United States District Court, N.D. Georgia, Atlanta Division
Donald C. Bankhead, et al., Plaintiffs,
Castle Parking Solutions, et al., Defendants.
OPINION AND ORDER
MICHAEL L. BROWN UNITED STATES DISTRICT JUDGE
ask this Court to recuse itself from consideration of this
matter and to stay all proceedings pending a ruling on
recusal. (Dkt. 42). For the reasons set forth below, the
Court denies Plaintiffs' motion.
Bankhead and Thompson sued Defendants claiming they
systematically disabled and “booted” cars in the
City of Atlanta despite that signs they posted at booting
locations did not comply with relevant city ordinances.
See Dkt. 19. More specifically, Plaintiffs allege
that Defendant Beacon Management Services, LLC (a property
management company) directed Defendant Castle Parking
Solutions LLC to boot or immobilize vehicles on properties
Defendant Beacon managed. Id. at ¶¶ 12-14.
Since Defendant Beacon removed this case, Plaintiffs have
filed a series of motions aimed at defeating diversity
jurisdiction to send this case back to the state court from
which it came. See, e.g., Dkts. 20, 33. Plaintiffs,
for example, alleged in the initial complaint that the
defendants “have collected millions of dollars in
fees” from the booting of vehicles in violation of
Atlanta ordinances. Dkt. 1-1 at 3. Defendant Beacon cited
this allegation in support of removal. Dkt. 1 at ¶ 30.
very next day, Plaintiffs moved to amend their complaint to
drop this allegation, claiming that they did not intend to
include this allegation, did so
“inadvertent[ly]”, and have “no
evidence” about the total fees Defendants collected.
Dkt. 2 at ¶ 4. Plaintiffs also moved for jurisdictional
discovery, arguing that “the amount in controversy may
only be in the hundreds of thousands.” Dkt. 3 at ¶
8. The judge assigned to the case at that time denied the
motion for discovery. He allowed Plaintiffs to amend the
complaint but ruled that federal jurisdiction had been
determined at the time of removal, so Plaintiffs could not
defeat diversity jurisdiction through the proposed amendment.
day they received that order, Plaintiffs moved to dismiss
Defendant Beacon (the diverse defendant), claiming that they
recently learned that Defendant Beacon did not, in fact,
direct Defendant Castle to boot vehicles on properties Beacon
managed. (Dkt. 20). In their motion, Plaintiffs
suggested that the homeowners association at the property
where their cars had been booted might be the correct party
to sue along with Defendant Castle. Id. Defendant
Beacon opposed that motion, arguing that Plaintiffs were
merely forum shopping - that is, trying to defeat
jurisdiction so they could return to state court. (Dkt. 22).
As part of this, Defendant Beacon showed that Plaintiffs were
aware by at least October 2017 that the homeowners
association - not Defendant Beacon - directed Defendant
Castle in booting cars. Id. at 7, 18-19.
Alternatively, Defendant Beacon argued that - if the Court
were to grant Plaintiffs' motion to dismiss - the Court
should award Defendant Beacon its attorneys' fees and
costs in responding to Plaintiffs' motions aimed at
defeating jurisdiction. Id. at 9-10.
about that time, the case was transferred to the undersigned.
The Court held a hearing on Plaintiffs' motion to dismiss
and found that Plaintiffs had not shown their motion to
dismiss was based on newly discovered information but rather
sought to subvert the prior judge's ruling that Defendant
Beacon had properly removed the case. Dkt. 34 at 42:9-45:6.
The Court asked Defendant Beacon whether it would prefer to
stay in federal court or to have the matter dismissed and
obtain appropriate attorneys' fees. Id. at
46:1-10. Defense counsel asked for time to consult with their
client. Id. at 46:1-3. But, immediately after the
hearing, Plaintiffs withdrew their motion to avoid paying
attorneys' fees. (Dkt. 30).
remained quiet for about three weeks. On April 10, 2018,
Plaintiffs filed their Motion to Add Party and Remove
Defendant Beacon based largely on the same facts Plaintiffs
cited in their earlier motion to dismiss - that is, a claim
that they had recently learned that the homeowners
association rather than Defendant Beacon was responsible for
directing Defendant Castle. See Dkt. 33. As
explained above, Plaintiffs had been aware of this fact since
at least October 2017. But now Plaintiffs alleged that they
had - “[b]y chance” - recently spoken with an
attorney for the homeowners association who had admitted that
the association directed Defendant Castle. Id. at
¶ 8. So Plaintiffs moved to dismiss Defendant Beacon
from the case, to add the homeowners association, and to
amend their complaint to allege claims against the
association. Id. Plaintiffs neither included an
affidavit to explain the newly discovered evidence nor
attached a copy of the proposed amended complaint as required
by the Local Rules. Id. They included an amended
complaint and an affidavit (from Plaintiffs' counsel
rather than the attorney for the homeowners association) with
a reply brief. (Dkt. 36-3). That amended complaint shows that
Plaintiffs are looking for a wholesale redrafting of their
complaint, changing the scope of the putative class from a
citywide class against Defendants Beacon and Castle for
booting at properties all over Atlanta to a class against
Defendant Castle and one homeowners association for booting
at only one property. See id. Above all, Plaintiffs
- having withdrawn their prior motion to dismiss - sought
another avenue for defeating diversity jurisdiction by
dismissing Defendant Beacon from this case.
that motion was pending, Plaintiffs' counsel brought an
unrelated lawsuit in Union City, Georgia. Neither the
Plaintiffs nor Defendants in this case are parties to the
Union City matter. Plaintiffs in that case allege that the
various companies in Union City booted vehicles at locations
in Union City in violation of that city's ordinances. One
of the defendants in the Union City case removed the case
from state court to this Court. That case is now known as
Polson v. Kenny McElwaney, et al., No. 1:18-cv-2674
removing defendant checked a box on this Court's Civil
Cover Sheet claiming Polson is related to the matter
before this Court because they involve the “same issue
of fact or arises out of the same event or
transaction.” (Dkt. 42-1). Polson thus was
first assigned to this Court.
counsel called this Court's chambers to challenge the
automatic assignment of Polson to it. Dkt. 48-1 at
¶ 6. While the Court believes that counsel asserted that
the cases were mistakenly marked as related, Plaintiffs'
counsel does not recall making that assessment. Id.
at ¶ 11. He admits, however, that he called to ask how
to “dispute” the removing defendant's
“designation that the Polson case was
sufficiently factually related” to this case so as to
cause Polson's assignment to this court.
Id. at ¶ 9. He wanted to know how to dispute
the automatic assignment of Polson based on the
defendant's designation that it “involved the same
issue of fact or arises out of the same event or
transaction” as this case. Id. He recalled
stating that the two cases “involve different
defendants, parking lots, and municipal ordinances.”
Id. at ¶ 10. He also stated that the Court
should refuse to accept the Polson case because the
removing defendant was represented by Alston & Bird, the
firm at which the undersigned worked before joining the
District Court and the firm at which his wife continues to
work. Id. at ¶ 13.
receiving that call, this Court was unaware that
Polson had been assigned to it. The Court
immediately confirmed that Alston & Bird represented one
of the defendants and, therefore, recused itself from the
matter. Polson, Dkt. 18. The very next day,
Plaintiffs moved to disqualify the Court from this case,
arguing that the cases are so closely related - involving
“nearly identical claims arising out of the same course
of conduct” - that recusal is required. (Dkt. 42). That
was, to say the least, a completely different position than
Plaintiffs had taken just days before when challenging the
assignment of Polson to this Court on relatedness
Court held a telephonic hearing on the motion for recusal.
(Dkt. 46). The next day, the Court held another telephonic
hearing the next day to discuss the Court's concern about
Plaintiff's counsel's repeated telephone calls to the
Clerk's office about the assignment of Polson.
(Dkt. 47). During the second hearing, the Court denied
Plaintiff's motion for recusal. Dkt. 54 at 3:17-22. On
June 18, 2018, Plaintiff filed a “Supplemental Brief in
Support of Motion for Recusal or, in the Alternative, Motion
for Reconsideration.” (Dkt. 48). Although the Court
denied Plaintiff's motion for recusal before the filing
of Plaintiffs' “supplemental brief, ” the
Court has considered the additional authority sited therein.
The Court files this Opinion to supplement its earlier
explanation for the denial of Plaintiffs' motion to