Dillon v. Select Portfolio, et al.

2008 DNH 149

Opinion

Dillon v. Select Portfolio, et a l . 07-CV-070-SM 08/15/08 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Michael C. Dillon, Plaintiff

v. Civil No. 07-cv-70-SM Opinion No. 2008 DNH 149 Select Portfolio Servicing; Harmon Law Offices, P.C.; Merrill Lynch Mortgage Capital; Merrill Lynch Mortgage Investors; and LaSalle Bank National Association, Defendants

O R D E R

The court routinely and periodically runs software designed

to identify potential conflicts with respect to matters assigned

to the judges. A recent such check identified a potential

conflict in connection with the defendant LaSalle Bank, N.A.,

apparently arising from the fact that Bank of America purchased

LaSalle Bank last October.

LaSalle Bank did not disclose that change in ownership, and

did not meet its continuing obligation to keep the court informed

about parent/subsidiary relationships. Upon discovery of the

potential conflict, a deputy clerk discussed the matter with

counsel, and a conference call with the court was scheduled for

August 12, 2008. Counsel to both plaintiff and LaSalle

participated in the conference call. Counsel to LaSalle confirmed that Bank of America had acquired LaSalle Bank, N.A.,

on October 1, 2007. The undersigned owns Bank of America stock

and owned that stock on October 1, 2007. The undersigned now

"knows of his financial interest in a party," which requires

disqualification, or recusal. 28 U.S.C. § 455(b).

While one can argue the wisdom of an inflexible rule

requiring recusal based upon even a very minor holding of, say,

100 shares, in a giant corporation, nevertheless, that is the

rule. For recusal purposes, a "financial interest" in a party

means "ownership of a legal or equitable interest, however

small." 28 U.S.C. § 455(d)(4). The financial interest

disqualification is not waivable by the parties.

During the August 12 telephone conference, the court noted

that both substantive and procedural orders had been entered

after October 1, 2007, and, although some orders directly

affected other parties, nevertheless, those decisions plainly

also affected LaSalle Bank, shaping the litigation landscape with

respect to LaSalle and plaintiff - e.g., facilitating the filing

of pending dispositive motions, and permitting what otherwise

would be non-conforming motions (extending time limits and

enlarging page limitations).

2 To restore this case to its status as of October 1, 2007,

the court hereby vacates all orders entered on or after that

date. That, in turn, requires the court to terminate all pending

motions, since they have been shaped by, and filed in reliance

upon, the court's prior substantive and procedural orders.

Conclusion

The Clerk of Court shall: (1) vacate all orders issued by

the undersigned in this case on or after October 1, 2007; and (2)

terminate all currently pending motions, without prejudice to

refiling once this matter has been assigned to a new judge. At

that time, if any of the parties wishes to "refile" a terminated

motion, or motion previously resolved by a now vacated order1,

that party may notify the court of its desire to do so; it shall

not be necessary for the party to physically refile the same

motion again. The same shall apply to any objections to those

motions.

For the reasons given, the undersigned is recused, nunc pro

tunc, as of October 1, 2007, and the case shall be reassigned to

a different judge.

1 Counsel suggested that they were inclined to stipulate to entry of orders identical to those previously entered, but that is a matter exclusively for the newly assigned judge's attention.

3 SO ORDERED.

StTeven J./McAuliffe thief Judge

cc: Edmund J. Boutin, Esq. William P. Breen, Esq. Steven A. Clark, Esq. Dorothy A. Davis, Esq. Walter L. Maroney, Esq