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March 21, 1983

STACY DEE, Plaintiff,

Cannella, D.J.

The opinion of the court was delivered by: CANNELLA



 Plaintiff's motion for a new trial, 28 U.S. C. § 455(a) and defendants' cross-motion for an award of attorney's fees, 42 U.S.C. § 2000e-5, are denied.


 In an Opinion dated September 10, 1982, the Court found that plaintiff had not established her claim that she was unlawfully terminated by defendant Institutional Networks Corporation ["Instinet"] because of her sex. The Court directed the parties to submit memoranda and appropriate affidavits on the question of defendants' application for attorney's fees. In opposition to defendants' application, plaintiff's new counsel moves first, for recusal and a new trial, contending that several actions taken by plaintiff's former counsel unduly prejudiced the Court, thereby making a fair trial for plaintiff impossible; and second, if a new trial is not granted, plaintiff requests that the Court recuse itself from deciding defendants' application for attorney's fees. Alternatively, plaintiff argues that her claim was not frivolous, baseless or meritless, thus making an award of attorney's fees inappropriate.

 Plaintiff asserts that the Court's impartiality can reasonably be questioned because on more than one occasion, plaintiff's former counsel communicated to the Court that he recommended to plaintiff that she voluntarily discontinue her action. *fn1" Plaintiff argues that several statements and rulings made by the Court during the course of trial evidence bias and a predisposition by the Court to rule against plaintiff. For example, plaintiff contends that: (1) the Court's statement made at the outset of trial warning plaintiff about the possibility of an award of attorney's fees against her, (2) the Court's use of William J. Ehrhardt's and Gail Sheeger's deposition testimony and (3) the Court's limiting the cross-examination of defendant Jerome M. Pustilnik clearly indicate that plaintiff's former counsel's disclosures infected the Court's thinking with respect to the merits of plaintiff's claims.

 In response, defendants argue that the Court acted properly in making the aforementioned rulings. In addition, defendants claim that plaintiff failed to establish an "extrajudicial" source for the Court's alleged bias. Finally, defendants assert that information disclosed to plaintiff soon after she commenced this action established that her claims were meritless and that plaintiff, in bad faith, persisted in prosecuting her suit. Relying on Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 54 L. Ed. 2d 648, 98 S. Ct. 694 (1978) [" Christiansburg "], defendants, therefore, seek an award of attorney's fees. Because of the nature of her claims, the Court must address plaintiff's recusal motion before turning to the merits of defendants' fee application.


 To grant plaintiff's recusal motion, *fn2" the Court must be convinced that "facts have been presented, assuming their truth, that would lead a reasonable person to infer that bias or prejudice existed, thereby foreclosing impartiality of judgment." Markus v. United States, 545 F. Supp. 998, 1000 (S.D.N.Y. 1982). Moreover, bias requiring recusal must be extrajudicial in nature and not based on in-court rulings. In re International Business Machines Corp., 618 F.2d 923, 929 (2d Cir. 1980); see also Ma v. Community Bank, 686 F.2d 459 (7th Cir. 1982). There is a sound reason for this rule. If a judge's impartiality could be called into question based on judicial rulings made during the course of trial, then "there would be almost no limit to disqualification motions and the way would be opened for 'judge shopping,' a practice which has been for the most part universally condemned. Certainly every ruling on an arguable point during a proceeding may give 'the appearance of' partiality, in the broadest sense of those terms, to one party or the other." Lazofsky v. Sommerset Bus Co., 389 F. Supp. 1041, 1044 (E.D.N.Y. 1972).

 Plaintiff contends that the Court's bias is extrajudicial because her former counsel made known to the Court facts inadmissible at trial. Specifically, plaintiff claims that her former counsel disclosed settlement negotiations and privileged communications between attorney and client to the Court.

 While the Court agrees with plaintiff that the information in her former counsel's letters and statements to the Court would not have been admissible for the truth thereof, the Court cannot agree that these statements were "extrajudicial." See United States v. Coven, 662 F.2d 162, 168-69 (2d Cir. 1981); United States v. King, 576 F.2d 432, 437 (2d Cir. 1978). To be extrajudicial, the alleged bias must result from the personal experiences of the judge. See In re International Business Machines Corp., supra, 618 F.2d at 929. When a trial judge personally vouches for the credibility of a witness, Roberts v. Bailar, 625 F.2d 125 (6th Cir. 1980), or states that he would not believe any witnesses called by a particular party, Nicodemus v. Chrysler Corp., 596 F.2d 152 (6th Cir. 1979), recusal is appropriate. In the instant action, however, all the facts that form the basis of plaintiff's recusal motion became known to the Court while it was supervising pretrial discovery. See Savitz v. G.D. Searle & Co., 94 F.R.D. 669, 669-70 & n.1 (E.D.N.Y. 1982). Carrying plaintiff's motion to its logical extreme, any time a judge in a nonjury case ruled on the admissibility of alleged settlement negotiations, he would be subject to a recusal motion. A result which the Court finds anomalous.

 All of the Court's rulings were made on the basis of the evidence adduced at trial and not because of some bias or prejudice. Plaintiff's argument that the Court credited the testimony of Pustilnik because of some inherent bias against plaintiff is erroneous for several reasons. First, while the Court recognizes that Pustilnik is interested in the outcome of this litigation, plaintiff's interest cannot be disregarded. Second, the Court after observing the demeanor of both plaintiff and Pustilnik on the witness stand concluded that for the most part, Pustilnik was more believable than plaintiff. On several occasions, plaintiff testified in an evasive, hostile manner; thus, leaving the Court with an adverse impression as to her credibility. *fn3" Although the Court would not characterize Pustilnik as a model witness, his testimony on the whole was more believable than plaintiff's. Merely because the Court credited Pustilnik's testimony does not mean that the Court was biased against plaintiff. As Judge Frank aptly stated: "Impartiality is not gullibility. Disinterestedness does not mean child-like innocence. If the judge did not form judgments of the actors in those courthouse dramas called trials he could never render decisions." In re J.P. Linahan, Inc., 138 F.2d 650, 654 (2d Cir. 1943).

 With respect to her claim that statements made by the Court require recusal, plaintiff has failed to present sufficient facts that would allow a reasonable person to infer bias or prejudice. After reading defendants' trial memorandum before trial, it became clear to the Court that, if successful, defendants would vigorously pursue their claim for attorney's fees. Thus, at the outset of trial, the Court wanted to ensure that plaintiff was aware that she faced the possibility of an award against her of approximately $11,000. The Court raised this question not because it was biased against her, but rather to be sure that plaintiff was cognizant of all the possible consequences of trial. Indeed, other statements made during the course of trial and not addressed by plaintiff, further establish that the Court was not predisposed to rule against plaintiff. *fn4"

 With respect to the Court's use of the deposition testimony of Sheeger and Ehrhardt, neither of these rulings require recusal. See United States v. Grinnell Corp., 384 U.S. 563, 583, 16 L. Ed. 2d 778, 86 S. Ct. 1698 (1966). First, plaintiff's claim that the Court improperly relied on Ehrhardt's deposition is wrong. The portion of Ehrhardt's deposition to which the Court referred in its Opinion was read into the record by plaintiff's former counsel during his cross-examination of Pustilnik. *fn5" Second, defendants' use of Sheeger's deposition was proper. The Federal Rules of Civil Procedure clearly permit the use of deposition testimony when a "witness is unable to attend or testify [at trial] because of age, illness, infirmity, or imprisonment." Fed. R. Civ. P. 32(a) (3) (C). Thus, when it was informed by defendants' counsel that Sheeger was unavailable because she had just given birth, the Court decided to admit Sheeger's deposition. The Court's decision to allow defendants and plaintiff to use Sheeger's deposition was reinforced by the fact that both sides had ample opportunity to question Sheeger. Similarly, the Court's decision to credit this testimony was not the result of bias. After Sheeger's deposition was read, plaintiff took the stand attempting to refute Sheeger's testimony that she found it difficult to work with plaintiff. Plaintiff's testimony in this area, was clearly ...

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