Waters v. Armenian Genocide Museum & Memorial, Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

THE ARMENIAN ASSEMBLY OF
AMERICA, INC., et al.,

Plaintiffs/Counter-Defendants,
Civil Action Nos. 07-1259, 08-255,
v. 08-1254 (CKK)
GERARD L. CAFESJIAN, et al.,

Defendants/Counter-Plaintiffs.

MEMORANDUM OPINION
(May 9, 2011)

The above-captioned consolidated actions involve a series of claims and counterclaims

relating to the parties’ attempts to create a museum and memorial in Washington, D.C. devoted

to the Armenian Genocide. Following a twelve-day bench trial in November 2010, the Court

issued a Memorandum Opinion setting forth its findings of fact and conclusions of law on

January 26, 2011. See [193]1 Mem. Op. (Jan. 26, 2011). The Court found that none of the

parties’ substantive claims were meritorious and dismissed all of the claims save one, holding

that Defendants Gerard L. Cafesjian and John J. Waters were entitled to indemnification from the

Armenian Genocide Museum and Memorial, Inc. (“AGM&M”) for legal expenses incurred in

defending claims asserted against them in their capacities as former officers of AGM&M. The

Court also affirmed the validity of a Grant Agreement that provides Cafesjian and the Cafesjian

Family Foundation, Inc. (“CFF”) with a reversionary interest (now vested) in certain properties

owned by AGM&M. Since the Court’s ruling, the parties have filed a variety of motions with

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All docket numbers refer to Civil Action No. 08-255.
the Court relating to unresolved remedial issues and enforcement of the Court’s judgment. This

Memorandum Opinion addresses only one of those motions, the [208] Motion for New Trial

filed by The Armenian Assembly of America, Inc. (the “Assembly”) and subsequently joined by

AGM&M (collectively, “Plaintiffs”). Defendants Cafesjian Family Foundation, Inc. (“CFF”),

John J. Waters Jr. (“Waters”), and Gerard L. Cafesjian (“Cafesjian”) (collectively, “Defendants”)

have filed an opposition to Plaintiffs’ motion, and Plaintiffs have filed a reply. Accordingly, the

motion is ripe for adjudication.

The primary basis for Plaintiffs’ motion for a new trial is an alleged “mutual interest and

beneficial relationship” between the Court and Defendant Gerard L. Cafesjian based on an

allegedly shared cultural and financial interest in modern glass art, which Plaintiffs believe may

have biased the outcome of the bench trial. Plaintiffs also suggest that there is a political

connection between the Court and Cafesjian based on allegedly mutual connections to former

President William J. Clinton. Although Plaintiffs have not filed a formal motion for

disqualification pursuant to 28 U.S.C. § 144, they argue that the Court should disqualify itself

pursuant to 28 U.S.C. § 455 and reassign this matter to a new judge for retrial.

The Court finds that there is no substantive basis for a new trial because no reasonable

observer would question the Court’s impartiality based on the evidence produced by Plaintiffs: a

shared interest in glass art alone does not suggest partiality, and the alleged political connection

is far too attenuated to be suggestive of bias. In addition to lacking merit on substantive grounds,

the Court finds that Plaintiffs’ attempt to disqualify the Court is procedurally untimely because it

was not raised until long after Plaintiffs should have learned the facts that form the basis for their

motion. Accordingly, the Court shall DENY Plaintiffs’ Motion for New Trial.

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 I. BACKGROUND

A. Factual and Procedural Background

The Court set out its factual findings thoroughly in its Memorandum Opinion issued on

January 26, 2011, and the Court assumes familiarity with that opinion here. See Armenian

Assembly of Am., Inc. v. Cafesjian, ___ F. Supp. 2d ___, 2011 WL 229354 (D.D.C. Jan. 26,

2011). Relatively few facts from that opinion are relevant to Plaintiffs’ Motion for New Trial,

and they are summarized below.

In the late 1990s, Cafesjian and several individuals involved with the Assembly joined

forces in an effort to create a museum devoted to memorializing the Armenian Genocide. In

2000, the Assembly purchased a prominent building in downtown Washington, D.C. (the “Bank

Building”) for the purpose of housing the genocide museum. This Bank Building was purchased

using money donated by Cafesjian (through CFF and another organization affiliated with

Cafesjian) and another philanthropist, Anoush Mathevosian. One of the conditions for

Cafesjian’s donation was the creation of a memorial as part of the genocide museum project. On

March 30, 2000, the Assembly sent Cafesjian a letter confirming his donations and its obligation

to build a memorial. This letter noted that Cafesjian’s proposed design for the memorial had not

been finalized but that his concept consisted of a “walk-in, contemplative, chapel-like space, with

interior walls of native Armenian stone and a glass sculpture by Stanislav Libensky as the focal

point.” The memorial was expected to take up approximately 1200 square feet of floor space and

40,000 cubic feet of overall volume. The Assembly agreed to cooperate with the design firm or

artist chosen by CFF to complete the memorial, and CFF agreed to make contributions to the

Assembly to finance the memorial. Cafesjian had to abandon his plan for the glass sculpture

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when Libensky died a few years later, long before this litigation began.

Once the Bank Building was acquired by the Assembly, Cafesjian began to acquire

properties adjacent to the Bank Building. Cafesjian initially planned to use the adjacent

properties to build a contemporary art museum that would also draw more visitors to the

genocide museum. Ultimately, Cafesjian abandoned that plan and instead decided to build a

contemporary art museum in Yerevan, Armenia. At that point, in late 2001, he decided to donate

the adjacent properties to the Assembly for purposes of expanding the footprint of the genocide

museum project, and his donation was secured through a Grant Agreement which obligated the

Assembly to make a space available within the museum for a memorial to be constructed with

input from CFF. In late 2003, AGM&M was formed as a new organization to manage the

properties and create the genocide museum.

The genocide museum project stalled after years of disagreement over its size and scope,

ultimately resulting in a series of lawsuits, the first of which was filed in April 2007. One of the

claims raised by Defendants in the lawsuits before the Court was that the group controlling

AGM&M had not let Cafesjian participate in the design for the memorial as required by the

Grant Agreement. The record at trial indicated that the group controlling AGM&M had

considered building the memorial as a garden on the site. However, the Court found that the

plans for the memorial were never finalized, and the Court ruled against Defendants on this

claim. The parties did not present any evidence at trial regarding Cafesjian’s plans for the

memorial after 2000, and there was no indication in the record that Cafesjian still intended to use

glass sculpture in the design after Libensky died.

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 B. Allegations Relating to the Motion for New Trial

Plaintiffs’ motion for a new trial is premised upon evidence of an alleged “shared

interest” between Cafesjian and the Court relating to glass art, as well as an alleged political

connection between the Court and Cafesjian through former President William J. Clinton. That

evidence, which is attached in the form of exhibits to Plaintiffs’ motion and reply brief, consists

of the following.

In 1999, the undersigned and her husband, identified as “Mr. and Mrs. John T. Kotelly,”

contributed to the purchase of a glass sculpture called Vestment II by Stanislav Libensky and

Jaroslava Brychtova for the collection of the Metropolitan Museum of Art in New York City.

See Pl.’s Ex. F (Metropolitan Museum of Art web page for Vestment II). The other donors who

are listed as contributing to the acquisition, which was a gift from the Heller Gallery in New

York, are Drs. Myra and J. and Harold Weiss, George F. Russell Jr., Geoffrey J. Isles, and Gerard

L. Cafesjian. Id. This piece is also described in an exhibition catalogue published in 2002 by the

Museum of Glass in Tacoma, Washington called The Inner Light: Sculpture by Stanislav

Libensky and Jaroslava Brychtova; the undersigned and her husband are listed among the

“Catalogue Sponsors,” while Gerard L. Cafesjian is listed among the “Lenders” to the exhibition,

which featured both Vestment II and several works from Cafesjian’s own collection. See Pl.’s

Reply Ex. A.

According to an article published on a website affiliated with the Smithsonian American

Art Museum, the undersigned and her husband began collecting art in 1978, and their love of

glass was sparked in 1984 at an exhibition of studio glass art at the Renwick Gallery, a branch of

the Smithsonian American Art Museum. See Pl.’s Ex. D (“Collectors’ Roundtable: Glass Acts”).

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John T. Kotelly is quoted in that article as saying, “People who are collectors have a special gene,

and we can’t help ourselves.” Id. John Kotelly is a past president of the James Renwick

Alliance, a nonprofit organization dedicated to American craft art. See id. He is presently

among 44 individuals who serve on the Advisory Board of the Art Alliance for Contemporary

Glass, a not-for-profit organization whose mission is to further the development and appreciation

of art made from glass. See Pl.’s Ex. E (Art Alliance for Contemporary Glass List of Officers,

Board of Directors, Advisory Board). According to an oral history by two collectors, the

undersigned and her husband were described as part of a long-range planning committee for the

Art Alliance for Contemporary Glass in 2001. See Pl.’s Ex. K (Oral History Interview with Dale

and Doug Anderson). In 2004, they offered a tour of their home collection as part of an auction

sponsored by the James Renwick Alliance. They are also listed in the acknowledgments section

of the book Fire and Form: The Art of Contemporary Glass, published in 2003, where they are

described by the author as “friends and fellow collectors.” See Pl.’s Reply Ex. B. One of the

sources listed in the bibliography for that book is a catalogue from an exhibition of glass works

from Cafesjian’s collection. See id. John Kotelly is also mentioned in an April 2004 bulletin as

being part of the creation of the Founders’ Circle for the Mint Museum of Craft and Design in

Charlotte, North Carolina, which has a permanent collection that includes works by Libensky and

Brychtova and Chihuly. See Pl.’s Ex. H (Founders’ Circle Bulletin).2

Cafesjian testified at trial that he was an avid art collector and collector of glass art in

2
In their reply brief, Plaintiffs refer to an alleged grant by the Art Alliance for
Contemporary Glass to the Museum of Contemporary Arts and Design for a “Libensky and His
Students” exhibition in which Cafesjian allegedly participated. However, Plaintiffs have not
identified what evidence in the record, if any, supports this claim.

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particular. See Pl.’s Ex. B (Cafesjian Trial Tr.) at 137-38. Cafesjian also testified that he

initially planned for Stanislav Libensky to design something for the chapel-like memorial space

in the genocide museum but that Libensky died before that could come to fruition. Id. at 138.

Cafesjian testified that his art museum in Armenia contains several pieces by Libensky, Dale

Chihuly, and Arshile Gorky. See Pl.’s Ex. A (Cafesjian Trial Tr.) at 60. According to the

website for his museum in Armenia, Cafesjian has over one hundred pieces by Libensky and

Brychtova in his collection, and there have been several exhibitions featuring their work at the

museum in Armenia. See Pl.’s Ex. G. Another artist whose works have been exhibited at

Cafesjian’s museum in Armenia is Sidney Hutter. See Pl.’s Ex. I (List of Hutter Exhibitions).

Hutter’s works have also been exhibited at the Renwick Gallery. Id. Plaintiffs have also

produced evidence suggesting that another artist, Ginny Ruffner, has had works exhibited at the

Renwick Gallery as well as at the Scottsdale Museum of Contemporary Art as part of Cafesjian’s

collection. See Pl.’s Ex. J (List of Ruffner Exhibitions).

Plaintiffs also contend that there is a political connection between Cafesjian and the

Court. Plaintiffs have produced a published interview with Dwight Opperman, one of

Cafesjian’s former colleagues,3 indicating that he knew President Clinton and once offered him a

place to sleep in his office during Clinton’s presidency. See Pl.’s Ex. L (“Dwight Opperman:

The Q&A”). Plaintiffs argue that this connects Cafesjian to the Court because the undersigned

was appointed to the federal judiciary by President Clinton. There was no evidence at trial

relating to any connection between Cafesjian or Opperman and President Clinton.

3
The record at trial indicated that Opperman was the Chairman and President of West
Publishing while Cafesjian served as one of two Executive Vice-Presidents.

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 C. Declarations Filed In Support and Opposition to Plaintiffs’ Motion

In support of their motion, Plaintiffs have provided a declaration from Van Krikorian, an

attorney who is a member of the Assembly’s Board of Trustees and who served as the

Assembly’s corporate representative at trial. See Decl. of Van Krikorian ¶ 1. Krikorian avers

that when the Assembly decided to waive its right to a jury trial and proceed with a bench trial,

the Assembly was unaware of the Court’s allegedly shared interests with Cafesjian. Id. ¶ 6.

Krikorian further avers that it was not until after the trial opinion was issued that the Assembly

first learned of the joint donation relating to Vestment II and the other allegedly shared interests

between the Court and Cafesjian. Id. ¶ 8. Krikorian avers that after the trial opinion was issued,

several Assembly members familiar with Cafesjian recalled him boasting of connections with

judges. Id. Based on these comments, Krikorian performed web searches for the name of the

undersigned and her husband, producing the information that forms the basis for Plaintiffs’

motion for a new trial. Id. ¶ 9.

In opposition to Plaintiffs’ motion, Defendants have presented two declarations from

Cafesjian. See Decl. of Gerard L. Cafesjian (“Cafesjian Decl.”); Suppl. Decl. of Gerard L.

Cafesjian (“Suppl. Cafesjian Decl.”). Cafesjian states that he has long held an interest in

promoting the arts, and he has donated to many museum acquisitions over the years. Cafesjian

Decl. ¶ 2. Cafesjian explains that in 1999, the Heller Gallery in New York City asked him if he

wished to make a donation to the Metropolitan Museum of Art to fund the acquisition of a new

work by Stanislav Libensky. Id. Cafesjian explains that he agreed to provide a donation, but he

did not know the identities of any other donors to that acquisition. Id. ¶ 3. Cafesjian avers that

he was unaware that the undersigned and her husband had made a contribution to the Libensky

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acquisition until the Assembly filed its motion for a new trial. Id. ¶ 4. Cafesjian also avers that

prior to the day he testified in Court, he had never met or communicated with the undersigned.

Id. Cafesjian further states that he has never met or communicated with John T. Kotelly. Id.

Cafesjian further explains that before the case was assigned to this Court, he was not familiar

with the undersigned in any way and was not aware of any interest by the undersigned or her

husband in glass art. Suppl. Cafesjian Decl. ¶ 5.

II. LEGAL STANDARD

A. Motions for a New Trial Under Rule 59

Federal Rule of Civil Procedure 59(a) provides that “[t]he court may, on motion, grant a

new trial on all or some of the issues—and to any party—as follows: . . . after a nonjury trial, for

any reason for which a rehearing has heretofore been granted in a suit in equity in federal court.”

Fed. R. Civ. P. 59(a)(1)(B). “The decision to grant or deny such a motion lies within the sound

discretion of the court.” In re Lorazepam & Chlorazepate Antitrust Litig., 467 F. Supp. 2d 74,

87 (D.D.C. 2006) (citations omitted). “[J]udicial misconduct may serve as a ground for granting

a motion for new trial.” Colunga v. Young, 722 F. Supp. 1479, 1489 (W.D. Mich. 1989), aff’d,

914 F.2d 255 (6th Cir. 1990). “Misconduct may consist of actual bias or hostility on the trial

judge’s part, or creation by the judge of an appearance of bias or hostility.” Id.

B. Motions for Disqualification

Federal law provides that “[a]ny justice, judge, or magistrate judge shall disqualify

h[er]self in any proceeding in which [her] impartiality might reasonably be questioned.” 28

U.S.C. § 455(a). “The question is whether a reasonable and informed observer would question

the judge’s impartiality.” United States v. Microsoft, 253 F.3d 34, 114 (D.C. Cir. 2001).

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Disqualification is also required “[w]here [the judge] has a personal bias or prejudice concerning

a party, or personal knowledge of disputed evidentiary facts concerning the proceeding,” 28

U.S.C. § 455(b)(1), or where the judge “knows that [she], individually or as a fiduciary, or [her]

spouse or minor child residing in [her] household, has a financial interest in the subject matter in

controversy or in a party to the proceeding, or any other interest that could be substantially

affected by the outcome of the proceeding,” id. § 455(b)(4); see also id. § 455(b)(5)(iii).4

“[B]ecause judges are presumed to be impartial, the Court must begin its analysis of the

allegations supporting . . . a request [for recusal] with a presumption against disqualification.”

SEC v. Bilzerian, 729 F. Supp. 2d 19, 22 (D.D.C. 2010) (quotation marks and citation omitted);

accord Am. Prairie Constr. Co. v. Hoich, 594 F.3d 1015, 1021 (8th Cir. 2010) (“A judge is

presumed to be impartial, and the party seeking disqualification bears the substantial burden of

proving otherwise.”) (citations and quotation marks omitted).

Litigants may compel a judge to consider whether disqualification is warranted by

complying with 28 U.S.C. § 144, which provides:

Whenever a party to any proceeding in a district court makes and files a timely and
sufficient affidavit that the judge before whom the matter is pending has a personal
bias or prejudice either against him or in favor of any adverse party, such judge shall
proceed no further therein, but another judge shall be assigned to hear such
proceeding.

The affidavit shall state the facts and the reasons for the belief that bias or prejudice
exists, and shall be filed not less than ten days before the beginning of the term at
which the proceeding is to be heard, or good cause shall be shown for failure to file
it within such time. A party may file only one such affidavit in any case. It shall be
accompanied by a certificate of counsel of record stating that it is made in good faith.

4
Section 455(b) also describes other circumstances requiring recusal, but they are not
relevant here. See 28 U.S.C. § 455(b).

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28 U.S.C. § 144. “The motion and affidavit must be timely filed, show a true personal bias, and

must allege specific facts and not mere conclusions or generalities.” Bhd. of Locomotive

Firemen & Enginemen v. Bangor & Aroostook R.R. Co., 380 F.2d 570, 576-77 (D.C. Cir. 1967)

(citations omitted). In deciding whether to grant a motion to disqualify under § 144, the court

“must accept the affidavit’s factual allegations as true even if the judge knows them to be false.”

Loving Spirit Found., 392 F.3d at 496. “[D]isqualification is not automatic upon submission of

affidavit and certificate; rather, the judge must review these submissions for legal sufficiency and

construe them strictly against the movant to prevent abuse.” United States v. Miller, 355 F.

Supp. 2d 404, 405 (D.D.C. 2005) (internal citations omitted). Furthermore, “it is the duty of the

judge not to permit the use of a motion or affidavit of prejudice as a means to accomplish delay

and otherwise defeat the orderly administration of justice.” United States v. Hall, 424 F. Supp.

508, 534 (W.D. Okla. 1975), aff’d, 536 F.2d 313 (10th Cir. 1976).

The “bias or prejudice” ground for disqualification under § 144 is covered by § 455(b)(1).

See 28 U.S.C. § 455(b)(1) (requiring disqualification “[w]here [the judge] has a personal bias or

prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the

proceeding.”). The “catchall” provision of § 455(a) also covers the “bias or prejudice” ground

but broadens its scope to cover the objective appearance of bias or prejudice. Liteky v. United

States, 510 U.S. 540, 548 (1994). Accordingly, the Court shall analyze Plaintiffs’ “bias or

prejudice” claim through the broader lens of § 455(a).5

5
Plaintiffs imply in their reply brief that the standard for disqualification under § 455
should be heightened in cases such as this one where the Court serves as the finder of fact at trial.
However, Plaintiffs cite no authority in support of this proposition, and the recusal statutes do not
make any distinction between a judge’s impartiality for purposes of presiding over a jury trial and
a judge’s impartiality for purposes of finding facts following a bench trial. Although this

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 Although the Court must accept as true any specific facts alleged in a § 144 affidavit, “the

facts alleged in the papers submitted by a person relying on section 455 [need not] in every case

be accepted as true, whether the papers be a verified memorandum or are in some other form.”

United States v. Heldt, 668 F.2d 1238, 1271 (D.C. Cir. 1981). For purposes of deciding

Plaintiffs’ motion, the Court shall accept the facts presented by Plaintiffs as true. In addition, and

in the alternative, the Court shall accept as true the facts averred by Cafesjian in his declarations

to the extent that they are not contradicted by the evidence presented by Plaintiffs.

III. DISCUSSION

Plaintiffs contend, based on the facts presented in their Motion for New Trial, that the

impartiality of the Court in making its findings of fact and conclusions of law might reasonably

be questioned, and therefore the Court should stay all further proceedings and refer the matter to

another judge for a new trial. Plaintiffs insist in their papers that their motion for a new trial is

filed pursuant to Rule 59(a) and that it is not filing a separate motion for disqualification

pursuant to 28 U.S.C. § 144. See Pls.’ Reply at 1 n.1. However, Plaintiffs also rely in part on

§ 144 in their motion and purport to have complied with its provisions. Therefore, out of an

abundance of caution, the Court shall first consider Plaintiffs’ motion for a new trial as if it were

a motion filed under § 144. Then, the Court shall independently consider whether the Court

should have disqualified itself under 28 U.S.C. § 455 and whether a new trial is appropriate on

that basis.

distinction might be relevant in determining an appropriate remedy for a failure to disqualify, the
Court need not and does not decide that issue.

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 A. Plaintiffs’ Motion Is Untimely

Whether Plaintiffs’ motion is considered under § 144 or § 455, the Court must consider

whether the motion was timely filed. “Crucial to the integrity of the judicial process, the

timeliness requirement [in § 144] ensures that a party may not wait and decide whether to file

based on ‘whether he likes subsequent treatment that he receives.’” SEC v. Loving Spirit Found.,

Inc., 392 F.3d 486, 492 (D.C. Cir. 2004) (quoting In re United Shoe Mach. Corp., 276 F.2d 77,

79 (1st Cir. 1960)). “[W]hile section 455(a) contains no express timeliness provision, most

circuits considering the matter have concluded that a litigant must raise the disqualification issue

within a reasonable time after the grounds for it are known.” United States v. Barrett, 111 F.3d

947, 951 (D.C. Cir. 1997) (citations omitted); accord Ascom Hasler Mailing Sys., Inc. v. U.S.

Postal Serv., Civil Action Nos. 00-1401, 00-2089, 2010 WL 4116858, at *2-3 (D.D.C. Oct. 19,

2010) (ruling that recusal motion under § 455 was untimely when filed three and a half years

after events supposedly justifying recusal). Importantly, “[t]he rule has been applied when the

facts upon which the motion relies are public knowledge, even if the movant does not know

them.” United States v. Siegelman, 561 F.3d 1215, 1243 (11th Cir. 2009) (per curiam) (citing

Nat’l Auto Brokers Corp. v. Gen. Motors Corp., 572 F.2d 953, 957-59 (2d Cir. 1978)), vacated

on other grounds, 130 S. Ct. 3542 (2010); accord Universal City Studios, Inc. v. Reimerdes, 104

F. Supp. 2d 334, 349 & n.88 (S.D.N.Y.) (“For purposes of timeliness, the applicant is charged

with knowledge of all facts ‘known or knowable, if true, with due diligence from the public

record or otherwise.’”) (quoting Hirschkop v. Va. State Bar Ass’n, 406 F. Supp. 721, 724 (E.D.

Va. 1975)).

In this case, Van Krikorian states in his declaration that the information which forms the

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basis for the new trial motion was obtained from an internet search of the names “Mrs. John T.

Kotelly” and “John T. Kotelly” that Krikorian conducted based on suggestions from Assembly

members after the trial opinion was issued. See Krikorian Decl. ¶ 9. Although the Court cannot

doubt that Krikorian waited until after the Court issued its trial opinion to perform such a search,

Plaintiffs could have and should have discovered any relevant facts long before the trial was held

in these actions. Information about the acquisition of Vestment II by the Metropolitan Museum

of Art in 1999 was publicly available long before the trial began in November 2010, as were

other facts relating to the interest of the undersigned and her husband in glass art. Information

about Cafesjian’s interest in glass art has been known to the Assembly since at least 2000 when it

confirmed Cafesjian’s initial plans for the memorial, and additional information about

Cafesjian’s investments in art were produced in pretrial discovery. Indeed, one of Plaintiffs’

arguments at trial was that Cafesjian had shirked his duties to AGM&M by focusing all his

energy on his art museum in Armenia. Therefore, there is no reason why Plaintiffs could not

have performed a simple internet search and discovered the alleged “connection” between the

Court and Cafesjian before the parties devoted substantial resources trying the case before the

undersigned.6

Based on Van Krikorian’s declaration, it appears that the filing of the motion was

motivated by the fact that Plaintiffs received a largely adverse decision from the Court rather than

by the sudden discovery of an alleged bias. Cf. Siegelman, 561 F.3d at 1243 (“[Party’s] recusal

6
It is unclear whether the information relating to the alleged political connection between
Cafesjian and the Court through Dwight Opperman and President Clinton was publicly available
long before Plaintiffs filed their motion for a new trial; the interview upon which Plaintiffs rely
appears to have been published in 2011. Therefore, to the extent Plaintiffs’ motion is based on
this connection, it appears to be timely.

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motion . . . has all the earmarks of an eleventh-hour ploy based upon his dissatisfaction with the

jury’s verdict and the judge’s post-trial rulings.”). Because Plaintiffs did not promptly bring their

concerns to the attention of the Court, the Court finds that Plaintiffs’ challenge to the Court’s

qualifications based on §§ 144 and 455 is untimely and may be denied on that basis alone.

However, the Court shall proceed in the alternative and consider the merits of Plaintiffs’

arguments.

B. Plaintiffs’ Motion Does Not Comport with 28 U.S.C. § 144

Although Plaintiffs disclaim that they are filing a motion for disqualification pursuant to

§ 144, Plaintiffs have provided a certificate of counsel that purports to comply with the statute.

“[T]o guard against the removal of an unbiased judge through the filing of a false affidavit, the

statute requires the attorney presenting the motion to sign a certificate stating that both the

motion and declaration are made in good faith.” Loving Spirit Foundation, 392 F.3d at 496

(internal citations omitted). The certificate submitted by Plaintiffs’ counsel states that

“Plaintiff’s request for the disqualification of Judge Kollar-Kotelly is made in good faith,” see

Decl. of Eric I. Abraham ¶ 2, but it does not state that the declaration of Van Krikorian was

submitted in good faith. Therefore, Plaintiffs’ motion is not supported by a valid certificate of

counsel pursuant to § 144. Accordingly, the motion may be denied to the extent it is based on

§ 144.

C. A Reasonable Observer Would Not Question the Court’s Impartiality Based on
the Evidence Produced By Plaintiffs

Plaintiffs contend that the Court and Cafesjian have a “mutual interest and beneficial

relationship” that was not disclosed and may have biased the outcome of the bench trial.

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Plaintiffs rely on the standard for disqualification under § 455(a), arguing that the connection

between the Court and Cafesjian rises to the level where the Court’s “impartiality might

reasonably be questioned.” Plaintiffs also argue that disqualification is required under § 455(b)

because the undersigned or her husband has an “interest that could be substantially affected by

the outcome of the proceeding.” 28 U.S.C. § 455(b)(5)(iii). The Court shall evaluate each of

these claims.

1. A Shared Interest in Glass Art Does Not Suggest Partiality

The evidence presented by Plaintiffs indicates that: (1) both Cafesjian and the

undersigned, along with several other donors, contributed to the acquisition of a piece of art by

the Metropolitan Museum of Art in New York City in 1999; (2) both Cafesjian and the

undersigned have an interest in collecting works of glass art by certain artists; and (3) both

Cafesjian’s name and the names of the undersigned and her husband appear in certain

publications relating to glass art collections, predominantly museum collections. Plaintiffs

insinuate that these “connections” between the Court and Cafesjian imply to the reasonable

observer that the Court had a preexisting relationship or “familiarity” with Cafesjian that was

undisclosed to the parties. Even setting aside Cafesjian’s declarations explicitly disavowing any

connection between himself and the undersigned and her husband or any knowledge of a shared

interest in glass art, none of the evidence cited by Plaintiffs indicates that the Court actually knew

who Cafesjian was prior to this litigation. The fact that the Court and Cafesjian both donated

funds for the acquisition of Vestment II does not demonstrate that they acted in concert. At most,

Plaintiffs’ evidence could give rise to an inference that the undersigned may have been aware of

Cafesjian as a fellow patron of glass art. But that inference would not lead a reasonable observer

16
to question the Court’s impartiality.

Plaintiffs imply that the Court was trying to hide its connection to Cafesjian when it

“exhibited particular sensitivity to the cross-examination of Mr. Cafesjian by trial counsel for the

Assembly on the subject of his relationship with members of the federal judiciary, sustaining an

objection by Mr. Cafesjian’s counsel.” Pl.’s Mot. at 3 n.1. A review of the trial transcript

reveals that the Assembly’s trial counsel asked Cafesjian a series of questions relating to

Cafesjian’s personal relationships with Supreme Court justices and other judges and whether

Cafesjian was proud of those relationships. See Trial Tr. (11/19 AM) at 70-71. After the

Assembly’s counsel asked with whom Cafesjian was personally friendly on the Supreme Court,

the Court asked counsel why this information was relevant to the case. See id. at 71. The subject

had arisen in the context of Cafesjian’s work on rule-of-law initiatives in Armenia, when

Cafesjian noted that former Justice Sandra Day O’Connor had helped him with that issue. See id.

at 69-70. The Assembly’s counsel explained that he was trying to demonstrate that Cafesjian

was “an egomaniac.” Id. at 72. The Court noted that counsel was free to make that argument but

that the Court was capable of making its own credibility determinations, and knowing which

justices on the Supreme Court Cafesjian knew would not help the Court decide the relevant

issues in the case. Id. at 72-73. Therefore, the Court’s comments during the cross-examination

of Cafesjian had nothing to do with any alleged relationship between Cafesjian and the

undersigned; they were focused on limiting the scope of testimony to issues that were relevant.

There was no indication from the record that Cafesjian was going to testify about any connection

with federal judges based on his art collecting activities.

Even assuming arguendo that the Court was aware of Cafesjian based on their mutual

17
interest in glass art, such a familiarity or shared interest does not “raise the appearance of

prejudice in the mind of a reasonable person who is familiar with all the facts.” Heldt, 668 F.2d

at 241-42. Judges need not disqualify themselves under § 455 simply because they have a prior

relationship with a litigant. For example, judges are not automatically required to recuse

themselves in cases involving their former clients. See 28 U.S.C. § 455(b)(2) (requiring

disqualification only where the judge or a lawyer with whom the judge practiced “served as

lawyer in the matter in controversy”)7; David v. City and County of Denver, 101 F.3d 1344, 1351

(10th Cir. 1996) (“[U]nder § 455(a), a judge’s prior representation of a witness or a party in an

unrelated matter does not automatically require disqualification.”); Nat’l Auto Brokers Corp.,

572 F.2d at 958 (“The prior representation of a party by a judge or his firm with regard to a

matter unrelated to litigation before him does not automatically require recusal.”).

In considering whether a judge’s relationship with an interested party raises a reasonable

question as to the judge’s impartiality, courts look to the nature of the relationship and its

relevance to the proceedings before the judge. See, e.g., United States v. Cole, 293 F.3d 153, 164

(4th Cir. 2002) (holding that recusal was not required in a criminal case where defendant was the

son of the judge’s deceased godparents and the judge had not had any contact with the defendant

for over ten years); United States v. Lovaglia, 954 F.2d 811, 816-17 (2d Cir. 1992) (holding that

judge’s past social relationship with family whose businesses were victimized by defendants’

RICO violations did not require recusal where relationship ended seven or eight years before

sentencing and the judge had no knowledge of contested facts as a result of the relationship).

7
The Supreme Court has explained that although § 455(a) has a “broader reach” than
§ 455(b), the two subsections should be construed so as to be consistent with each other. Liteky,
510 U.S. at 552-53 & n.2.

18
The only documented “connections” between the Court and Cafesjian date back to 1999 and

2002, long before the lawsuits now pending before the Court were filed, and Cafesjian explicitly

denies that he knew the undersigned before this litigation.

The fact that the Court appears to share a cultural interest in glass art with Cafesjian

would not lead a reasonable person to question the Court’s impartiality. Judges are not soulless

automatons; they are permitted to have social and cultural interests outside the courtroom. Cf.

Sexson v. Servaas, 830 F. Supp. 475, 478 (S.D. Ind. 1993) (“In taking the oath of office as a

judge, a person does not agree to be a hermit removed from the world.”). The fact that a judge’s

interests overlap with those of a litigant does not ordinarily raise questions about her ability to act

impartially in her capacity as a judge. See, e.g., Hoatson v. N.Y. Archdiocese, 280 F. App’x 88,

90-91 (2d Cir. 2008) (holding that involvement by judge and his wife in Catholic community

organizations did not require recusal in case involving the Catholic Church).

It is generally recognized, for example, that a judge need not recuse herself from a case

involving her alma mater, even where the judge’s past activities might reasonably suggest that

she has an affinity for the institution. See, e.g., Lunde v. Helms, 29 F.3d 367, 370-71 (8th Cir.

1994) (finding no basis for recusal where the judge was an alumnus of the defendant university,

had made financial contributions to the university, and had been involved in the university’s

educational programs), and Wu v. Thomas, 996 F.2d 271, 274-75 & n.7 (11th Cir. 1993) (no

recusal required where judge made past contributions to the university defendant and held

position as unsalaried adjunct professor), both cited with approval in District of Columbia v.

Doe, 611 F.3d 888, 899 (D.C. Cir. 2010). But see Liljeberg v. Health Servs. Acquisition Corp.,

486 U.S. 847, 864-68 (1988) (requiring recusal where judge served on the board of trustees of a

19
university that had a financial interest in the litigation).

Similarly, a judge’s past membership in organizations that advocate for positions

advanced by a party does not necessarily require recusal. See Sierra Club v. Simkins Indus., Inc.,

847 F.2d 1109, 1117-18 (4th Cir. 1988) (holding that judge’s past membership in Sierra Club

before appointment to the bench more than a decade earlier did not require recusal from case

where the Sierra Club was a party); Wessman ex rel. Wessman v. Bos. Sch. Comm., 979 F. Supp.

915, 916-18 (D. Mass. 1997) (rejecting argument that disqualification was required based on

judge’s past activities as a civil rights lawyer and membership in the Lawyer’s Committee for

Civil Rights of the Boston Bar Association). The claim that the undersigned would be biased in

favor of Cafesjian because she shares his affinity for glass art is astonishing, for it suggests that

the Court is incapable of separating personal interests from the performance of judicial duties. A

reasonable observer must assume that judges are ordinarily capable of setting aside their own

interests and adhering to their sworn duties to “faithfully and impartially discharge and perform

all the duties” incumbent upon them. See 28 U.S.C. § 453 (judicial oath of office).

In their motion for a new trial, Plaintiffs exaggerate the extent to which Cafesjian’s

interest in glass art was actually relevant to the issues at trial. Plaintiffs imply that Cafesjian’s

desire to build a memorial with a Libensky centerpiece was critical to his vision and that the

Court would have been influenced by this in deciding the merits of the case. But the record at

trial indicated only that this was Cafesjian’s initial plan for the memorial in 2000, after which

Libensky died. There was little, if any, evidence in the record about Cafesjian’s plans for the

memorial after Libensky died, and there was no evidence that glass art was a part of Cafesjian’s

future plans. Cafesjian’s plans for the memorial were relevant to Defendants’ claims that the

20
Assembly and AGM&M had breached their contractual obligations by failing to allow CFF to

exercise its right to participate in and approve the design of the memorial, but the focus at trial

was not on the substance of Cafesjian’s plans but rather on the extent to which Cafesjian was

allowed to participate in the design and construction of the memorial. Because the entire

genocide museum project never got past the planning stages, the Court ultimately found that the

Assembly and AGM&M had not breached their contractual obligations.8 See [193] Mem. Op. at

179-82. Therefore, Cafesjian’s initial desire to include glass art in the memorial was not relevant

to the Court’s decision on these issues. Indeed, Plaintiffs recognize this in their reply brief,

arguing somewhat ironically that the Court’s decision to include the details about Cafesjian’s

initial plans for the memorial in its Memorandum Opinion demonstrates its bias. See Pl.’s Reply

at 2-3 (“The mere reference to the identity of the sculptor proves the point: whether or not

Libensky created the sculpture had no relevance to the issues of breaches of fiduciary and other

duties that the Judge was deciding. The Judge seized upon this detail precisely because it was of

particular interest to her.”). While it is true that Cafesjian’s intent to work with Libensky was

ultimately irrelevant to the merits of the parties’ claims, the Court’s decision to include this

historical fact about the genesis of the memorial for context—on the fourth page of a recitation of

background facts that spanned 127 pages—can hardly be seen as evidence of bias by the Court.9

Plaintiffs do not claim that the Court has any financial interest that would require

8
That the Court ruled in favor of Plaintiffs on this issue should undermine any claim that
the Court was or is biased in favor of Cafesjian.
9
The Court also finds it significant that Plaintiffs have not pointed to any other aspects of
the Court’s Memorandum Opinion that purport to show bias in favor of Cafesjian based on an
alleged mutual interest.

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disqualification. See 28 U.S.C. § 455(b)(4) (requiring disqualification where a judge or her

spouse or minor child residing in her household “has a financial interest the subject matter in

controversy or in a party to the proceeding . . . .”). Instead, Plaintiffs argue that disqualification

is proper under § 455(b)(5)(iii), which requires recusal where the judge or her spouse or minor

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

outcome of the proceeding.” “Where a case . . . involves remote, contingent, indirect or

speculative interests, disqualification is not required.” Lovaglia, 954 F.2d at 815. For example,

a judge generally need not recuse in cases where his or her child is a partner at a law firm that

represents one of the parties in other matters not before the judge; the child’s financial interest in

his client’s well-being is typically considered too remote to influence the judge. See, e.g.,

Microsoft Corp. v. United States, 530 U.S. 1301, 1302 (2000) (statement of Rehnquist, C.J.)

(holding that recusal was not required where son of Chief Justice was partner at a law firm that

represented one of the parties in matters pending before another court); In re Medtronic, Inc.

Sprint Fidelis Leads Prods. Liab. Litig., 601 F. Supp. 2d 1120, 1124-28 (D. Minn. 2009) (same),

aff’d, 623 F.3d 1200 (8th Cir. 2010). Similarly, a judge who owns stock in a company is usually

not required to recuse in cases involving that company’s competitor, since any impacts on the

market are likely to be speculative and attenuated. See In re Kan. Pub. Emps. Retirement Sys., 85

F.3d 1353, 1362 (8th Cir. 1996) (“[A] judge holding stock in General Motors should not have to

recuse from a case involving Ford Motor Company because some ruling he may make might be

used as persuasive authority in a case against GM.”); In re Placid Oil Co., 802 F.2d 783, 786-87

(5th Cir. 1986) (finding no basis for recusal where judge had large investment in a bank and

judge’s rulings might have dramatic impact on banking industry as a whole). Therefore, the fact

22
that there may be some remote connection between a judge’s interests and the case over which

she presides is insufficient to require disqualification under § 455.

Plaintiffs contend that “Cafesjian’s interest in glass art and his intent to include such art

in the [genocide] museum would further the interest of Judge Kollar-Kotelly and her husband in

raising the profile, and value, of this type of art.” Pl.’s Mot. at 4. Plaintiffs further claim that “a

decision by the Judge that facilitated the accomplishment of Mr. Cafesjian’s intentions . . . might

also have the effect of increasing the value of the collection owned by the Judge and her

husband.” Pl.’s Reply at 3. No matter how Plaintiffs characterize the “interest” at issue, there is

no support for the conclusion that this interest could be “substantially affected” by the outcome

of this litigation. The consolidated actions before the Court involve allegations of breach of

contract and breach of fiduciary duty relating to the management of AGM&M; there is no glass

art actually at issue in the litigation, and there is not a scintilla of evidence in the record

indicating that Cafesjian presently plans to use glass art as part of the design of the museum or

memorial. Plaintiffs appear to be arguing that any decision that favors Cafesjian financially will

enable him to spend more money on glass art, either as part of the genocide museum and

memorial or as part of his independent collection, and this will raise the profile and value of glass

art, thereby providing value to the undersigned or her husband. Such an argument is entirely

speculative, and the causal connection between the Court’s rulings and its alleged interest is far

too attenuated to warrant recusal under § 455. “[W]here an interest is not direct, but is remote,

contingent, or speculative, it is not the kind of interest which reasonably brings into question a

judge’s impartiality.” In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1313 (2d Cir. 1988).

Therefore, the Court finds that the interest in glass art that the undersigned and her

23
husband allegedly share with Cafesjian is not an interest that could be substantially affected by

the outcome of the proceedings pending before the Court, and it does not provide a basis from

which the Court’s impartiality might reasonably be questioned.

2. The Alleged Political Connection Between the Court and Cafesjian Does
Not Provide a Basis for Recusal

Plaintiffs argue in their motion for a new trial that the Court’s “impartiality is further

questioned based on nexus [sic] between Mr. Cafesjian, former President Clinton, and Judge

Kollar-Kotelly.” Pl.’s Mot. at 4. The Court’s only link to this alleged “political connection” is

the fact that the undersigned was appointed to the federal bench by President Clinton. Plaintiffs

appear to back off this argument in their reply brief. See Pl.’s Reply at 7 (“Plaintiffs are not

complaining that Judge Kollar-Kotelly should be disqualified because she shares a racial or

political background with Mr. Cafesjian.”). The case law is clear that recusal is not warranted

where a judge is alleged to be biased based solely on political connections to the President who

appointed her. See Karim-Panahi v. U.S. Congress, 105 F. App’x 270, 274-75 (D.C. Cir. 2004)

(affirming district court’s denial of motion for recusal based on allegations that the judge was

“biased because of her ‘political-religious connections’ and her alleged loyalty to those who

selected, confirmed, and appointed her”); MacDraw, Inc. v. CIT Grp. Equip. Fin., Inc., 138 F.3d

33, 38 (2d Cir. 1998) (rejecting plaintiff’s allegation that “a judge is not impartial solely because

an attorney is embroiled in a controversy with the administration that appointed the judge”).

Indeed, courts have held that recusal is not warranted even when the President responsible for

nominating the judge is actually a party to the litigation. See, e.g., In re Exec. Office of the

President, 215 F.3d 25, 25 (D.C. Cir. 2000) (order of Tatel, J.). Accordingly, the Court finds that

24
there is no basis for recusal based on an alleged “political connection” to Cafesjian through

former President Clinton.

Because neither the Court’s alleged political connection to Cafesjian nor its allegedly

shared interest in glass art warrants disqualification under § 144 or § 455, the Court shall deny

Plaintiffs’ motion for a new trial. For that reason, it is unnecessary to address Defendants’

alternative argument that a new trial would not be warranted even if disqualification were

required.

IV. CONCLUSION

For the foregoing reasons, the Court finds that Plaintiffs have failed to present a valid

basis for ordering a new trial. The Court finds that the evidence presented by Plaintiffs of a

shared interest in glass art or a political connection between the Court and Cafesjian through

former President Clinton would not lead a reasonable person to question the Court’s impartiality.

Simply put, the Court’s affinity for a particular art form would not influence the outcome of a

case that revolves around the parties’ largely unsuccessful efforts to build a museum that would

commemorate the Armenian Genocide and exhibit the culture, journey, and suffering of those

who perished and those who survived. Furthermore, the Court finds that Plaintiffs’ attempt to

disqualify the Court is procedurally untimely because it is based on facts that were either known

to Plaintiffs or should have been discovered well before trial, not after the Court issued its

findings of fact and conclusions of law. The Court also finds that Plaintiffs’ motion cannot be

considered under 28 U.S.C. § 144 because Plaintiffs’ counsel has not certified that the

declaration of Van Krikorian was made in good faith. Accordingly, the Court shall DENY

Plaintiffs’ [208] Motion for New Trial. An appropriate Order accompanies this Memorandum

25
Opinion.

Date: May 9, 2011 /s/
COLLEEN KOLLAR-KOTELLY
United States District Judge

26