United States District Court, Southern District of New York
April 6, 1990
JOINT COUNCIL 73, ET AL., PLAINTIFFS,
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, WAREHOUSEMEN AND HELPERS OF AMERICA, AND CHARLES CARBERRY, DEFENDANTS.
The opinion of the court was delivered by: Edelstein, District Judge:
MEMORANDUM & ORDER
On April 2, 1990, the defendant Carberry moved this Court to
dismiss this suit, a lawsuit collateral to the action
United States v. International Brotherhood of Teamsters, et
al., 88 Civ. 4486 (DNE) (the "underlying action"). Plaintiffs
opposed defendants motion, and additionally cross-moved seeking
recusal from further consideration of the instant case. This
memorandum arises out of that cross-motion for recusal. For the
reasons stated below, this cross-motion is denied.
A voluntary settlement in the underlying action was entered
on March 14, 1989, (the "Consent Decree") providing for the
creation of a remedial scheme to effectuate electoral and
disciplinary reform in the International Brotherhood of
Teamsters (the "IBT"). The Consent Decree called for the
appointment of three Court Officers to oversee the remedial
changes: an Independent Administrator, an Election Officer,
and an Investigations Officer.
This case was originally filed by plaintiffs Joint Council
73 and Local 641, two New Jersey entities of the IBT, in the
United States District Court for the District of New Jersey on
December 8, 1989 after those entities were served with
discovery requests made on December 4, 1989 by defendant
Carberry, the Investigations Officer. In response to this and
other lawsuits that sought to litigate issues pertaining to
the Consent Decree, this Court preliminarily enjoined
prosecution of this action in New Jersey and all other such
actions pursuant to its authority under the All Writs Act.
On January 17, 1990, this Court entered a permanent
injunction barring lawsuits seeking to litigate issues
relating to the implementation of the Consent Decree in any
forum other than this Court (the "January 17, 1990 opinion").
See 728 F. Supp. 1032, 1035-48 (S.D.N.Y. 1990). In addition to
the injunction, the January 17, 1990 opinion conclusively found
that subordinate entities of the IBT, such as Joint Council 73
and Local 641, were bound by the Consent Decree. See id. at
On December 14, 1989, the Investigations Officer moved the
New Jersey court to transfer this case to the Southern
District of New York. On December 20, 1989, Judge Ackerman in
New Jersey stayed consideration of that transfer motion
pending this Court's resolution of the injunction. After the
entry of the January 17, 1990 opinion, the Investigations
Officer notified the New Jersey court of the injunction issued
by this Court. The plaintiffs further objected to transferring
this case to the Southern District of New York by separate
letters to Judge Ackerman on January 22, 1990. On February 15,
1990, the court in New Jersey transferred this case to the
Southern District, as a related case to the underlying action.
On April 2, 1990, defendant Investigations Officer moved
this Court to dismiss this action. Plaintiffs opposed the
motion to dismiss, and cross-moved seeking recusal pursuant to
28 U.S.C. § 455(a). For the purposes of this memorandum, only
the cross-motion for recusal will be considered, and with no
determination on the ultimate merits of plaintiff's suit.
II. The Recusal Motion
In this instance, plaintiffs argue that they cannot receive
a fair hearing on their claims since in prior opinions
regarding the underlying case, rulings they perceive as
adverse to their suit have been made. Plaintiffs seek recusal
pursuant to the recusal statute located at 28 U.S.C. § 455(a).
That statute provides as follows:
Any justice, judge, or magistrate of the United
States shall disqualify himself in any proceeding
in which his impartiality might reasonably be
In particular, the plaintiffs argue for recusal based upon (1)
two facts from the January 17, 1990 opinion which they
dispute, claim were not in the record, and therefore arrived
at extrajudicially, see 728 F. Supp. at 1054; (2) a Memorandum
and Order dated November 2, 1989 (the "November 2, 1989
Opinion"), 723 F. Supp. 163 (S.D.N.Y. 1989), where this Court
assertedly demonstrated its bias against any and all IBT
subordinate entities challenging the Consent Decree, see id. at
At issue in this motion is whether the previous rulings by
this Court cited by plaintiffs have produced the bent of mind
necessary to warrant recusal in this related case. In this
circuit, recusal under § 455(a) is appropriate when "a
reasonable person knowing and understanding all the relevant
facts would recuse the judge." SEC v. Drexel Burnham, Lambert,
Inc., 861 F.2d 1307, 1313 (2d Cir. 1988). The Drexel Court
stated that "the test to be applied is an objective one which
assumes that a reasonable person knows and understands all
the relevant facts." Id. (emphasis supplied), citing Pepsico v.
McMillen, 764 F.2d 458, 460 (7th Cir. 1985).
Recusal under § 455(a) is not appropriate if based on
in-court rulings. In re IBM, 618 F.2d 923, 929 (2d Cir. 1980).
The plaintiffs have raised no objections to impartiality under
an "appearance of justice" theory. Id. Instead, plaintiffs'
assertions are based on what they perceive to be the adverse
nature of the November 2, 1989 and January 17, 1990 rulings.
But in this circuit, "[n]othing of this kind, what the judge
has learned from or done in the proceedings before him, is any
basis for disqualification; to be sufficient for
disqualification the alleged bias or prejudice must be from an
extrajudicial source." King v. United States, 576 F.2d 432, 437
(2d Cir. 1978).
To be extrajudicial, the prejudice "must arise by virtue of
some factor which creates partiality arising outside of the
events which occur in the trial itself." In re IBM, supra, 618
F.2d at 628. In this instance that scope would include all of
the events surrounding the entire IBT litigation. Further, "the
alleged bias and prejudice to be disqualifying must stem from
an extrajudicial source and result in an opinion on the merits
on some basis other than what the judge learned from his
participation in the case." Id., quoting United States v.
Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16
L.Ed.2d 778 (1966).
Plaintiffs have not shown that either of the two facts that
they identified and disputed were extrajudicial to the entire
IBT proceedings. Further, plaintiffs offer no more than a
conclusory reading of the November 2, 1989 opinion to support
their contention of general bias against them in this case.
Plaintiffs nowhere allege that impartiality stems from
personal animus, unreported relationships, or any other
improper motive. While plaintiffs may dispute findings of fact
or conclusions of law or dicta in other rulings of this Court,
such opposition does not warrant recusal. Since both the
January 17, 1990 opinion, and the November 2, 1989 opinion are
currently being appealed, "if any legal or factual error has
been committed it can be dealt with on [ ] appeal." In re IBM,
supra, 618 F.2d at 930. Indeed, "[the recusal statute] was
never intended to enable a litigant to oust a judge for adverse
rulings made, for such rulings are reviewable otherwise . . ."
Berger v. United States, 255 U.S. 22, 31, 41 S.Ct. 230, 232, 65
L.Ed. 481 (1921).
In addition, plaintiffs have made no effort to seek recusal
in a timely manner, an implied requirement of § 455(a). See In
re IBM, supra, 618 F. Supp. at 932; United States v. Daley,
564 F.2d 645, 651 (2d Cir. 1977), cert. denied 435 U.S. 933, 98
S.Ct. 1508, 55 L.Ed.2d 530 (1978). This case was transferred
from New Jersey on February 15, 1990. Plaintiffs made no effort
to seek recusal at the time of transfer, or even at a later
pre-trial conference held on March 8, 1990. Instead, plaintiffs
waited until the defendant's motion to dismiss was filed.
The plaintiff's contentions do not indicate that this Court
is in any way unprepared to give full and fair consideration
to their claims.
Plaintiffs' cross-motion for recusal is denied. This
determination involves no consideration of the defendant's
motion to dismiss.
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