Magistrate Judge Declines to Recuse After Sanctioning Rabbi Shmuley Boteach for Violating Court Order in Anti-Semitism Lawsuit
· Reason
From Magistrate Judge Marty Fulgueria Elfenbein yesterday in Fontainebleau Florida Hotel, LLC v. Botach(for more on the sanctions decision, see this post):
On December 19, 2024, Plaintiff Fontainebleau Florida Hotel, LLC ("Plaintiff") filed this action in state court alleging claims against Defendant for defamation, aiding and abetting defamation, tortious interference with business relationships, and aiding and abetting tortious interference with business relationships. Thereafter, on January 16, 2025, Defendant removed the lawsuit to the Southern District of Florida and the case was assigned to the Honorable K. Michael Moore. On January 21, 2025, Judge Moore referred all pretrial discovery matters to the undersigned….
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At the commencement of a discovery hearing held on September 30, 2025, the Court sua sponte made a disclosure to the Parties—one that was prompted by Mr. Friedman's filing of his Notice of Appearance [on behalf of Plaintiff]. At the beginning of the discovery hearing, the Court advised the Parties of the following:
THE COURT: OK. Well, good morning to all of you. I did want to before we start this hearing today to disclose, because I see Mr. Friedman entered an appearance last night in the case, I do want to disclose to the parties that I am friends with Mr. Friedman's wife. She and I worked as [Assistant] United States attorneys together for five years at the U.S. Attorney's Office. Nonetheless, my friendship is with Mr. Friedman's wife, not with Mr. Friedman. So I do disclose that. Nonetheless, for the parties to know that, I don't think there is any kind of basis to recuse, but I like to make those disclosures in an abundance of caution.
Nearly one year after this disclosure, on September 8, 2026, Defendant moved to recuse and or disqualify the undersigned from this matter on the basis of undisclosed facts that, according to Defendant, would lead "an objective observer, fully informed of the undisclosed relationship" to "doubt" the undersigned's "impartiality." Specifically, Defendant points to five undisclosed facts, which are the following: (1) that the undersigned and Mr. Friedman's wife, Lindsey Lazopoulos Friedman, prosecuted two cases together while working at the United States Attorney's Office; (2) that Mrs. Lazopoulos Friedman served on the Court's Magistrate Judge Merit Selection Panel in 2023 that ultimately resulted in the undersigned's appointment as a Magistrate Judge by the District Judges of the Southern District of Florida; (3) that Mrs. Lazopoulos Friedman was one of the speakers at the undersigned's investiture; (4) that the Friedman family belongs to the same Jewish congregation as the undersigned and both participated as "Captains" at Temple Beth Am's Mitzvah Day program in 2023 and 2024; and (5) that the undersigned served on the Court's Jewish American Heritage Month Committee with Mrs. Lazopoulos Friedman and [one of plaintiff's lawyers,] Mr. Burstyn….
Defendant then argues that these non-disclosures coupled with the Court's recent Report and Recommendations on Plaintiff's Motion for Sanctions, recommending case-dispositive sanctions against Defendant, would lead one to question the undersigned's impartiality.
The Magistrate Judge concluded the objection was untimely:
"Counsel, knowing the facts claimed to support a § 455(a) recusal for appearance of partiality may not lie in wait, raising the recusal issue only after learning the court's ruling on the merits." "The policy considerations supporting a timeliness requirement are … to conserve judicial resources and prevent a litigant from waiting until an adverse decision has been handed down before moving to disqualify the judge." …
Defendant waited until after Judge Moore referred three different motions to the undersigned for a ruling or report and recommendations, after the undersigned entered eight different orders, and nearly one year after the disclosure to raise a concern about the undersigned's alleged bias and impartiality related to her relationship to Mrs. Lazopoulos Friedman. On this record, it is evident that Defendant lied in wait and decided to raise this issue only after obtaining an adverse ruling from the undersigned…. "Certainly, where the facts are known before a legal proceeding is held, waiting to file such a motion until the court has ruled against a party is untimely."
And the Magistrate Judge rejected defendant's response that the initial disclosures were inadequate:
Regarding the first alleged non-disclosure, Defendant contends the undersigned failed to explain that Mrs. Lazopoulos Friedman and the undersigned jointly prosecuted two cases, including a federal criminal jury trial in 2022. This, however, falls within the undersigned's disclosure that she worked "together" with Mrs. Lazopoulos Friedman as Assistant United States Attorneys for a five-year period…. The mere appearance of a former co-worker as counsel of record in a case is not grounds for recusal, much less the appearance of a former co-worker's spouse.
It bears noting that the role of the Magistrate Judge includes handling of criminal matters regularly. Most of the Magistrate Judges in the Southern District of Florida are former Assistant United States Attorneys or former Assistant Federal Public Defenders and their former co-workers appear before them routinely in criminal matters. Their status as former co-workers does not trigger a disclosure or recusal obligation. If that were the case, the judiciary's criminal case load would come to a grinding halt as the Magistrate Judges would be forced to recuse every time a former co-worker appeared before them in duty court.
Indeed, "reasonable well-informed observers understand that judges were previously practicing attorneys and that they may have worked for various law firms during their career"—in this case, the United States Attorney's Office….
Next, Defendant contends that the undersigned should have disclosed that Mrs. Lazopoulos Friedman was a speaker at her investiture. This also falls within the scope of the Court's September 30, 2026 disclosure when the Court explained twice that she was friends with Mrs. Lazopoulos Friedman….
But even if this information was newly discovered and the Court then takes Defendant's argument that a friendship requires recusal to its logical conclusion, then Defendant is suggesting that judges must live in a silo, isolated from the world without any professional, community, or personal relationships with other members of the bar. That is not objectively reasonable nor is that the reality of the world we live in. As the Seventh Circuit Court of Appeals observed:
In today's legal culture friendships among judges and lawyers are common. They are more than common; they are desirable. A judge need not cut himself off from the rest of the legal community. Social as well as official communications among judges and lawyers may improve the quality of legal decisions. Social interactions also make service on the bench, quite isolated as a rule, more tolerable to judges. Many well-qualified people would hesitate to become judges if they knew that wearing the robe meant either discharging one's friends or risking disqualification in substantial numbers of cases. Many courts therefore have held that a judge need not disqualify himself just because a friend—even a close friend—appears as a lawyer….
Defendant's remaining arguments are even less availing. Defendant next argues that because the undersigned and "the Friedman household served together in recurring leadership roles and have interacted in non-bar related social events," referring to the undersigned's membership at Temple Beth Am and involvement in the synagogue's Mitzvah Day, there is an appearance of lack of impartiality or bias. To put matters into context here, Temple Beth Am is one of the largest, if not the largest, Jewish congregation in all of South Florida with more than 1,800 families as members. The mere fact that the undersigned is a member of the same synagogue as the Friedman family does not warrant disclosure. The undersigned does not track—and is not required to track—every lawyer or their spouse who is a member of Temple Beth Am for disclosure purposes. Nor is the undersigned privy, as a general matter, to such information.
The Court will next provide necessary context for Defendant's suggestion that the undersigned was required to disclose that she and the Friedmans were Mitzvah Day Captains at the synagogue. Mitzvah Day is an annual day of service at Temple Beth Am where the Chairs of Mitzvah Day work on selecting service projects for the community. As Mitzvah Day Captains, the undersigned and her husband were assigned to oversee the execution of a specific service project, consisting of a clean up at Deering Estate. In doing so, the undersigned communicated with those individuals who signed up through the synagogue's website to volunteer for that specific service project and then the undersigned participated with those volunteers at that service project on Mitzvah Day. To coordinate the Deering Estate clean up, the undersigned did not work with the Mitzvah Day Captains for other projects, including the Friedmans.
The only time Mitzvah Day participants for other projects interact with one another is at the optional breakfast held at Temple Beth Am on Mitzvah Day, which takes place immediately before the service projects begin. The photograph attached to Defendant's affidavit is exactly that. It is a photograph at one of the Mitzvah Day breakfasts in which the undersigned interacted with Mrs. Lazopoulos Friedman, who was accompanied by her husband.
Again, this interaction would be covered by the undersigned's September 30, 2025 disclosure, stating: "I am friends with Mr. Friedman's wife." Because that is what friends do. They chat when they run into each other at an event—in this case, the Mitzvah Day breakfast. No specific disclosure was needed to identify this specific breakfast interaction. It was covered by the disclosure of "friendship."
Next, Defendant contends the Court should have disclosed that Mrs. Lazopoulos Friedman served on the Court's Merit Selection Panel for various Magistrate Judge vacancies, including the one the undersigned was selected to fill. This is a red herring. As a reminder, Mr. Friedman, who is counsel of record, has not served on the Merit Selection Panel to the undersigned's knowledge. Rather, it is his wife who Chief Judge Cecilia M. Altonaga appointed to serve on the Merit Selection Panel.
Based on the Court's review of Chief Judge Altonaga's Administrative Orders, it appears that Mrs. Lazopoulos Friedman has served on the Merit Selection Panels for the last five Magistrate Judges in Miami as well as on the Merit Selection Panel for the Reappointment of another Magistrate Judge in Miami. Again, taking Defendant's argument to its logical conclusion, Defendant would require six of the currently sitting Magistrate Judges to disclose and potentially recuse every time that Mrs. Lazopoulos Friedman or Mr. Friedman appeared as counsel of record before them simply because she was a member of the Merit Selection Panel that ultimately led to their appointment.
Presumably then, these purported disclosure and recusal considerations would apply each time any member of the Merit Selection Panel (or their spouses) appeared before a Magistrate Judge who was appointed during that selection process. Such a requirement would deter any lawyer in our community from volunteering their time to serve on the Merit Selection Panel if their mere participation would deprive them of the opportunity to represent their clients and appear before the federal judiciary. Put simply, there is no requirement for this sort of disclosure and no reasonable, objective observer would find that the participation of a panel member in a case as a lawyer, much less their spouse, would create an appearance of bias or impartiality.
Finally, Defendant contends the undersigned should have disclosed her service on the Jewish American Heritage Month Committee on which Mrs. Lazopoulos Friedman and Mr. Burstyn also serve. However, the Court is not required to disclose every professional committee or bar organization in common with an attorney appearing before it, much less the spouse of an attorney appearing before the Court. The District Court has numerous committees in which both federal judges and members of the Bar serve and volunteer their time to serve the Court.
For context, the Jewish American Heritage Month Committee is a committee of 15 federal judges and 27 lawyers appointed by Chief Judge Altonaga that meets virtually a few times a year and once in person to plan a speaking event dedicated to honoring Jewish American Heritage Month. Members of the Bar would be deterred from participating in and volunteering their time on one of the District Court's committees alongside federal judges if that meant they could not appear before any judges on those committees (the Jewish American Heritage Month Committee alone has 15 federal judges on it). Likewise, judges would be deterred from participating in any committees if that meant they would have to recuse each time a lawyer on a common committee appears before him or her, regardless of whether the judge actually knows the lawyer or interacts with that lawyer on the committee…. No reasonable observer would believe that the undersigned could not be impartial or unbiased simply because of her common appointment to the Jewish American Heritage Month Committee with Mrs. Lazopoulos Friedman and Mr. Burstyn….
The post Magistrate Judge Declines to Recuse After Sanctioning Rabbi Shmuley Boteach for Violating Court Order in Anti-Semitism Lawsuit appeared first on Reason Magazine.