seeking to remove him from hearing a breach of indemnity lawsuit against bought by the company Liberty Mutual Insurance Co.   

In its motion for disqualification, Commercial Concrete Systems LLC said that because U.S. District Judge Mark E. Walker once served as entry-level attorney for a Pennsylvania law firm that currently is advising Liberty Mutual he should step aside in order to avoid any appearance of a conflict of interest.

Walker acknowledged serving as an associate for about three months in 1996 at Cummings, Lawrence & Vezina, which is now known as Vezina, Lawrence & Piscitelli. But Walker denied any connection with the current firm or any of partners or principals.   

Walker compared Commercial Concrete’s motion to the handiwork of magician David Copperfield.

“Apparently, Defendants also aspire to be magicians," Walker wrote. "Their grand finale? Attempting to make a new judge appear in my place out of thin air. Unfortunately for them, law isn’t magic; there must be a legal basis for my recusal. And, like David Copperfield’s tricks, their motion is nothing but smoke and mirrors."

Walker further called the motion “rank forum shopping” and “pure bunk.” 

The case, which is nearly a decade old, revolves around alleged defective work completed by Commercial Concrete during the building of a hotel project. Since Liberty Mutual provided the original performance bond, the project's developers brought claims against the insurer and the bond for what they said were numerous defects in material and construction.

In 2016, Liberty Mutual claimed a breach of an indemnity agreement by Commercial Concrete alleging that the company bore a level of financial responsibility for the insurer's defense of the claims. When Commercial Concrete refused to pay, Liberty Mutual took the matter to court.

According to his ruling, Walker disputed what he determined were the three different reasons presented by the defendants for his disqualification. The first being his prior association with the former incarnation of the plaintiff’s law firm. Walker dismissed this citing See Draper v. Reynolds, 369 F.3d 1270, 1281, 1281 n.18 (11th Cir. 2004), which held that a two-year recusal period after the party receives final compensation would suffice.

The defendants also took issue with Walker receiving campaign contributions from attorneys employed by his old firm. Walker refused this reasoning, saying that the donation was $100 and was given more than a decade ago. Walker said that the amount of time that had passed and the amount of the donation itself do not support the holding of Mayberry v. Pennsylvania, 400 U.S. 455, 465 (1971), which set the precedent for recusal of judges who receive contributions that could have a material impact on a case.

Finally, the defendants alleged that a telephone call between lawyers for the plaintiff’s firm and the judge’s clerk was an improper ex parte, or secret communication. Walker called this claim “unobjectionable and of no consequence.”  

“Only one reasonable conclusion can be drawn here," Walker wrote. "I do not have a personal bias in favor or against Plaintiff’s counsel, nor would a well-informed, objective observer believe that I do.”

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U.S. District Court for the Northern District of Florida, Tallahassee Division