United States District Court, E.D. Kentucky, Northern Division
OPINION AND ORDER
William O. Bertelsman United States District Judge.
matter is before the Court on the motion by defendant
Northern Kentucky University (“NKU”) to recuse
and stay proceedings (Docs. 202, 203), defendant
Kachurek's motion for recusal and to stay (Doc. 206),
plaintiff's combined response thereto (Doc. 235), and
NKU's reply (Doc. 239).
Court has carefully reviewed this matter and finds that the
parties' briefs adequately define the issues such that
oral argument is unnecessary. Thus, having given this matter
close study and consideration, the Court now issues the
following Memorandum Opinion and Order.
and Procedural Background
detailed recitation of the background of this case is
necessary to understand the posture of the motions before the
case was filed on February 12, 2016. Plaintiff alleges,
inter alia, that NKU violated Title IX by responding
with deliberate indifference after she was sexually assaulted
by a fellow student during the fall semester of 2013. (Doc.
1-1). In her complaint, plaintiff alleged claims against NKU
for violation of Title IX, Title IX retaliation, and breach
of fiduciary duty; and against former NKU Police Chief Les
Kachurek (“Kachurek”) for Title IX retaliation.
Further, NKU President Geoffrey Mearns
(“Mearns”), Title IX Coordinator Kathleen Roberts
(“Roberts”), and NKU Deputy Title IX Coordinator
Ann James (“James”) were sued under 42 U.S.C.
§ 1983 for violations of plaintiff's First and
Fourteenth Amendment rights. Id.
filing, as is the practice in this division, all discovery
and other pretrial matters were referred to the assigned
United States Magistrate Judge. (Doc. 2).
March 9, 2016, the Court held its routine monthly docket call
on this and several other cases, after which it issued a
scheduling order setting discovery and dispositive motion
deadlines. (Doc. 7). Discovery then proceeded under the
supervision of the Magistrate Judge.
29, 2016, defendants NKU, Mearns, Roberts, and James filed a
motion for partial summary judgment on plaintiff's claim
for Title IX retaliation. Defendants argued that the claim
was based solely on communications from NKU's outside
counsel, the admission of which is barred by Fed.R.Civ.P.
408. (Doc. 26).
to the Affidavit of Michael S. Jones, attached to
plaintiff's Memorandum in Opposition to Defendants'
Motions to Recuse and to Stay, Nicholas Gregg
(“Gregg”) - the undersigned's grandson -
applied for and interviewed with plaintiff's
counsel's law firm in August 2016. (Doc. 235-1 ¶
firm, aware of this relationship, conducted research to
determine if hiring Gregg would prevent the firm from
appearing before the undersigned. Id. ¶ 15. The
firm determined that so long as the requirements of 28 U.S.C.
455(b) were observed - viz, that Gregg did not act
as a lawyer in the proceeding in question and had no interest
that could be substantially affected by its outcome - his
employment with the firm would not prevent its attorneys from
appearing before the Court. Id.
undersigned was aware that Gregg was applying to the firm and
was already familiar with the dictates of 28 U.S.C. §
455 because, when Gregg entered his third year of law school
and began seeking employment, the undersigned looked into
these issues so he could advise his grandson accordingly. The
undersigned advised his grandson that there need be no need
for recusal if the provisions of 28 U.S.C. § 455(b) were
observed, that is, he could not be “an attorney in the
case” or have an interest that could be substantially
affected by the outcome of the proceeding.
event, Gregg - who had taken the July 2016 Ohio bar exam but
had not learned his results - began his employment with the
firm as a law clerk on or about August 22, 2016, and the firm
created an ethical wall so that Gregg would neither work on
this case nor be exposed to information about it.
Id. ¶¶ 16-17, 22-24, 29-30.
and briefing on various motions proceeded. On September 15,
2016, defendants NKU, Mearns, Roberts, and James filed a
motion for partial dismissal of plaintiff's amended
complaint. (Doc. 82).
Court held a formal oral argument on pending motions on
October 18, 2016. (Doc. 106). On October 24, 2016, the Court
issued a Memorandum Opinion and Order making rulings for and
against both sides. (Doc. 108). The Court denied NKU's
motion for a gag order, based on well-settled and binding
law. Id. at 1-4. The Court also granted sanctions
against NKU for certain obstructive actions by counsel in a
deposition, about which they had previously been cautioned by
the Magistrate Judge. Id. at 4-10.
the Court granted the NKU defendants' motion for partial
summary judgment, dismissing plaintiff's claim for Title
IX retaliation based upon correspondence from NKU's
outside counsel. Id. at 10-12.
a week later, the Court issued another Memorandum Opinion and
Order. (Doc. 115). In this Order, the Court ruled in the NKU
defendants' favor in all respects. First, the Court
dismissed plaintiff's claim for violation of substantive
due process based upon the insufficiency of her pleadings.
Id. at 1-3.
the Court held that even absent such deficiencies, the NKU
individual defendants were entitled to qualified immunity
from such claims. Id. at 3-5.
the Court ruled in defendant Mearns' favor on
plaintiff's First Amendment claim, also dismissing it
with prejudice. Id. at 6-7.
rulings on the constitutional claims removed any possibility
that plaintiff could recover punitive damages from the NKU
the Court dismissed plaintiff's claim for breach of
contract against the NKU defendants. Id. at
rulings came months after the undersigned's grandson
began employment with plaintiff's counsel's firm, and
the Court was satisfied that the provisions of § 455(b)
were being observed.
forward, in a hearing held on December 7, 2016, the Court
stressed the national importance of the issues raised in
Title IX cases such as this, both for alleged perpetrators
and their alleged victims. (Doc. 140, Transcript at 2-3). The
Court further noted:
I don't like to see NKU getting all this bad publicity.
Before any of your time, I was one-time president of the
Chamber of Commerce, and we had a battle royal[e] to get that
university established up here. Lexington fought it. U.K
didn't want the competition. Louisville fought it for the
same reason. We fought a battle that went on for years until
we finally got this university here. And it's done well.