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Straw v. City of South Bend

United States District Court, N.D. Indiana, South Bend Division

November 30, 2016

ANDREW U.D. STRAW, Plaintiff,
v.
CITY OF SOUTH BEND, et al., Defendants.

          OPINION AND ORDER

          JON E. DEGUILIO, JUDGE UNITED STATES DISTRICT COURT

         On September 9, 2016, this case was reassigned to the undersigned, at which time seven motions were pending, including Plaintiff Andrew Straw's first and second motions for summary judgment [DE 11, 12], Straw's first motion to disqualify defense counsel Aladean DeRose [DE 15], Defendants City of South Bend and Mayor Pete Buttigieg's motion to dismiss [DE 32] and motion for summary judgment [DE 33], Straw's request to strike the defendants' responsive filings to his summary judgment motion [DE 36], and the defendants' motion for leave to amend those summary judgment related responsive filings [DE 41]. Since the reassignment of this case, another eight motions have been filed, including the defendants' request to strike a random declaration by Straw wherein he discusses his financial hardship [DE 55], which provoked Straw to respond and defendants to motion for that response to be struck [DE 57]. Straw then requested a telephonic Rule 16 conference [DE 58]. Most recently, Straw filed two more motions to disqualify defense counsel Aladean DeRose [DE 60, 73], and he included a request that Magistrate Judge Gotsch be recused [DE 60]. In yet another motion, Straw motions for the recusal of the undersigned [DE 65]. Straw also filed a “Motion for Order to Show Cause” which is unclear as to the exact relief being sought, but it seemingly seeks to have attorney Stephanie Nemeth disqualified [DE 63]. To further complicate matters, Straw filed a motion for leave to amend his complaint in order to add a first amendment claim and an ADA retaliation claim [DE 62]. The Clerk is DIRECTED to term all of the pending motions in the manner specified herein. To the extent Straw's series of convoluted filings seek additional relief, such relief is DENIED at this time.

         Straw's Requests for Recusal/Disqualification

         District Judge

         As to Straw's request that I recuse from this case, the sole basis Straw seeks such relief is on account of my rulings which were adverse to Straw's position in case 3:14-cv-1772, and because I denied Straw a temporary restraining order in the instant case. However, those rulings were made on the merits of the claims alleged in the judicial record and nothing more. Morever, the ‘1772 case was ultimately dismissed without prejudice based on Straw's voluntary dismissal after he gave notice of wanting to pursue his claims in another forum. Because my unfavorable rulings alone do not suffice to establish judicial bias or misconduct, see, e.g., Liteky v. United States, 510 U.S. 540, 555 (1994); Brokaw v. Mercer County, 235 F.3d 1000, 1025 (7th Cir. 2000), such relief is DENIED [DE 65].

         Magistrate Judge

         Straw has also sought to have Magistrate Judge Gotsch recused on account of his recent selection as the Magistrate Judge, from which DeRose served on the judicial merit selection panel [DE 60]. However, DeRose served on the merit selection panel along with various others, and because the work of the panel is confidential the views of any particular panel member is not publicly known, even to the applicants. Moreover, it was the District Judges of the Northern District of Indiana who ultimately selected Magistrate Judge Gotsch from the five individuals recommended by the merit selection panel, and that selection process is long over.

         Straw has not provided any legal basis supporting his belief that the Magistrate Judge ought to be recused under these circumstances. In addition, to the extent Straw contends that Magistrate Judge Gotsch has revealed his “bias” in favor of the City of South Bend based on a recent ruling [DE 52], Straw is mistaken for two reasons. First, that ruling by Magistrate Judge Gotsch did not strike from the summary judgment record Straw's letter from the Federal Highway Administration [DE 13-2]; rather, Magistrate Judge Gotsch simply clarified that Straw was allowed to file the letter, but defendants retained the right to later challenge its propriety [DE 52]. Second, the Magistrate Judge's ruling, even if somehow perceived as detrimental to Straw, was based solely on the record and does not suffice to establish judicial bias or misconduct on the part of the Magistrate Judge. See, e.g., Liteky, 510 U.S. at 555; Brokaw, 235 F.3d 1025. Accordingly, Straw's request for the recusal of Magistrate Judge Gotsch is DENIED [DE 60].

         Defense Counsel

         Straw has repeatedly sought the disqualification of defense attorney Aladean DeRose [DE 15, 60, 73]. Straw contends that it violates Rules 3.7 and 8.4(g) of the Indiana Rules of Professional Conduct for DeRose to serve as the City of South Bend's attorney in this lawsuit, where her actions as the City's ADA Coordinator are at issue. Straw indicates that he intends to depose DeRose concerning their prior communications about alleged ADA parking violations in South Bend, which makes her a necessary witness. The Court disagrees.

         Whether the parking situation in downtown South Bend is noncompliant with the ADA appears to be an objective circumstance-thus, there appears to be no reason why the testimony from DeRose about her subjective motives, purposes, or thoughts would be essential to the ultimate issue to be decided. Moreover, it appears unlikely that DeRose would be the only person available to testify on the status of ADA compliant parking in South Bend, such that she would be a necessary witness. Should DeRose's testimony become necessary on some points, then the issue can be raised again at that time.

         Straw also argues that DeRose ought to be disqualified for violating Rule 8.4 which prevents attorney misconduct, in relevant part, conduct manifesting bias or prejudice premised on disability. However, that rule also indicates that “[l]egitimate advocacy respecting the foregoing factors [including disability] does not violate this subsection.” In other words, DeRose's role in serving as the advocate on behalf of the City against charges of ADA noncompliance does not violate this rule. Accordingly, Straw's requests to have attorney Aladean DeRose disqualified are DENIED at this time [DE 15, 60, 73], and the Court declines to summarily strike the filings that she has made on behalf of the defendants.

         Other Counsel

         Straw has also motioned for an order to show cause for why attorney Stephanie Nemeth should not be ordered to make her appearance in this case, so Straw can then ask her to be disqualified [DE 63]. As Straw notes in his motion, Nemeth has never entered her appearance in this case; rather, she is representing DeRose in a state case[1] where an injunction has been sought against Straw because he purchased an internet domain name in DeRose's name which is being used ...


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