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PERSON v. GENERAL MOTORS CORP.

January 26, 1990

JOSEPH R. PERSON, PLAINTIFF,
v.
GENERAL MOTORS CORPORATION AND SAGINAW DIVISION GENERAL MOTORS CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Curtin, District Judge.

BACKGROUND

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, et al., 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.

DISCUSSION

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
  questioned.
    (b) He shall also disqualify himself in the
  following circumstances:
      (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 (2d Cir.), 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 (2d 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) (emphasis supplied).

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 ...


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