Motion to Disqualify Trial Judge

Jeffrey Baron’s Motion to Disqualify    Page 1 
 
IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF TEXAS 
DALLAS DIVISION 
 
            §    
NETSPHERE, INC.,        §  Civil Action No. 3-09CV0988-F 
MANILA INDUSTRIES, INC., and    § 
MUNISH KRISHAN,       § 
  Plaintiffs.         § 
            § 
            §   
v.            § 
            § 
JEFFREY BARON, and      §   
ONDOVA LIMITED COMPANY,    § 
Defendants.           § 
               
MOTION TO DISQUALIFY TRIAL JUDGE 
  Pursuant to 28 U.S.C. § 455, Jeffrey Baron hereby moves to disqualify the trial judge 
because  the  judge  has  personal  knowledge  of  disputed  evidentiary  facts  concerning  the 
proceeding and in support, states: 
I.  Introduction 
A.  Standard for Recusal 
The standard for recusal of a trial judge is set out in 28 U.S.C. § 455 which, in 
pertinent part, states: 
(a) Any justice, judge, or magistrate of the United States shall disqualify himself in 
any proceeding in which his impartiality might reasonably be questioned. 
(b) He shall also disqualify himself in the following circumstances: 
(1) Where he has a personal bias or prejudice concerning a party, or personal 
knowledge of disputed evidentiary facts concerning the proceeding.   
II.  Grounds for Recusal 
The specific grounds for recusal are: 
1.  The  trial  judge  has  personal  knowledge  of  disputed  evidentiary 
facts concerning the proceeding.  
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Jeffrey Baron’s Motion to Disqualify    Page 2 
 
III. Statement of Facts 
In  the  instant  case,  the  Court  must  rule  on  various  fee  applications  submitted  by  the 
Receiver.   From  the  inception  of  this  case,  Mr. Baron has  claimed  that  the  receivership was 
imposed as a result of misleading, fraudulent statements made by the Trustee and Receiver and 
that  the  receivership  was  improperly  maintained  by  the  Receiver  by  and  through  the  same 
deceptive,  fraudulent  statements.    The  Fifth  Circuit  has  now  settled  the  issue  of  whether  a 
receivership over Mr. Baron was authorized, and has vacated the receivership order.   
The Court entered the Order Granting Receivership at an ex parte, off-the-record hearing 
with the Trustee, Receiver, and other individuals.  The nature, scope and details of the hearing 
are unknown to Mr. Baron and have been cloaked in secrecy. The very existence of the secret 
off-the-record hearing has been disputed.  However, testimony in the Ondova bankruptcy case 
demonstrate that the trial court was misled about the factual, as well as the legal justification for 
imposing a receivership over Jeffrey Baron and other entities. 
This  Court  entered  an  ex  parte  order  and  has  entered  findings  reflecting  the  Court’s 
understanding that Mr. Baron disobeyed the Court’s mediation order, and caused the mediation 
to fail.  This fact has now been repudiated by the Trustee in sworn testimony.  Mr. Sherman has 
now admitted in sworn testimony that contrary to the allegations against Mr. Baron, it was the 
attorney claimants that refused to mediate. 
The payment of some or any receiver’s fees has been allowed by the Fifth Circuit based 
on  equitable  principles.    Accordingly,  equitable  considerations  and  defenses  are  at  issue  in 
determining the amount, if any, of receiver fees is that is equitable.   As a matter of established 
precedent, "he who comes into equity must come with clean hands”. Manufacturers' Finance Co. 
v. McKey,  294 U.S. 442,  451  (1935).    Where a  party acts  with unclean hands, they are not 
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Jeffrey Baron’s Motion to Disqualify    Page 3 
 
entitled  to  equitable  relief.  Id.      Relief  procured  by  material  misrepresentation  may  not  be 
sustained. Coastal Corp. v. Texas Eastern Corp., 869 F.2d 817, 818 (5th Cir. 1989). 
Therefore, a central and preliminary evidentiary issue in this case is what, specifically,  
Mr. Sherman and Mr. Vogel, and their counsel,  represented to this Court in the off-the-record ex 
parte hearing held November 24, 2010.  If the representations of Mr. Sherman and/or Vogel are 
shown to be material misrepresentations, the doctrine of unclean hands is established.  
IV. The Trial Judge Is the only Independent Witness to the Ex Parte Off-
the Record Hearing and Representations Made at that Hearing. 
 
    Corky  Sherman’s  revelation  that  Jeff  Baron  did  not  breach  any  obligation  owed  to  the 
trustee  under  the  Global  Settlement  Agreement  and  that  it  was  the  attorneys  who  refused  to 
mediate the attorney fee claims, support Mr. Baron’s contentions that the Trustee and Receiver 
acted in bad faith by seeking the imposition of, or continuing the receivership in bad faith, and 
through  fraud  and  misrepresentation.    Accordingly,  the  statements  actually  made  to  the  trial 
judge can themselves establish fraud, bad faith, and unclean hands.  
The  trial  judge  in  this  case  has  personal  knowledge  of  what  was  represented  at  the 
disputed off-the-record ex parte hearing and is, moreover, the only independent witness of those 
evidentiary facts.  Disqualification is therefore mandated.  Mr. Baron has the Constitutional right 
to subpoena witnesses, including the trial judge as the only independent witness with personal 
knowledge of the representations made in the off-the-record ex parte proceedings.  See Amend. 
5, U.S Const. 
In Matter of Faulkner, 856 F.2d 716 (5
th
 Cir. 1988), the Fifth Circuit granted a writ of 
mandamus  directing  a  trial  judge  to  disqualify himself  where,  as  in  this  case,  the  trial  court’s 
had "personal knowledge of disputed evidentiary facts concerning the proceeding". 
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Jeffrey Baron’s Motion to Disqualify    Page 4 
 
A.  The Facts In the Instant Case Mandate Recusal. 
In the instant case, the Fifth Circuit Court of Appeals vacated an order of receivership 
granted at the request of the Trustee and other interested parties in an off-the-record ex parte 
hearing.    The  details  of  this  off-the-record  ex  parte  hearing  are  unknown  to  Mr.  Baron,  but 
obviously persuaded this Court to grant an ex parte order. 
Because the trial judge clearly has personal knowledge of the disputed evidentiary facts 
concerning imposition of the receivership, and specifically as to facts bearing on issues relating 
to the  Trustee  and Receiver’s good faith  (or  lack thereof) and  clean  hands (or lack  thereof) in 
seeking the receivership, disqualification is mandated under 28 U.S.C. § 455. 
Mr. Baron has no independent source of evidence other than the trial judge.  The hearing 
was held in secret, off-the-record, and ex parte.  Proof of the statements made to the trial judge at 
that  hearing  are  key  operative  evidentiary  facts  at  dispute  in  relationship  to  the  issue  of  the 
equitable amount of fees to allow the receiver, if any. 
WHEREFORE,  Jeffrey  Baron  respectfully  requests  the  Court  enter  an  order  of 
disqualification and request reassignment of the case to a different district court judge. 
            Very respectfully, 
  /s/ Stephen R. Cochell 
Stephen R. Cochell 
The Cochell Law Firm, P.C. 
Texas Bar No. 24044255 
7026 Old Katy Rd., Ste 259 
Houston, Texas 77096 
(713)980-8796 (phone) 
(713)980-1179 (facsimile) 
srcochell@cochellfirm.com 
 
 
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Jeffrey Baron’s Motion to Disqualify    Page 5 
 
CERTIFICATE OF CONFERENCE 
 
  This is to certify that, on December 30, 2012, counsel for Jeffrey Baron contacted 
counsel for the Receiver and Trustee and requested their concurrence in this motion. The 
Receiver responded by email stating his opposition to the motion. 
 
_/s/Stephen R. Cochell 
          Stephen R. Cochell 
 
 
 
CERTIFICATE OF GOOD FAITH FILING 
 
  This is to certify that counsel has reviewed the Motion for Disqualification of Trial Judge 
and believes that the motion is brought in good faith based on Supreme Court and other pertinent 
case law, as set out herein. 
 
                /s/Stephen R. Cochell 
                Stephen R. Cochell 
 
         
CERTIFICATE OF SERVICE 
This is to certify that, on December 30, 2012, a copy of this Motion was served on all 
counsel through the Court’s ECF system.   
              
/s/ Stephen R. Cochell 
Stephen R. Cochell 
 
 
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