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11-CV-3576
IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT MARCUS ISAIAH WASHINGTON,

Plaintiff:Appellant,
V. WILLIAM MORRIS ENDEAVOR ENTERTAINMENT, LLC, formerly known as the WILLIAM MORRIS AGENCY, INC., JEFF MEADE and SARAH WINIARSKI,

Defendants-Appellees.
ON APPEAL FROM THE U.S. DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK No. 10-Civ-9647 (PKC)(JCF)

CROSS-MOTION TO DISMISS APPEAL FOR LACK OF JURISDICTION AND OPPOSITION TO APPELLANT'S EMERGENCY MOTION

Michael P. Zweig (MZ-5318) Christian D. Carbone (CC-6502) LOEB & LOEB LLP 345 Park Avenue New York, NY 10154 Telephone: 212.407.4000 Facsimile . 212.407.4990 Attorneys for Defendant-Appellees WILLIAM MORRIS ENDEAVOR ENTERTAINMENT, LLC, formerly known as the WILLIAM MORRIS AGENCY, INC., JEFF MEADE and SARAH WINIARSKI

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Table of Contents Page TABLE OF AUTHORITIES PRELIMINARY STATEMENT 1 2 2 3 4 4 4 6 10 10 12 17 19

STATEMENT OF RELEVANT FACTS I. II. PROCEEDINGS BEFORE THE DISTRICT COURT PROCEEDINGS BEFORE THIS COURT

ARGUMENT I. THIS COURT DOES NOT HAVE JURISDICTION TO HEAR MR. WASHINGTON'S APPEAL A. B. An Order Compelling Arbitration and Staying Litigation is Not Final and May Not Be Appealed Mr. Washington Has Neither Sought Nor Received Permission to Appeal the District Court's Order

II. MR. WASHINGTON'S EMERGENCY MOTION IS MOOT A. B. There is No "Good Cause" to Expedite Mr. Washington's Appeal Mr. Washington's Reckless Claim of Collusion Between Judge Castel and Judge Francis is Wholly Unsubstantiated

CONCLUSION DISCLOSURE STATEMENT

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Table of Authorities Page(s)

CASES

In re 105 East Second St. Assocs., No. M-47 (LLS), 1997 WL 311919 (S.D.N.Y. June 10, 1997) Alliance Bernstein Inv. Res. and Mgmt., Inc. v. Schaffran, 445 F.3d 121 (2d Cir. 2006) I3isson v. Martin Luther King Jr. Health Clinic, No. 07-5416, 2008 WL 4951045 (2d Cir. Nov. 20, 2008) Chicago Midtown Milk Distribs. v. Dean Foods Co., Civ. Nos. 18577 and 18578, 1970 WL 2761 (7th Cir. July 9, 1970) Clark v. Kraftco Corp., 447 F.2d 933 (2d Cir. 1971) Contec Corp. v. Remote Solution, Co., 398 F.3d 205 (2d Cir. 2005) In re Drexel Burnham Lambert, Inc., 861 F.2d 1307 (2d Cir. 1988) Ermenegildo Zegna Corp. v. Zegna, 133 F.3d 177 (2d Cir. 1998) Filanto, S.P.A. v. Chilewich Intl Corp., 984 F.2d 58 (2d Cir. 1993) In re Gen. Motors Corp., No. M 47(LAK), 2009 WL 2033079 (S.D.N.Y. July 9, 2009), affd, 428 B.R. 43 (S.D.N.Y. 2010) Green Tree Fin. Corp. v. Rudolph, 531 U.S. 79 (2000) Hoatson v. New York Archdiocese, 280 F. App'x 88 (2d Cir. 2008)

9 8 7 11 9 8 12-13, 16 5 5, 6

11 5,6 15

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Table of Authorities Page(s) John Hancock Life Ins. Co. v. Wilson, 254 F.3d 48 (2d Cir. 2001) Jones v. City of Buffalo, 867 F. Supp. 1155 (W.D.N.Y. 1994) Jonesfilm v. Lions Gate Films, Inc., 65 F. App'x 361 (2d Cir. Jun. 2, 2003) Kampfer v. Gokey, 175 F.3d 1008 (2d Cir. 1999) Lamborn v. Dittmer, 726 F. Supp. 510 (S.D.N.Y. 1989) Lewis v. Tuscan Dairy Farms, Inc., 25 F.3d 1138 (2d Cir. 1994) Liteky v. United States, 510 U.S. 540 (1994) LoCascio v. U.S., 473 F 3d 493 (2d Cir. 2007) Martens v. Smith Barney, Inc., 238 F. Supp. 2d 596 (S.D.N.Y. 2002) North Fork Bank v. Abelson, 207 B.R. 382 (E.D.N.Y. 1997) Ocasio v. Fashion Inst. of Tech., 86 F. Supp. 2d 371 (S.D.N.Y. 2000), affd, 9 F. App'x 66 (2d Cir. 2001) Repp v. Webber, No. 99-7166, 1999 WL 1024115 (2d Cir. Oct. 27, 1999) Romer v. Green Point Say. Bank, 27 F.3d 12 (2d Cir. June 14, 1994) 14 13 11 14 12 14 14 14 9 8 15

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Table of Authorities Page(s) In re SageCrest IL LLC, 444 B.R. 20 (D. Conn. 2011) Salim Oleochemicals v. M/V Shropshire, 278 F.3d 90 (2d Cir. 2002), aff d, 40 F. App'x 626 (2d Cir. 2002) Shabazz v. Scully, Civ No. 91-6319, 1993 WL 8182 (S.D.N.Y. Jan. 4, 1993) Spiegel v. Schulmann, 604 F.3d 72 (2d Cir. 2010) U.S. v. Intl Bus. Mach. Corp., 475 F. Supp. 1372 (S.D.N.Y. 1979), affd, 618 F.2d 923 (2d Cir. 1980) United States v. Gelb, 826 F.2d 1175 (2d Cir. 1987) 13 5 12 13 14 11 15 5, 6, 7

Weisshaus v. New York, Civ. No. 08 Civ. 4053, 2009 WL 4823932 (S.D.N.Y. Dec. 15, 2009) In re X0 Commc'ns, Inc. v. Start Investments, Inc., Civ. No. 03-1898, 2004 WL 360437 (S.D.N.Y. Feb. 26, 2004)
STATUTES & RULES

9 U.S.C. 16 (b)(1), (3) 9 U.S.C. 16(b)(3) 28 U.S.C. 455(a) 28 U.S.C. 1292(b) Fed. R. App. P. 5(a) Fed. R. App. P.2 Second Circuit Local Rule 31.2(a)(1)(B)

1, 5 7 13 4, 6, 7 7 11 10

iv

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Defendants-Appellees William Morris Endeavor Entertainment, LLC, Jeff Meade and Sarah Winiarski (collectively, "Appellees" or "WNIE") respectfully submit this memorandum of law in support of their cross-motion to dismiss this appeal, based upon 9 U.S.C. 16 (b)(1), (3) which provides that the District Court's issuance of a stay pending arbitration is non-appealable and, further, in opposition to Appellant's Emergency Motion to Expedite the Appeal and Request for the Disqualification of Hon. P. Kevin Castel and Hon. James C. Francis (the "Emergency Motion").

PRELIMINARY STATEMENT Appellant Mr. Washington's complaint alleges that he was subjected to unlawful discrimination during his brief employment at WME. WME will vigorously address these unfounded allegations at arbitration, in accordance with the arbitration agreement that Mr. Washington signed. WME's motion for a stay pending arbitration was granted by the District Court because the claims M Washington purports to assert are unequivocally encompassed by the parties' arbitration agreement, which provides that "any claim, dispute, and/or controversy" arising from or relating to Mr. Washington's employment "shall be submitted to and determined exclusively by binding arbitration under the Federal Arbitration Act. .

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As set forth herein, Mr. Washington's attempt to appeal from an interlocutory District Court order is procedurally improper and substantively unwarranted. This Court does not have jurisdiction over Mr. Washington's claims and his appeal must be dismissed and his Emergency Motion should be denied as moot.

STATEMENT OF RELEVANT FACTS

I. PROCEEDINGS BEFORE THE DISTRICT COURT On or about December 22, 2010, Mr. Washington filed a complaint in the Southern District of New York asserting discrimination and retaliation claims under Federal, New York State and New York City law arising out of his employment with WME (the "Complaint"). In addition to WME, Mr. Washington's Complaint also names WME employees Jeff Meade and Sarah Winiarski as defendants. On or about February 25, 2011, WME moved to dismiss the Complaint on the ground that the all of the claims asserted therein were encompassed by an arbitration agreement signed and executed by Mr. Washington (the 'Mutual

'The October 7, 2011 Declaration of Christian D. Carbone ("Carbone Decl.") has been submitted in support of WE's motion; a true and correct copy of the complaint is attached as Exhibit A thereto.

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Arbitration Agreement"). 2 As set forth in the Mutual Arbitration Agreement, any claim Mr. Washington may have against WME "arising from, related to, or having any relationship or connection whatsoever to Employee's seeking employment with, maintaining employment by, or other association with [W1VIE], shall be submitted to and determined exclusively by binding arbitration under the Federal Arbitration Act...." [emphasis added]. (See Carbone Decl. Exhibit B, Mutual Arbitration Agreement at 1) The Agreement also gives the arbitrator exclusive authority to determine disputes over enforceability. (Id. at 2). On July 29, 2011, the District Court issued its Memorandum and Order (the "Stay Order") finding that the Mutual Arbitration Agreement was not signed under unconscionable circumstances, is not barred by statute, and is thus enforceable. The District Court held that any issues of arbitrability must be resolved by the arbitrator and stayed the action pending the arbitration of Mr. Washington's claims .3 II. PROCEEDINGS BEFORE THIS COURT Without seeking certification from the District Court, on August 10, 2011, Mr. Washington filed a Notice of Appeal from the Stay Order. On September 13,

A true and correct copy of the Mutual Arbitration Agreement executed by Mr. Washington is attached as Exhibit B to the Carbone Declaration. 3 A true and correct copy of Judge P. Kevin Castel's Memorandum and Order dated July 20, 2011 is attached as Exhibit C to the Carbone Declaration.

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2011, this Court issued an order dismissing the appeal unless Mr. Washington submits form D-P by October 4, 2011. As of the date hereof, there is no indication on the docket that such papers have been filed. On September 28, 2011, WME received, by hand delivery, papers styled as Mr. Washington's Emergency Motion for an Expedited Appeal and Request for the Disqualification of Hon. P. Kevin Castel and Hon. James C. Francis. WME now cross-moves to dismiss Mr. Washington's appeal for lack of appellate jurisdiction and opposes his Emergency Motion in its entirety.

ARGUMENT I. THIS COURT DOES NOT HAVE JURISDICTION TO HEAR MR. WASHINGTON'S APPEAL Mr. Washington's appeal to this Court is at best premature because the District Court Order is not a final judgment. The Federal Arbitration Act does not create a right to appeal interlocutory orders compelling arbitration and Mr. Washington has not sought permission from the District Court to do so. A. An Order Compelling Arbitration and Staying Litigation is Not Final and May Not Be Appealed The Federal Arbitration Act states in pertinent part: (b) Except as otherwise provided in section 1292(b) of title 28, an appeal may not be taken from an interlocutory order (1) granting a

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stay of any action under section 3 of this title;[or]...(3) compelling arbitration under section 206 of this title. Id. at (b)(1), (3). Section 16 of the FAA "furthers [the FAA's] aim of eliminating barriers to arbitration by promot[ing] appeals from orders barring arbitration and limit[ing] appeals from orders directing arbitration." Ermenegildo Zegna Corp. v. Zegna, 133 F.3d 177, 180 (2d Cir. 1998). This Court has consistently affirmed that an order staying an action and compelling arbitration is not final and therefore is unappealable. See, e.g., Jonesfilm v. Lions Gate Films, Inc., 65 F. App'x 361, 363 (2d Cir. Jun. 2, 2003) (an order compelling arbitration but not dismissing the action cannot be immediately appealed) (citing Green Tree Fin. Corp. v. Rudolph, 531 U.S. 79, 87 n. 2 (2000) ("[h]ad the District Court entered a stay instead of a dismissal in this case, that order would not be appealable")); Salim Oleochemicals v. M/V Shropshire, 278 F.3d 90, 93 (2d Cir. 2002) ("a dismissal renders an order appealable under 16(a)(3), while the granting of a stay is an unappealable interlocutory order under 16(b)), air d, 40 F. App'x 626 (2d Cir. 2002); Filanto, S.P.A. v. Chilewich Int'l Corp., 984 F.2d 58 (2d Cir. 1993) (order directing arbitration was part of a continuing litigation and thus not appealable); see also, In re X0 Commc'ns, Inc. v. Start Investments, Inc., Civ. No. 03-1898, 2004 WL 360437, *4-5 (S.D.N.Y. Feb. 26, 2004) (applying Green Tree, the Court found that

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a Bankruptcy Court order staying an action and directing arbitration was interlocutory and unappealable). Similarly, here, the District Court expressly declined to exercise its discretion to dismiss the Complaint, stayed the action, and placed the case on the suspense docket.4 The District Court clearly communicated its intent to keep this case open, making its decision non-final and non-appealable. See Filanto, 984 F.2d at 61 (order compelling arbitration under 9 U.S.C. 16(b)(3) not appealable because the District Court declined to dismiss the complaint). The facts here fall squarely within the holdings of Green Tree, JonesFilm, XO Commc'ns, and the long line of Second Circuit jurisprudence addressing this issue.

B. Mr. Washington Has Neither Sought Nor Received Permission to Appeal the District Court's Order
The District Court did not certify the Stay Order for appeal, nor did Mr. Washington ask it to do so. 28 U.S.C. 1292(b) permits a district court judge to certify an otherwise unappealable order for appeal only when that order involves

4 See Carbone Decl. Exhibit C, Mem. and Order at 18. Although Mr. Washington claims that a clerk told him this case is closed, this Court can take judicial notice that this case is on Judge Castel's suspense docket and remains open for jurisdictional purposes. (A true and correct copy of the District Court docket in this case is attached at Exhibit D to the Carbone Declaration). Regardless, the opening or closing of cases for administrative or statistical convenience is not equivalent to a final judgment of dismissal. See Filanto, 984 F.2d at 61 (no "jurisdictional significance" from marking a case closed for administrative or statistical purposes) (citing cases).

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"a controlling question of law as to which there is substantial ground for difference of opinion" and "an immediate appeal from the order may materially advance the ultimate termination of the litigation." Id. Absent certification, an appeal may not be maintained. Fed. R. App. P. 5(a).5 Even if Mr. Washington had sought permission, an appeal of the Stay Order is not warranted. The Stay Order does not involve a "controlling issue of law as to which there is substantial ground for difference of opinion," nor would "an immediate appeal from the order ... materially advance the ultimate termination of the litigation." 28 U.S.C. 1292(b); see also XO Commc'ns, 2004 WL 360437 at *5 (declining to grant leave to appeal a non-final order). The "controlling question of law" prong is not satisfied because a reversal of the Stay Order would not "materially affect the outcome of the litigation." XO Commc'ns, 2004 WL 360437 at *5 (citing North Fork Bank v. Abelson, 207 B.R. 382, 389-90 (E.D.N.Y. 1997)). Overturning the District Court's Order would only send the question of enforceability back to the District Court, creating the potential for a piecemeal

5 Although WME appreciates Mr. Washington's pro se status, such status is no reason to permit Mr. Washington to circumvent the District Court's jurisdiction. See Bisson v. Martin Luther King Jr. Health Clinic, No. 07-5416, 2008 WL 4951045, at *1 (2d Cir. Nov. 20, 2008) (noting that although papers from a pro se complainant should be liberally construed, this "does not exempt pro se parties from compliance with the relevant rules of procedural and substantive law") (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.1983)).

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review that further delays the parties' opportunity to reach the merits of the Complaint. The "substantial ground for difference of opinion" prong cannot be satisfied either. The District Court's Order addresses a basic question of contract interpretation, which can be resolved by looking at the relevant provisions of the Mutual Arbitration Agreement and the well-settled case law on point. The decision to direct the parties to proceed to arbitration, as specified in the Mutual Arbitration Agreement, is hardly a difficult issue of first impression. On its face, the Mutual Arbitration Agreement "clearly and unmistakenly" provides the arbitrator with the "exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of the Agreement."6 Where "parties explicitly incorporate rules that empower an arbitrator to decide issues of arbitrability, the incorporation serves as clear and unmistakable evidence of the parties' intent to delegate such issues to an arbitrator" and that rule will be enforced. See Contec Corp. v. Remote Solution, Co., 398 F.3d 205, 208 (2d Cir. 2005); Alliance Bernstein Inv. Res. and Mgmt., Inc. v. Schaffran, 445 F.3d 121, 126 (2d Cir. 2006) (finding the issue of arbitrability was subject to arbitration); John Hancock Life Ins. Co. v. Wilson, 254 F.3d 48 (2d Cir. 2001) (same).

6 See Carbone Decl. Exhibit B, Mutual Arbitration Agreement at 2; see also Carbone Decl. Exhibit C, Mem. and Order at 10-11.

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Furthermore, that "a pre-dispute agreement requiring compulsory arbitration. . . is enforceable with regard to Title VII claims" is well-settled law within the Second Circuit and does not establish the difference of opinion required for appellate certification. See Martens v. Smith Barney, Inc., 238 F. Supp. 2d 596, 601 (S.D.N.Y. 2002) (denying request to certify for appealability). That the arbitrability of Mr. Washington's claims, as well as the merits of those claims, belong in front of the arbitrator is clear. Finally, an immediate appeal would not "materially advance the ultimate termination of the litigation." North Fork Bank, 207 B.R. at 391. To the contrary, an immediate appeal will not terminate any of Mr. Washington's claims and will only further delay a resolution of the merits. See, e.g., In re 105 East Second St. Assocs., No. M-47 (LLS), 1997 WL 311919, at *3 (S.D.N.Y. June 10, 1997) (appeal not likely to advance termination of litigation when it "would not result in the dismissal of any claims or defenses... [n]or would it resolve any other substantially dispositive issue in [the] proceeding") (citing Pereira v. Aetna Casualty & Sur. Co., 921 F. Supp. 1121, 1126 (S.D.N.Y 1996) (certification of appeal under 1292(b) would not advance the termination of the litigation because certain claims "will continue regardless of the disposition of the issue")); Clark v. Kraftco Corp., 447 F.2d 933, 936 (2d Cir. 1971) (granting motion to dismiss

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appeal for lack of finality, noting "[t]he federal policy against piecemeal or premature appellate review is a basic one...").

II. MR. WASHINGTON'S EMERGENCY MOTION IS MOOT

As established herein, Mr. Washington's appeal is procedurally improper and does not warrant appellate review. Accordingly, the issues raised in the Emergency Motion are moot. However, in the event the Court reaches the merits, WME opposes the Emergency Motion on the grounds that 1) Mr. Washington has not provided sufficient justification for expediting his appeal and 2) recusal or reassignment of District Court Judge P. Kevin Castel and Magistrate Judge James C. Francis is unwarranted.

A. There is No "Good Cause" to Expedite Mr. Washington's Appeal

Mr. Washington's Emergency Motion states that he is requesting an expedited appeal. However, Mr. Washington does not ask this Court to expedite its ruling, nor does he seek to expedite his own filing deadlines. Mr. Washington is merely looking to force WME to respond to his appellate brief within 10 days instead of choosing a date within the 91 day window that would ordinarily be provided. (See Carbone Decl. Exhibit E, Emergency Motion at 20); Second Circuit Local Rule 31.2(a)(1)(B).

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A motion for expedited appeal may only be granted for "good cause," which is not present here. Fed. R.App. P. 2. "Good cause" is generally found where there are a set of exigent circumstances that will be affected by the outcome of the appeal. See, e.g., In re Gen. Motors Corp., No. M 47(LAK), 2009 WL 2033079 (S.D.N.Y. July 9, 2009) (expediting an appeal that may have mooted an impending sale), aff d, 428 B.R. 43 (S.D.N.Y. 2010); Romer v. Green Point Say. Bank, 27 F.3d 12 (2d Cir. June 14, 1994) (expediting appeal of a TRO that barred the imminent conversion of a bank into a public stock company, noting that the outcome of the appeal would determine the entire litigation); Chicago Midtown Milk Distribs. v. Dean Foods Co., Civ. Nos. 18577 and 18578, 1970 WL 2761 (7th Cir. July 9, 1970) (permitting an expedited appeal from a TRO that forced defendants to sell to plaintiffs in spite of a labor dispute). However, where, like here, there are no exigent circumstances that will be affected by the outcome of the appeal, and there is no likelihood of success, this Court has declined to expedite the appeal. See, e.g., United States v. Gelb, 826 F.2d 1175, 1177 (2d Cir. 1987) (denying motion to expedite an appeal where there were limited issues to address and perceived little chance of success on the merits). Mr. Washington's claimed personal hardship will not be affected by the resolution of this appeal. A resolution of this appeal will send the parties either to arbitration or back to the District Court to determine the enforceability of the

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Mutual Arbitration Agreement. Neither outcome will immediately effect Mr. Washington's economic circumstances or his ability to obtain employment. Furthermore, expediting the appeal will not get the parties closer to resolving the claims on the merits. Even liberally construed, Mr. Washington's arguments do not establish "good cause" to expedite the proceedings. B. Mr. Washington's Reckless Claim of Collusion Between Judge Castel and Judge Francis is Wholly Unsubstantiated 28 U.S.C. 455(a) provides that "[a]ny justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 7 There is a "substantial burden" on the moving party to demonstrate that a judge is not impartial. Shabazz v. Scully, Civ No. 916319, 1993 WL 8182, at *1 (S.D.N.Y. Jan. 4, 1993) (denying recusal where the plaintiff failed to meet the burden necessary to carry the motion); see also, Lamborn v. Dittmer, 726 F. Supp. 510, 514 -15 (S.D.N.Y. 1989) (conclusory speculation not enough to warrant recusal). The moving party must demonstrate that "a reasonable person knowing and understanding all the relevant facts would

7 A motion for disqualification under 28 U.S.C. 455 is ordinarily made to the judge whose impartiality is being challenged, as the discretion to consider disqualification rests with that judge in the first instance. In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1312 (2d Cir. 1988). WME understands that the Court may nonetheless consider this argument in light of Mr. Washington's pro se status and will address its merits.

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recuse the judge[s]." In re Drexel Burnham, 861 F.2d at 1313. Mr. Washington has made no such showing. Similarly, "Neassignment of a case on remand should occur only when the facts might reasonably cause an objective observer to question the judge's impartiality.' Spiegel v. Schulmann, 604 F.3d 72, 83 (2d Cir. 2010) (citing United States v. Cole, 496 F.3d 188, 195 (2d Cir. 2007) (plaintiffs' disagreements with the district court judge's analysis of the law did not imply a bias and was not a basis for reassignment); In re SageCrest II, LLC, 444 B.R. 20 (D. Conn. 2011) (where judge's order was erroneous but issued in good faith, there was no bias and reassignment was not necessary to preserve the appearance of justice). As described herein, neither Judge Castel nor Judge Francis has demonstrated any bias against Mr. Washington neither party has yet to even appear before either Judge, communicating only through motion papers. In reality, Mr. Washington's main complaint about Judge Castel is that Judge Castel did not rule in his favor. He argues that it was Judge Castel's "extreme bias and partiality" in favor of WME, rather than the application of the correct legal standard, that led Judge Castel to find the Mutual Arbitration Agreement enforceable. However, "[aldverse rulings in other litigation or the same litigation involving the party seeking recusal generally do not constitute a basis for recusal." Repp v. Webber, No. 99-7166, 1999 WL 1024115, at *2 (2d Cir. Oct. 27, 1999) (citing United

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States v. Arena, 180 F.3d 380, 398 (2d Cir. 1999)); LoCascio v. U.S., 473 F.3d 493, 494-96 (2d Cir. 2007) (rejecting the argument that the court's repeated denials of defendant's motions mandated recusal); Ocasio v. Fashion Inst. of Tech., 86 F. Supp. 2d 371, 375 (S.D.N.Y. 2000) (unfavorable decisions cannot support a motion for disqualification), aff'd, 9 F. App'x 66 (2d Cir. 2001); U.S. v. Int'l Bus. Mach. Corp., 475 F. Supp. 1372, 1380 (S.D.N.Y. 1979), affd, 618 F.2d 923 (2d Cir. 1980) (S.D.N.Y. 1979) ("The fact that IBM lost a majority of its objections and motions indicates not bias of the judge but rather lack of merit to the objections and motions"). That Mr. Washington is displeased with Judge Castel's decision is, of course, no reason to disqualify him or Judge Francis from hearing this matter. Mr. Washington points to a prior unrelated action in which William Morris appeared before Judge Francis over 10 years ago as evidence of his predisposition to rule in WME's favor. However, "the fact that a judge is familiar with a litigant. . . is not grounds for recusal if it stems from the performance of his or her judicial duties." Kampfer v. Gokey, 175 F.3d 1008 (2d Cir. 1999).8

8 See also, Lewis v. Tuscan Dairy Farms, Inc., 25 F.3d 1138, 1141 (2d Cir. 1994) (judge's ruling in a prior unrelated proceeding was insufficient to show personal bias). Absent a "deep-seated favoritism or antagonism," which has not been shown here, prior rulings are almost invariably never grounds for recusal. See Liteky v. United States, 510 U.S. 540, 555 (1994).

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Mr. Washington also points to Judge Castel and Judge Francis' participation in a conference that addressed employment litigation defense as further evidence of their alleged bias. A speaking engagement, like a membership in an organization or other association, does not imply a bias and cannot be the basis for recusal on its own. See, e.g., Hoatson v. New York Archdiocese, 280 F. App'x 88, 90 (2d Cir. 2008) (judge's membership in Catholic lawyers organization and receipt of an award from that organization did not warrant recusal in terminated employee's action against Catholic Archdiocese and Archbishop); Weisshaus v. New York, Civ. No. 08 Civ. 4053, 2009 WL 4823932, at *4-5 (S.D.N.Y. Dec. 15, 2009) ("[h]olding a teaching post at a party's alma mater is not a ground for recusal"); Jones v. City of Buffalo, 867 F. Supp. 1155, 1162 (W.D.N.Y. 1994) (prior associations did not provide basis for recusal). In Hoatson, the Judge noted that "social and educational involvement," similar to what has been alleged here, "would not lead a reasonable person to question Judge Crotty's impartiality." 280 F. App'x at 90. Likewise, that Judge Francis or Judge Castel participated in a conference that addressed defending an employment litigation would not alone lead a reasonable person to assume that either Judge would harbor a bias for employers in such suits. Mr. Washington devotes a portion of his Emergency Motion to his completely reckless and wholly unsubstantiated claim that Judge Castel "selected" Judge Francis as the Magistrate Judge for this case because Judge

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Francis shares Judge Castel's alleged bias in favor of WME. This suggestion of collusion between Judge Castel and Judge Francis is not only completely speculative and too remote to create the appearance of impropriety, it insults the integrity of both Judges. In short, there is simply no ground to disqualify Judge Castel or Judge Francis and no need to reassign this action to another judge on remand. See In re Drexel Burham Lambert, Inc., 861 F.2d at 1309 (denying recusal motion and notinglt]hat which is seen [as smoke] is sometimes merely a smoke-screen).

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CONCLUSION For the reasons set forth above, Appellees WME, Jeff Meade and Sarah Winiarski respectfully submit that Appellant's appeal should be dismissed for lack of jurisdiction and the emergency motion should be denied as moot. Should this Court permit Mr. Washington's appeal, WME respectfully requests 45 days to respond to Mr. Washington's Brief. Dated: October 7, 2011 Respect By: Christian D. al-Mile SB CC 502) [email protected] Michael P. Zweig (SBN MZ-5318) [email protected] LOEB & LOEB LLP 345 Park Avenue New York, NY 10154 Telephone: 212.407.4000 Facsimile: 212.407.4990 Attorneys for Defendant-Appellees WILLIAM MORRIS ENDEAVOR ENTERTAINMENT, LLC, formerly known as the WILLIAM MORRIS AGENCY, INC., JEFF MEADE and SARAH WINIARSKI

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DISCLOSURE STATEMENT Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, counsel for William Morris Endeavor Entertainment, certifies that William Morris Endeavor Entertainment, is a privately held limited liability corporation and is not a publicly held corporation that issues stock. Dated: October 7, 2011 Loeb & L CHRIST By: Christian D. Car one C -650 [email protected] Michael P. Zweig (MZ-5318) [email protected] Attorneys for Defendant-Appellees WILLIAM MORRIS ENDEAVOR ENTERTAINMENT, LLC, formerly known as the WILLIAM MORRIS AGENCY, INC., JEFF MEADE and SARAH WINIARSKI

ARBO

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Case: 11-3576

Document: 25

Page: 24

10/07/2011

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AFFIDAVIT OF SERVICE

STATE OF NEW YORK ) ) COUNTY OF NEW YORK)

SS.

TIMOTHY B. CUMMINS, being duly sworn, deposes and says: 1. 2. I am not a party to this action and am over 18 years of age. On October 7, 2011, I served a true copy of the foregoing

Cross-Motion to Dismiss Appeal for Lack of Jurisdiction and Opposition to Appellant's Emergency Motion by Federal Express to the below listed party: Marcus I. Washington 54 Boerum Street Apartment 6M Brooklyn, New York 11206 Appellant Pro Se

Timothy B. Cummins Sworn to before me this 7th Day of October, 2011 7 (--4n&},,, 47,6t Notary Public (./V -.----Notary Public, State of New York No. 01PE4973633 Qualified in Nassau County Certificate Filed in New York County
ANTOINETTE PEPPER

347/ A

Commission Expires January 7. 2015

NY980203.1 058426-10022