United States District Court, Western District of New York
January 26, 1990
JOSEPH R. PERSON, PLAINTIFF,
GENERAL MOTORS CORPORATION AND SAGINAW DIVISION GENERAL MOTORS CORPORATION, DEFENDANTS.
The opinion of the court was delivered by: Curtin, District Judge.
On June 26, 1989, the defendants removed this case from New
York State Supreme Court, Erie County, to this court pursuant to
28 U.S.C. § 1441. See Item 1. Accompanying the removal petition
was a letter from the defendants' attorney, Arnold Weiss, Esq.,
to the Clerk of the Court requesting that the case be assigned to
a judge other than me. After the case was assigned to me through
the standard random-assignment process, Mr. Weiss wrote to me and
requested that I recuse myself. See Item 5. In a letter dated
July 10, 1989, I attempted to assure counsel that I could proceed
reasonably and fairly in the case, but told him that he should
bring a formal motion for recusal if he felt otherwise. On July
21, 1989, counsel filed the motion for recusal that is now
pending before the court. See Item 4. Although Mr. Weiss cites
no statutory authority, the court will assume that the basis for
the motion is 28 U.S.C. § 144, 455(a), and 455(b)(1).
In support of the motion, counsel appended only his own
affidavit. In the affidavit, he makes several allegations in
support of his argument that I should recuse myself from the
present case as well as from "all other matters in which deponent
appears as counsel." Item 4 at ¶ 20. Generally, he alleges that I
must recuse myself because: 1) of actions that either I or my
staff took, as well as future actions counsel intends to take, in
connection with another case, Markel, et al. v. Scovill
Manufacturing Company, et al., CIV-78-269A, id. at ¶¶ 2-3,
6-14;*fn1 2) the pendency of the appeal in Markel "caused
considerable consternation" among the judges of the United States
Court of Appeals for the Second Circuit and "contributed
materially to [my] sudden announcement . . . that [I] was
relinquishing [my] position as Chief Judge for the U.S. District
Court for the Western District of New York, and [my] subsequent
decision . . . to accept Senior Judge status," id. at ¶ 16; 3)
I have given "physical evidence" of my hostility toward him both
in conversations that I have had with other attorneys and jurists
and in my "obvious and undisguised anger, red-faced grimaces,
criticisms, impatience and hostile reaction to deponent during
Court appearances," id. at ¶ 16; 4) I supposedly awarded
sanctions against deponent unjustly in another case, Greater
Buffalo Press, Inc., et al. v. Federal Reserve Bank of New York,
CIV-78-27C, [___ F.R.D. ___] id. at ¶ 17; and 5) I supposedly
made public comments and took public actions that were "adverse,"
and that "caused the Bar and Bench of the U.S. District Court for
the Western District of New York and at the Supreme Court, to be
fully aware of [my] unjustified personal dislike of deponent, and
of [my] pervasive hostility to deponent," id. at ¶ 18.
Counsel argues that the foregoing establishes such bias and
hostility that I should recuse myself from the present case as
well as from any other cases in which he appears. After giving
counsel's arguments due consideration, I have concluded that the
motion should be denied.
28 U.S.C. § 144 provides in relevant part:
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. . . .
The affidavit shall state the facts and the reasons
for the belief that bias or prejudice exists. . . .
28 U.S.C. § 455 provides in relevant part:
(a) Any justice, judge, or magistrate of the United
States shall disqualify himself in any proceeding in
which his impartiality might reasonably be
(b) He shall also disqualify himself in the
(1) Where he has a personal bias or prejudice
concerning a party. . . .
Sections 144 and 455(b)(1) should be read in pari materia, that
is, they should be construed together. Apple v. Jewish Hospital
and Medical Center, 829 F.2d 326
, 333 (2d Cir. 1987). "The
analysis is the same under both sections, that is, it looks to
extrajudicial conduct as the basis for making such a
determination, not conduct which arises in a judicial context."
Id. See also In re Drexel Burnham Lambert, Inc., 861 F.2d 1307
1314 (2d Cir. 1988), reh'g denied, 869 F.2d 116
cert. denied, ___ U.S. ___, 109 S.Ct. 2458
, 104 L.Ed.2d 1012
(1989); In re International Business Machines Corp.,
618 F.2d 923
, 928 (2d Cir. 1980), later proceeding, 687 F.2d 591
Cir. 1982); Davis v. Board of School Commissioners of Mobile
County, 517 F.2d 1044
, 1052 (5th Cir. 1975), cert. denied,
425 U.S. 944
, 96 S.Ct. 1685
, 48 L.Ed.2d 188 (1976). Furthermore,
"mere allegation that conduct is extrajudicial does not make it
so. Extrajudicial conduct is not conduct arising geographically
outside of the courtroom. Rather, it is conduct which arises
from something outside of the events of the [courtroom
proceeding] itself." Allen-Myland, Inc. v. International
Business Machines Corp., 709 F. Supp. 491, 494 (S.D.N.Y. 1989)
The standard for recusal under both Section 144 and Section 455
is whether a reasonable person, knowing all the facts, would
conclude that the court's impartiality might reasonably be
questioned. Apple v. Jewish Hospital and Medical Center, 829
F.2d at 333 (construing §§ 144, 455(b)(1)); In re Drexel Burnham
Lambert, Inc., 861 F.2d at 1313 (construing § 455(a)). See also
Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847,
108 S.Ct. 2194, 2201 n. 7, 100 L.Ed.2d 855 (1988). In general,
unsubstantiated suggestions of personal bias or prejudice do not
mandate recusal. See Willner v. University of Kansas,
848 F.2d 1023, 1027 (10th Cir. 1988), cert. denied, ___ U.S. ___, 109
S.Ct. 840, 102 L.Ed.2d 972 (1989).
Counsel's application is insufficient for several reasons.
First, he attempts in his affidavit to incorporate by reference
the records of two other cases, see Item 4 at ¶¶ 2, 17, a
practice that has no place in a motion for recusal. Hinman v.
Rogers, 831 F.2d 937, 939 (10th Cir. 1987). If counsel believes
that particular circumstances involving those cases are relevant
to the present motion, he should have stated them with
particularity. Id. In any event, prior adverse rulings are not
sufficient cause for recusal. In re International Business
Machines Corp., 618 F.2d at
929-30; Willner v. University of Kansas, 848 F.2d at 1028;
United States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986). If
counsel feels that my rulings in any other case were incorrect,
he can appeal those rulings. See Ex parte American Steel Barrel
Co., 230 U.S. 35, 44, 33 S.Ct. 1007, 1010, 57 L.Ed. 1379 (1913)
(Motions for recusal were "never intended to enable a
discontented litigant to oust a judge for adverse rulings made,
for such rulings are reviewable otherwise. . . .") (construing
predecessor statute), quoted in In re International Business
Machines Corp., 618 F.2d at 929. Moreover, to the extent that
any of counsel's allegations regarding Markel and Greater
Buffalo Press can be construed as referring to extrajudicial
conduct, they are so thoroughly vague and unsubstantiated that
they are virtually inconsequential for purposes of the present
motion. Maier v. Orr, 758 F.2d 1578, 1583 (Fed.Cir. 1985).
Second, the fact that I recused myself from Markel does not
mandate that I must recuse myself from the present case. My
decision to recuse myself was neither an acknowledgment of the
legal sufficiency of counsel's motion in that case, nor a
suggestion that I would not be able to act without bias or
prejudice in future cases involving him. See, e.g., Wolfson v.
Palmieri, 396 F.2d 121, 125 (2d Cir. 1968) ("[T]here are
circumstances in which a judge may wish to recuse himself
although a legally sufficient affidavit of bias and prejudice
could not be presented against him.").
Third, the allegations contained in counsel's affidavit are
either wholly conclusory or totally without factual support.*fn2
Counsel's suggestion that the appeal in Markel contributed in
any way to my decisions to step down as Chief Judge and to take
senior status is so artificial that it does not merit a response.
In addition, recusal is not mandated by counsel's vague and
unsupported allegations regarding unspecified hearsay statements.
Willner v. University of Kansas, 848 F.2d at 1027. In this
regard, I note also that counsel provides no clue as to the
nature of the "physical evidence" that supposedly manifested
itself in some of these unenumerated hearsay conversations. And
even assuming arguendo that in the past I have treated counsel
brusquely in court, that is insufficient to compel recusal. See
In re International Business Machines Corp., 618 F.2d at 930-31;
Rosen v. Sugarman, 357 F.2d 794, 799-800 (2d Cir. 1966); In re
Cooper, 821 F.2d 833, 838-39, 841, 843 (1st Cir. 1987). As noted
by Judge Frank in In re J.P. Linahan, Inc., 138 F.2d 650 (2d
"[A judge] must . . . shrewdly observe the stategems
of the opposing lawyers, perceive their efforts to
sway him by appeals to his predilections. He must
cannily penetrate through the surface of their
remarks to their real purposes and motives. He has an
official obligation to become prejudiced in that
sense. Impartiality is not gullibility.
Disinterestedness does not mean child-like innocence.
If the judge did not form judgments of the actors in
those court-house dramas called trials, he could
never render decisions."
Id. at 654, quoted in In re International Business Machines
Corp., 618 F.2d at 930. Counsel's allegations are generally so
vague, conclusory, and unsubstantiated that they are utterly
inadequate to require recusal. As one court has put it:
"Conclusory statements are of no effect. Nor are counsel's
unsupported beliefs and assumptions. Frivolous and improperly
based suggestions that a judge recuse should be firmly declined."
Maier v. Orr, 758 F.2d at 1583.
It is evident that the essence of counsel's arguments is that I
harbor personal animosity toward him. It is thus unsurprising
that, with regard to all of counsel's allegations, he fails to
explain adequately how his clients in the present case supposedly
will be harmed unless I
recuse myself. But even where personal animosity exists between a
judge and an attorney, recusal is not compelled unless a party is
thereby adversely affected. "[B]ias against a lawyer, even if
found to exist, without more is not bias against his client." In
re Drexel Burnham Lambert, Inc., 861 F.2d at 1314. See also
Davis v. Board of School Commissioners of Mobile County, 517
F.2d at 1050-52. Significantly, counsel alleges merely that
"there is possible prejudice to any client that [he] may
represent, or possible reverse bias or harm to opposing
counsel," Item 4 at ¶ 19 (emphasis added),*fn3 thereby exposing
the thoroughly speculative nature of his claims.
Moreover, this latter claim further exposes the hollow
character of counsel's arguments. Counsel in one breath argues
that my alleged hostility toward him is so great that I am apt to
rule against him, and in the next breath argues that that
hostility also raises a danger of possible "reverse" bias or harm
to opposing counsel due to my anticipated attempts to cover up
that hostility. Thus, according to counsel, if I rule against
him, I am biased; if I rule for him, I am also biased. Such
circuitous and convoluted reasoning simply does not suffice.
Either I am inclined to rule against him or I am inclined to rule
for him. He cannot have it both ways. In his transparent attempt
to cover all bases, counsel has thus revealed the vacuous nature
of his motion. Moreover, the fallacy of his argument underscores
the conspicuously speculative nature of his claims.*fn4
I do not understand why counsel has made accusations as
unfounded as those contained in his motion for recusal, and I can
do nothing more than to give my assurance that in this case, as
in every case pending before me, I will, to the utmost of my
ability, preside fairly and impartially. I harbor no personal
animosity toward counsel. If I did, and if I felt those feelings
could affect my ability to act fairly and impartially, I would
recuse myself without hesitation. But conclusory and unfounded
allegations that a judge is biased or prejudiced against an
attorney are insufficient to require recusal.
I fully recognize that "justice must satisfy the appearance of
justice," Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct.
11, 13, 99 L.Ed. 11 (1954), and that, consequently, the absence
of actual bias or prejudice is not enough. See United States v.
Pepper & Potter, Inc., 677 F. Supp. 123, 126 (E.D.N.Y. 1988). I
thus am ever-mindful of my obligation to recuse myself not only
from matters in which I might harbor personal bias or prejudice,
but also from matters in which my impartiality might reasonably
be questioned. But I am equally mindful of my responsibility not
to disqualify myself "solely by reason of the personal burdens a
case would impose or because [I] would prefer to be trying some
other kind of case." Id. at 126.*fn5 In the words of the
Second Circuit: "A judge is as much obliged not to recuse himself
when it is not called for as he is obliged to when it is." In re
Drexel Burnham Lambert, Inc., 861 F.2d at 1312. See also
National Auto Brokers Corp. v. General Motors Corp.,
572 F.2d 953, 958 (2d Cir. 1978), cert. denied, 439 U.S. 1072, 99 S.Ct.
844, 59 L.Ed.2d 38 (1979).
The plain fact is that counsel's allegations are
groundless.*fn6 Moreover, and more
importantly for purposes of the present motion, they are entirely
too speculative to lead a reasonable person, knowing all the
facts, to conclude that my impartiality might reasonably be
To be sure, the easiest course would be simply to recuse myself
from this case and from all others involving Mr. Weiss. But an
attorney cannot be allowed to pick and to choose which judge
shall hear his or her cases simply by making unfounded and
conclusory accusations of bias or prejudice. See Hinman v.
Rogers, 831 F.2d at 939-40. "Litigants are entitled to an
unbiased judge; not to a judge of their choosing." In re Drexel
Burnham Lambert, Inc., 861 F.2d at 1312.
In sum, I am fully confident that I can and will preside over
this case without bias or prejudice. I am also convinced that a
reasonable person, knowing all the facts, would conclude that my
impartiality cannot reasonably be questioned. The motion for
recusal is thus denied.
The court shall meet with the parties on March 1, 1990, at 9:00
a.m. to set a discovery schedule.