1

IN THE UNITED STATES DISTRICT COURT FOR THE 

NORTHERN DISTRICT OF FLORIDA 

PENSACOLA DIVISION 

BARBARA ANN KELLY, 

 Plaintiff, 

v. Case No. 3:10cv392-MW/EMT 

ROBERT DAVIS, SEASIDE 

COMMUNITY DEVELOPMENT 

CORP., SEASIDE COMMUNITY 

REALTY, INC., SEASIDE I 

HOMEOWNERS ASSOCATION, 

INC., & TOWN COUNCIL, INC., 

 Defendants. 

___________________________/ 

RECUSAL ORDER 

Plaintiff Barbara Ann Kelly moves for my disqualification as presiding 

district judge under 28 U.S.C. § 455(a) and (b)(5)(iii). ECF No. 323. The motion 

is untimely given that it comes more than two years after Plaintiff learned of the 

asserted grounds and did not bring them to the attention of this Court until after 

unfavorable rulings. It is also without merit in fact or law. For the reasons that 

follow, the motion is denied. For reasons not suggested by Plaintiff, I choose to 

voluntarily recuse myself from this case; namely, Plaintiff’s unfounded attacks on 

my wife’s character in the motion for disqualification. 

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I 

On February 16, 2012, the President nominated me to serve as a district 

judge on this Court. The Senate confirmed my nomination on December 6, 2012. 

I received my commission the next day. 

On December 21, 2012, an administrative order reassigned me to preside 

over almost 200 already pending cases. ECF No. 133. This case was among them. 

In brief, Ms. Kelly brought a number of claims related to her purchase of a 

property in the Seaside, Florida, community. I refer to the property as Lot 13. I 

refer to this case, 3:10cv392, as the “Seaside federal case.”

The same administrative order assigned me to preside over another case with 

the same plaintiff along with her husband, Barbara Ann Kelly & Gregory Brian 

Myers v. Regions Bank, 3:11cv252 (N.D. Fla.) (“Regions federal case”). 

On December 23, 2012, I left for a preplanned trip out of the country. I 

returned to the office on January 3, 2013, and immediately began reviewing the 

cases to which I had been assigned. When reviewing the hundreds of cases 

assigned to me for potential conflicts, I learned that lawyers from the firm Holland 

& Knight were representing Regions Bank in the Regions federal case. Though 

she had not entered an appearance in that case, my wife Karen Walker is the senior 

partner in charge of the Tallahassee, Florida, office of Holland & Knight. So the 

first and only order I issued in the Regions federal case was to disqualify myself. I 

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explained at the time that I was doing so because my “spouse is a partner with 

Holland & Knight, LLP.” Case No. 3:11-cv-252, ECF No. 134 (Jan. 4. 2013). I 

did so within forty-eight hours of discovering the conflict. 

Because I immediately disqualified myself from the Regions federal case, I 

did not review its substance. At a glance, it concerns claims by Ms. Kelly and Mr. 

Myers against Regions Bank relating to a loan modification on a different property 

in Seaside, referred to here as Lot 6. 

For more than two years, I presided over this case with no objection from 

any party. It had an extensive set of summary-judgment motions. For the most 

part, Defendants won and Plaintiff lost. Specifically, on July 17, 2014, I denied 

Plaintiff’s motion for partial summary judgment against Defendant Seaside I 

Homeowners’ Association. ECF No. 279. I also granted summary judgment in 

favor of Defendants Town Council, Inc., and Seaside I Homeowners’ Association 

as to Counts VII and VIII. ECF No. 278. On August 26, 2014, I denied Plaintiff’s 

partial summary judgment motion against Defendant Seaside Community 

Development Corporation (SCDC). ECF No. 294. On January 14, 2015, I granted 

the remaining Defendants’ summary judgment motion on all counts except certain 

parts of the declaratory-judgment claim, Count IX. ECF No. 308. I have ordered 

further briefing those claims for declaratory relief, which are still pending. 

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II

Plaintiff has now moved for disqualification. ECF No. 323. Apart from 

what I have already described, she asserts the following grounds. 

On July 29, 2010, Regions Bank filed a complaint in state court styled 

Regions Bank v. Gregory Brian Myers, Barbara Ann Kelly, Seaside III 

Neighborhood Association, Inc., Case No. 10-CA-001162 (“Regions state case”). 

ECF No. 323, at 3. Although the record of that case is not before this Court, 

Defendants say that Regions Bank sought foreclosure on Lot 6. ECF No. 324. On 

October 7, 2010, Ms. Kelly filed her complaint in the Seaside federal case. On 

May 24, 2011, Ms. Kelly and Mr. Myers filed their complaint in the Regions

federal case. 

During a June 6, 2012, deposition in the Seaside federal case, Defendants’ 

attorneys asked Mr. Myers about Lot 6, which he and Ms. Kelly jointly own. 

Defendants’ attorneys also asked Mr. Myers about Lot 3 in the Watercolor 

community. According to the transcript, Mr. Myers stated that “Regents Bank” 

held mortgages on those properties and sought foreclosure. ECF No. 217-2, at 10. 

Amidst lengthy errata, Mr. Myers says this is a spelling error; that it should say 

“Regions.” ECF No. 217-2, at 69. 

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In reproducing the question-and-answer in her motion, Ms. Kelly switched 

out the word “Regents” in two places and inserted “Regions.” ECF No. 323, at 4. 

The actual transcript reads thus: 

Q: Lot 6, Seaside 14, that is a lot in Seaside? 

A: Correct. 

Q: And how is that titled? 

A: As stated, Tenants by the Entirety. 

Q: All right. And is there still mortgage in favor of Regent’s Bank?

A: There’s a mortgage secured on that lot. Regents Bank is the lender.

ECF No. 217-2, at 10. Ms. Kelly’s motion says this:

 

 Q: Lot 6, Seaside 14, that is a lot in Seaside? 

 A: Correct. 

 Q: And how is that titled? 

 A: As stated, Tenants by the Entirety. 

Q: All right. And is there still mortgage in favor of Regions’s [sic] Bank?

A: There’s a mortgage secured on that lot. Regions Bank is the lender.

 Q: And that is in foreclosure? 

 A: Yes. 

Id. The term sic is properly used “following a word misspelled or wrongly used in 

the original.” Chicago Manual of Style § 13.59. So it would have been proper to 

reproduce the text as “Regent’s [sic] Bank.” If there is to be a substitution for the 

corrected word, that must be indicated by brackets. See id. § 13.58. That is, it 

would have been proper to reproduce it as “[Region’s] Bank.” 

Defendants submitted portions of this deposition in support of their 

summary-judgment motion. So far as I can tell from the record, Regions Bank has 

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no interest in the property at issue in this case, Lot 13. Ms. Kelly does not suggest 

otherwise in her motion. 

On August 29, 2012, Defendant SCDC moved in the Seaside federal case to 

compel Ms. Kelly to produce tax returns for 2004 and 2009. ECF No. 173. The 

motion referenced the Regions federal case. Id. On September 19, 2012, the 

assigned magistrate judge granted the motion to compel, concluding that the tax 

returns were relevant to Plaintiff’s claims and SCDC’s defense that Plaintiff did 

not have financial resources to complete construction of a house on Lot 13. ECF 

No. 183. In so doing, the magistrate judge mentioned in a footnote that Ms. Kelly 

had brought predatory lending claims in the Regions federal case, and noted it 

concerned Lot 6. Id. at 2 n.1. 

On November 13, 2012, a lawyer at Holland & Knight sent an email to 

Plaintiffs’ attorney in the Regions federal case. Ms. Kelly offers what appears to 

be a redacted version of the email. The Holland & Knight lawyer says this: 

Please advise by Wednesday whether you intend to meet that 

obligation by the end of the week. If not, we will move to strike the 

supplemental Myers Declaration, identify for the Court . . . the 

discovery abuses in our motion, and advise defense counsel in the 

other action of Myers’ tactics.

ECF No. 323-3 at 2. According to Plaintiff, the “other action” referenced is 

the Seaside federal case. ECF No. 323, at 5. 

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In the Regions federal case, Regions Bank moved for summary judgment on 

October 18, 2012. No. 3:11cv252, ECF No. 106. In support, Regions Bank 

attached excerpts of Mr. Myers’s deposition testimony in which he discussed Lot 

13. This is the full exchange: 

Q Talking about Lot 13 that your wife purchased shortly after the Lot 

6, there's litigation involving that case; correct? 

A Correct. 

Q And without getting into too many details, can you just generally 

give us in one or two sentences, the nature of that lawsuit? 

A I think I already summarized that for you. You asked me about that 

earlier. 

Q Well, I'm asking it now. What is the nature of the lawsuit regarding 

Lot 13? 

A Breach of contract. 

Q And your wife has accused the developers of Seaside of being 

engaged in a criminal scheme; is that correct? 

A I can’t answer that. You’d have to ask her attorney. 

Q You’ve not seen the letter or helped your wife prepare a letter to a 

Doris Goldstein that references a criminal scheme? 

A It’s a crime in the state of Florida to sell lots that are not properly 

platted. Seaside Community Development Corporation, Robert Davis, 

Seaside Community Realty and others, in my opinion, were fully 

aware that those lots were not properly platted and they are not 

properly platted. And Walton County has indicated they are not 

properly platted. And that is a crime in the state of Florida to sell lots 

that are not properly platted. So to the extent it is a crime and they 

acted together, you could characterize that as a criminal scheme. 

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Case No. 3:11cv252, ECF No. 107-2, at 23. 

On December 14, 2012, several Defendants in the Seaside federal case 

moved for summary judgment. ECF No. 216. In footnote 2 of the accompanying 

statement of facts, those Defendants cited Mr. Myers’s deposition and also material 

from the Regions federal case, as follows: 

While it appears clear from her testimony Ms. Kelly testified she was 

a homemaker, Defendants have learned of evidence subsequent to her 

deposition of October 6, 2011[,] suggesting that Ms. Kelly owned a 

mortgage brokering firm called MetFund and employed her husband 

at that firm from 1995 to 2007. Ms. Kelly is the president of this 

corporation. (See Deposition of Greg Myers, Volume 4, 853:20 to 

853:24. See also, generally, Barbara Ann Kelly and Gregory Myers v. 

Regions Bank, Case No. [3]:11cv252-MCR/EMT, Doc. 107, Regions 

Bank Statement of Undisputed Facts.) 

 

ECF No. 217, at 2 n.2. Ms. Kelly says that “[i]t is apparent that Regions Bank 

Statement of Undisputed Facts was injected surreptitiously into the Seaside Federal 

Case in an effort to prejudice Ms. Kelly in the eyes of Ms. Walker’s spouse, Judge 

Walker.” ECF No. 323, at 7 (footnote omitted). 

Unless Defendants are clairvoyant, that is obviously false. The 

administrative order assigning me to both cases was not entered until a week later. 

See ECF No. 224 (dated December 21, 2012). Plaintiff’s lawyer ought to more 

carefully consider the facts arranged chronologically in his own motion before 

suggesting that opposing counsel had such a motive. 

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All of this occurred, of course, before these cases were assigned to me on 

December 21, 2012. Before I returned to the office on January 3, 2013, on January 

2, 2013, Ms. Kelly and Mr. Myers were apparently considering a motion for my 

recusal from the Regions federal case. A lawyer at Holland & Knight sent an 

email to Plaintiff’s attorney stating “If you can wait until Monday, [a lawyer in the 

Tallahassee office of Holland & Knight] can check with Karen Walker to see if 

there is a set procedure.” ECF No. 323-5, at 2. Ms. Kelly says that “it may be 

reasonably inferred . . . that Ms. Walker engaged in ex parte communications with 

Judge Walker concerning Judge Walker’s ‘procedure’ for disqualifying himself 

from the Regions Federal Case.” ECF No. 323, at 7–8 (footnotes omitted). Ms. 

Kelly goes on to say “[i]t is not known at this time whether any ex parte

communications, if any, between Ms. Walker and Judge Walker included any 

advice from Ms. Walker concerning Judge Walker’s disqualification in the 

Regions Federal Case or the Seaside Federal Case.” Id. n.13. 

I most certainly did not discuss either case with my wife. Moreover, it is not 

reasonable to infer otherwise from that email. 

Lastly, Ms. Kelly cites an October 4, 2013, notice of supplemental authority 

which Defendant SCDC filed in the Seaside federal case in support of its 

summary-judgment motion. ECF No. 271. The supplemental authority is an order 

issued by the chief district judge presiding over the Regions federal case. The 

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chief district judge denied Ms. Kelly and Mr. Myers’s partial-summary-judgment 

motion and granted Regions Bank’s summary-judgment motion. The order 

mentions Ms. Kelly’s purchase of Lot 13 in its opening paragraph. It then 

describes how Ms. Kelly and Mr. Myers had three mortgage loans from Regions 

Bank on three other properties. Nothing in the order suggests that Regions Bank 

has ever held any interest in Lot 13.1

Based on those facts, Plaintiff asserts that I should be disqualified because 

my wife has “an interest that could be substantially affected by the outcome of the 

proceeding,” 28 U.S.C. § 455(b)(5)(iii), and my impartiality might reasonably 

questioned under 28 U.S.C § 455(a). 

III

A disqualification motion presents a more sensitive issue than most others 

that come before a judge. The parties to a case deserve an impartial judge. The 

public should have confidence in the integrity of the judicial process. The danger 

of parties abusing the process to get a judge more to their liking is always present. 

The hardest part is that the judge must realize that instead of judging others, one is 

judging his or her own impartiality. Ruling on that sort of issue requires selfreflection, candor, and humility. This is, after all, a “government of laws, and not 

of men.” Marbury v. Madison, 5 U.S. 137, 163 (1803). 

 

1

 The order is found in the record of the Regions federal case at 3:11cv252, ECF No. 

172. It is also found in the record of Seaside federal case, 3:10cv392, ECF No. 271-1. 

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“It has been stated on numerous occasions that when a judge harbors any 

doubts concerning whether his disqualification is required he should resolve the 

doubt in favor of disqualification.” Parker v. Connors Steel Co., 855 F.2d 1510, 

1524 (11th Cir. 1988). Yet disqualification must be “supported by some factual 

basis.” United States v. Cerceda, 188 F.3d 1291, 1293 (11th Cir. 1999) (per 

curiam). It “cannot be based on ‘unsupported, irrational or highly tenuous 

speculation.’ ” Id. (quoting In re United States, 666 F.2d 690, 694 (1st Cir.1981)). 

“Courts should take special care in reviewing recusal claims so as to prevent 

parties from ‘abus[ing] § 455 for a dilatory and litigious purpose based on little or 

no substantiated basis.’ ” Sensley v. Albritton, 385 F.3d 591, 598 (5th Cir. 2004) 

(quoting Travelers Ins. Co. v. Liljeberg Enterprises, Inc., 38 F.3d 1404, 1409 n.8 

(5th Cir.1994)). 

A 

A motion to disqualify a judge under § 455(a) or (b) must be timely made. 

Summers v. Singletary, 119 F.3d 917, 921 (11th Cir. 1997); United States v. Slay, 

714 F.2d 1093, 1094 (11th Cir. 1983) (per curiam). This is so because those rules 

are not meant “to allow counsel to make a game of the federal judiciary’s ethical 

obligations.” Delesdernier v. Porterie, 666 F.2d 116, 121 (5th Cir. 1982). Indeed, 

the “reason most often given for applying a timeliness requirement to recusal 

motions is that ‘[t]he judicial process can hardly tolerate the practice of a litigant 

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with knowledge of circumstances suggesting possible bias or prejudice holding 

back, while calling upon the court for hopefully favorable rulings, and then seeking 

recusal when they are not forthcoming.’ ” In re Kensington Int’l Ltd., 368 F.3d 

289, 312 (3d Cir. 2004) (quoting Smith v. Danyo, 585 F.2d 83, 86 (3d Cir.1978)). 

In other words, a party “may not lie in wait, raising the recusal issue only after 

learning the court’s ruling on the merits.” Phillips v. Amoco Oil Co., 799 F.2d 

1464, 1472 (11th Cir. 1986). The rule is that a motion to disqualify “must be filed 

within a reasonable time after the grounds for the motion are ascertained.” 

Summers, 119 F.3d at 921. If the facts are known, waiting until after an adverse 

decision is “too late.” Id. 

Plaintiff’s motion for disqualification is untimely. Almost every fact that 

she asserts in support of her motion was known to her when this case was assigned 

to me more than two years and a half years ago. The notice of supplemental 

authority came later, but Plaintiff said nothing about it. Most importantly, Plaintiff 

did not seek disqualification until after this Court ruled against her. 

Plaintiff asserts that the issue is not waived because “there was no disclosure 

on the record.” ECF No. 323, at 13. That is plainly wrong. The facts Plaintiff 

identifies were known to her more than two years ago. Most of those asserted 

grounds are in the records of the cases. The only things that were not in the record 

were the emails between the lawyers. Plaintiff knew of these. I did not. Nor 

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could I know of them. Thus, there was nothing for me to disclose. Plaintiff did 

not bring them to this Court’s attention. If there was a failure to disclose, it was 

Plaintiff that failed to disclose. 

The Eleventh Circuit has squarely rejected the identical tactic: 

 

In other words, [the plaintiff’s attorney] made a carefully thought out, 

coldly calculated, eyes open decision not to raise the issue and instead 

to gamble on winning anyway. The recusal provision was intended to 

be a shield, not a sword. An issue involving recusal cannot be used as 

an insurance policy to be cashed in if a party’s assessment of his 

litigation risks turns out to be off and a loss occurs. Plaintiffs waived 

the issue. 

Bivens Gardens Office Bldg., Inc. v. Barnett Banks of Florida, Inc., 140 F.3d 898, 

913 (11th Cir. 1998). 

Plaintiff’s motion comes at least two years too late. I conclude that it is 

untimely and Plaintiff has waived the issue of disqualification. 

B 

Even if the disqualification motion were timely, it is wholly without merit. 

This is not a close call. 

Among other reasons, a judge must disqualify himself whenever the judge’s 

spouse “[i]s known by the judge to have an interest that could be substantially 

affected by the outcome of the proceeding.” 28 U.S.C. § 455(b)(5)(iii). In 

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Potashnick v. Port City Const. Co., 609 F.2d 1101 (5th Cir. 1980),2 the court 

reasoned that “a partner’s interest in the outcome of any matter handled by his law 

firm is substantially greater than that of an associate or an employee.” Id. at 1113. 

The court said the “outcome of any proceeding handled by a law firm may affect 

the partners’ financial interests as well as certain noneconomic interests, including 

the reputation and goodwill of the firm.” Id. The court held that “when a partner in 

a law firm is related to a judge within the third degree, that partner will always be 

‘known by the judge to have an interest that could be substantially affected by the 

outcome’ of a proceeding involving the partner’s law firm.” Id. (emphasis added). 

It was for this reason that I immediately disqualified myself from the 

Regions federal case; it involved a law firm in which my spouse is a partner. But I 

do not know of any interest of my wife that could be substantially affected by the 

outcome of this proceeding. 28 U.S.C. § 455 (b)(5)(iii). Ms. Kelly has certainly 

pointed to none. She says that Regions Bank has “a significant financial interest in 

numerous properties in Seaside.” She has not described that interest. And she has 

not said how any ruling by this Court might substantially affect such an interest. 

Even if she had, the inquiry is not Regions Bank’s interest. 

 

2

See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) 

(adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior 

to the close of business on September 30, 1981). 

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The proper inquiry is the interest of the judge’s family member. My wife’s 

law firm is not “handling” this case. The fact that Defendants cited portions of the 

record of Regions federal case in the Seaside federal case does not make my wife’s 

law firm involved in this case. In many of the cases rejecting a disqualification 

motion, the judge has a family member working for a law firm that represents a 

party in unrelated matters, but that law firm is not representing the party in the case 

before the court. See, e.g., In re Medtronic, Inc. Sprint Fidelis Leads Products 

Liab. Litig., 601 F. Supp. 2d 1120 (D. Minn. 2009) (Kyle, J.). Here, of course, 

Regions Bank is not a party. And my wife’s law firm is not representing any party. 

What Plaintiff asks this Court to do is go one step further and find it is improper 

for a judge’s spouse to belong to a firm that represents another party which is not 

involved in the litigation and has no identifiable interest in the litigation. 

The argument seems to be that Regions Bank might steer its legal business 

elsewhere because of this Court’s rulings. I agree with Judge Kyle’s assessment of 

this type of argument. According to Plaintiff, my wife could be affected if this 

Court were to rule in a particular way that hurts Regions Bank (though Plaintiff 

does not say how); if Regions Bank then retaliated by withdrawing business from 

Holland & Knight; if the removal of that business impaired my wife’s financial 

interests; and if that impairment were substantial. See id. at 1125–26. The other 

side of the argument is that my wife could be affected if this Court were to rule in a 

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particular way benefiting Regions Bank (again, Plaintiff does not say how); if

Regions Bank rewarded Holland & Knight by funneling it more business; if the 

additional business enhanced my wife’s financial interests; and if that enhancement 

were substantial. Id. I also agree with Judge Kyle’s conclusion that this theory is a 

“hypothetical house of cards.” Id. 

Plaintiff says that Regions Bank is an important, long-term client of Holland 

& Knight. If that is so “it seems particularly unlikely that any ruling the Court 

might make in this case, whether favorable or unfavorable to [the non-party 

Regions Bank], would have an impact on the quantum of business the firm 

receives.” Id. at 1125. Regions Bank is presumed to know that it would be 

improper for this Court to be influenced by Regions Bank’s relationship with 

Holland & Knight. See id. It cannot reasonably be expected to think less of a firm 

because of rulings in this case. Id. “Simply put, it is not reasonable to accept 

Plaintiff[’s] argument that the outcome of the proceeding adversely would affect 

[Holland & Knight’s] relationship with [Regions Bank].” Id. 

Ms. Kelly has pointed to no authority suggesting that § 455(b)(5)(iii) 

requires disqualification whenever a judge’s spouse’s law firm’s client who is not a 

party to a case might somehow be impacted by a ruling. It is simply “unreasonable 

and speculative to conclude” that the outcome of this proceeding would 

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substantially affect my spouse’s interests. See Microsoft Corp. v. United States, 

530 U.S. 1301, 1302 (2000) (Statement of Rehnquist, C.J.). 

I conclude that disqualification is not required by § 455(b)(5)(iii). 

C

More broadly, under 28 U.S.C. § 455(a), a judge must “disqualify himself in 

any proceeding in which his impartiality might reasonably be questioned.” The 

standard is “whether an objective, disinterested, lay observer fully informed of the 

facts underlying the grounds on which recusal was sought would entertain a 

significant doubt about the judge's impartiality.” See United States v. Kelly, 888 

F.2d 732, 744–45 (11th Cir. 1989). The question is how those facts would appear 

to a “well-informed, thoughtful and objective observer, rather than the 

hypersensitive, cynical, and suspicious person.” United States v. Jordan, 49 F.3d 

152, 156 (5th Cir. 1995). Put another way: 

[W]hen considering disqualification, the district court is not to use the 

standard of “Caesar’s wife,” the standard of mere suspicion. That is 

because the disqualification decision must reflect not only the need to 

secure public confidence through proceedings that appear impartial, 

but also the need to prevent parties from too easily obtaining the 

disqualification of a judge, thereby potentially manipulating the 

system for strategic reasons, perhaps to obtain a judge more to their 

liking. 

In re Allied-Signal Inc., 891 F.2d 967, 970 (1st Cir. 1989). Indeed, “[t]he care with 

which these rules are drafted should make a court hesitate to treat the general 

language of § 455(a) as a bar to judicial service whenever a relative has something 

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to do with a party.” Matter of Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 839 

F.2d 1226, 1229 (7th Cir. 1988). The point applies with even more force when the 

relative has nothing to do with any party to the case. 

 By way of example, Hammer v. Sam’s East, Inc., 754 F.3d 492 (8th Cir. 

2014), addressed a similar set of circumstances. The plaintiffs asserted that two 

retail stores violated federal law by printing too many digits of credit card numbers 

on receipts. Id. at 495. The district judge’s son worked as a lawyer in a firm 

representing a company that partnered with the retailers to finance credit for the 

retailer’s customers. Id. at 503. The district judge declined to recuse himself. On 

appeal, the court held that the “nature of the alleged conflict is simply too remote, 

speculative, and contingent to give rise to a situation in which the judge’s 

impartiality might reasonably be questioned by a member of the public.” Id. at 504 

(internal quotation marks omitted). The court noted that (1) the finance company 

was not a party; (2) there was little possibility it would become a party; (3) the 

judge’s son was in no way involved with the case; and (4) no lawyer in that firm 

had ever appeared in the case in any capacity. The court said that the plaintiff’s 

counsel “seems to be grasping at straws blowing in the wind in order to litigate this 

case further.” Id.

The same is true here. Regions Bank is not a party to this case. There is 

little if any possibility of it becoming a party. My wife’s firm is not involved in 

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this case. Ms. Kelly has not identified any interest of Regions Bank, Holland & 

Knight, or my wife that could be affected by the outcome of this case. See

Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 857 (1988). Even if 

she had, remote, speculative, and contingent considerations are not grounds for 

disqualification. The Seventh Circuit explained this well: 

Judges regularly sit in cases that could affect their well-being 

tangentially. A judge who owns a house could be affected by a 

decision influencing the rate of interest, a judge who owns stock in the 

coal industry could be affected by a decision in a case concerning 

nuclear power, and so on. These indirect effects do not cause 

informed, reasonable observers to doubt a judge’s disinterest. 

Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 839 F.2d at 1229 (Easterbrook, J.). 

For these reasons, I conclude that an objective observer, informed of the 

relevant facts, would not find that my participation in this case gives rise to an 

appearance of partiality. Disqualification is not required under 28 U.S.C. § 455(a).

IV 

 I conclude that the motion contains no facts or law supporting 

disqualification. Ironically, I will recuse myself because of the false accusations 

made by Plaintiff’s lawyer. 

 A federal judge must have a “sticks and stones” approach to things. And for 

good reason; a judge without the stomach for unfounded criticism should not be a 

judge. I expected criticism as a state court judge. I expect criticism as a federal 

judge. It is part of the job. I understand, too, that a lawyer’s considered decision 

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to ask a judge to disqualify herself or himself is not an easy one to make. A lawyer 

must sometimes ask for that relief. A judge presented with such a request must not 

take undue offense. 

 The issue here, though, is the ungentlemanly, unprofessional, and 

completely unfounded attacks on my wife’s character. I refer to two assertions in 

the motion. It says “it may be reasonably inferred . . . that Ms. Walker engaged in 

ex parte communications with Judge Walker concerning Judge Walker’s 

‘procedure’ for disqualifying himself from the Regions Federal Case.” ECF No. 

323, at 7–8 (footnotes omitted). It goes on to say “[i]t is not known at this time 

whether any ex parte communications, if any, between Ms. Walker and Judge 

Walker included any advice from Ms. Walker concerning Judge Walker’s 

disqualification in the Regions Federal Case or the Seaside Federal Case.” Id. 

n.13. 

Again, I expressly reject those assertions as completely false. There was no 

ex parte communication. It is not reasonable to infer that there was from that 

email. Counsel for plaintiff falsely suggested that my wife lobbied me on behalf of 

a client in violation of numerous rules of professional conduct for lucre or malice. 

That counsel included some language of qualification fools no one; the intent was 

to smear without cause. To be sure, Plaintiff’s lawyer presented no factual basis 

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for such an assertion. Obviously, this is a not-so-clever ploy to re-litigate 

unfavorable rulings rather than properly appeal them to the Eleventh Circuit. 

When I was a practicing lawyer, I would not lightly imply that a fellow 

lawyer or a judge had behaved unethically. A useful guide is the Preamble to the 

Rule Regulating the Florida Bar: “A lawyer should use the law’s procedures only 

for legitimate purposes and not to harass or intimidate others. A lawyer should 

demonstrate respect for the legal system and those who serve it, including . . . other 

lawyers.” A lawyer upholds those principles by, for example, complying with 

Federal Rule of Civil Procedure 11(b) and not presenting a motion “for any 

improper purpose” or making factual contentions without evidentiary support. 

Plaintiff’s lawyer that signed the disqualification motion should take note of his 

duties under Rule 11. See, e.g., Drake v. Birmingham Bd of Educ., 476 F. Supp. 2d 

1341, 1348 (N.D. Ala. 2007). 

 I am a relatively new federal judge. I did not expect baseless attacks such as 

these to be leveled by a member of the bar of this Court. Frankly, I was offended. 

Under the rules of professional conduct, a lawyer should not make such baseless 

attacks. Where I come from, a gentleman would not. 

 The passage of time brings perspective. But I am concerned about my 

ability to completely set aside my initial reaction to this motion. A good judge 

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should engage in self-reflection in determining whether to remain on a case. And, 

I strive to be a good judge. 

 A good example is found in United States v. Meyerson, 677 F. Supp. 1309 

(S.D.N.Y. 1988). The district judge found there was no basis for disqualification. 

Yet he chose to recuse himself for these reasons: 

The people of the United States and the defendants are entitled to as 

fair a trial as any judge in the district can give them. I resent the 

unsupported assertions of the United States Attorney and his tactics in 

attempting to disqualify me. They apparently arise from a belief that 

my understanding of the law and the proper conduct of an attorney for 

the government would hamper the way he wants to prosecute this 

case. I doubt that I can any longer maintain that impartiality and the 

appearance of impartiality which are necessary to the proper 

administration of justice. I am pleased that in this district I can thus 

indulge myself, because there are so many other judges who are 

eminently qualified to rule upon the motions and preside at any trial of 

this case.

Id. at 1315. 

 Perhaps if the false accusations were aimed solely at me, it would be 

different. But they were aimed at my wife as well. I love my wife. I admire her 

industry, judgment, and integrity. I have known no finer person. I deeply resent 

the unprofessional attack on her character. It would be disingenuous for me to say 

otherwise. 

In all likelihood, I could and would fairly resolve whatever issues needed to 

be resolved to conclude this case. But close questions should be resolved in favor 

of recusal. In the end, I think it is best to let another judge take over this case. 

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I am troubled to reward Plaintiff for this behavior. However, I am relieved 

of those concerns by confidence in my colleagues on this Court to preside over the 

remainder of this case, and judge it fairly and wisely. 

 For these reasons, 

IT IS ORDERED: 

1. Plaintiff’s motion, ECF No. 323, is DENIED. 

 

2. However, for other reasons articulated here, I recuse myself from further 

participation in this case. 

SO ORDERED on August 24, 2015. 

 s/Mark E. Walker 

 United States District Judge 

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