Appeals court won’t pardon judge’s French

A lawsuit against Shell Oil Co. is being revived, and the federal judge who cussed at the plaintiff’s attorney in court will not be hearing it.

A panel of the 8th U.S. Circuit Court of Appeals on Tuesday overturned Kansas City-based Senior District Judge Dean Whipple’s dismissal of the lawsuit, ordered him to remove himself from the case and called for the case to be reassigned.

The Charles Evans Whittaker Federal Courthouse in Kansas City. File photo by Amy Schmitz

“The parties in this case provoked the district court into making untempered comments, using profane language, and taking actions that created an appearance of partiality,” Judge Michael Melloy wrote in a majority opinion agreed to by Judge Bobby Shepherd. In the next paragraph, Melloy emphasized “that our decision rests on the appearance of partiality, not a finding of partiality.”

While the opinion was sympathetic in places toward Whipple, the appeals court judges found that Whipple overstepped his authority in dismissing the $28 million case with prejudice. Lawsuits dismissed with prejudice can’t be brought to court again.

Judge Raymond Gruender, the only Missouri-based judge on the three-judge panel, said in a dissenting opinion that neither Whipple’s recusal nor reassignment of the case was called for.

“Although I do not condone the district court’s language, its statements did not express such a high degree of favoritism or antagonism to make fair judgment impossible,” Gruender wrote.

Whipple, citing the federal judicial Code of Conduct, said he was prohibited from talking about the case.

Alan Barazi, the former operator of 29 Kansas City Shell stations, filed Sentis Group Inc. and Coral Group Inc. v. Shell Oil Co. et al in 2005 over expenses and reimbursement and the rent charged by Shell. Discovery in the case was contentious, extending to an allegation that the plaintiffs offered to pay a potential witness to conceal evidence from Shell.

The allegation was troubling, but there was no reliable evidence to support it, the majority opinion said.

A tussle over 58 documents culminated in a December 2006 discovery hearing at which David Harris, a Greensfelder Hemker & Gale attorney representing Shell, made a presentation in support of a motion for sanctions against the plaintiffs. At the hearing, Whipple sprinkled six epithets, including “goddamn” and “Jesus Christ,” in an exchange with plaintiffs’ attorney Frederick Starrett, of Lathrop & Gage.

“You go to the Eighth Circuit. They tell you to produce them, and you still goddamn don’t produce them. Now what the hell do you not understand?” Whipple said at the hearing, according to a transcript included in court records. “You must produce them. Jesus Christ, I don’t want any more ducking and weaving from you on those 58 documents.”

At the hearing, Whipple didn’t allow the plaintiffs to respond to the presentation, misconstrued his own discovery orders and dismissed Starrett’s attempt to explain the orders, the majority opinion said.

“This is not merely a case, then, where a court’s use of salty language should be overlooked,” Melloy wrote in the order.

The parties and lawyers in the case were not spared criticism in the majority opinion, which said neither party behaved as they should have during discovery.

“We do not intend to suggest through this opinion that we condone plaintiffs’ behavior or tactics. Also it seems clear that at some point in the proceedings, defendants’ goal shifted from conducting effective discovery to fanning the flames of the court’s frustration and building a case for sanctions,” the opinion said.

The judge who next hears the case should consider a range of sanctions and examine both parties’ actions, the opinion said.

Starrett said he was pleased the lawsuit was reversed and remanded, given “the consideration I felt it warranted.”

In an e-mail response to a reporter’s questions, a Shell spokeswoman said the company was disappointed in the decision.

“Shell abides by the requirements of the Petroleum Marketing Practices, state and local laws and is confident that will be validated in the next trial,” spokeswoman Karyn Leonardi-Cattolica said in the e-mail.

It took longer than normal for a decision to be reached in the case. In 2008, the median amount of time between a notice of appeal and disposition of a case in the circuit was 11.4 months, according to statistics from the Administrative Office of the U.S. Courts. It’s been 21 months since the notice of appeal was filed in the Shell case.