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FARKAS v. ELLIS

August 2, 1991

THOMAS FARKAS, MICHAEL MAK, PETE MAK, THOMAS MEDORA, JOHN QUERIM, RAFAEL ROSADO AND JOHN TOMA, PLAINTIFFS,
v.
WILLIAM ELLIS, DEFENDANT.



The opinion of the court was delivered by: William C. Conner, District Judge.

OPINION AND ORDER

This action is presently before the Court on plaintiffs' motion for recusal and replacement of Judge William C. Conner. For the reasons stated hereinafter, the motion is denied.

DISCUSSION

Allegations of Bias and Prejudice

A party may move that a judge disqualify himself pursuant to 28 U.S.C. § 144, 455. Section 144 requires that the affidavit in support of the motion be "sufficient" and timely. This Court does not question the timeliness of plaintiff's affidavit and motion. The requirement of legal sufficiency has been interpreted to mean a judge must rule whether the reasons and facts stated in the affidavit "give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment." Berger v. United States, 255 U.S. 22, 33-34, 41 S.Ct. 230, 233, 65 L.Ed. 481 (1921); United States v. International Business Machines Corp., 475 F. Supp. 1372, 1379 (S.D.N.Y. 1979), aff'd 618 F.2d 923 (2d Cir. 1980) (hereafter "IBM"). The affidavit must "show a true personal bias, and must allege specific facts and not mere conclusions or generalities." Brotherhood of Locomotive Firemen and Enginemen v. Bangor and Aroostook R. Co., 380 F.2d 570, 576 (D.C.Cir.), cert. denied, 389 U.S. 327, 88 S.Ct. 437, 19 L.Ed.2d 560 (1967). Moreover, the judge is presumed to be impartial, Wolfson v. Palmieri, 396 F.2d 121, 126 (2d Cir. 1968), and a substantial burden is imposed on the affiant to demonstrate that such is not the case.

Under 28 U.S.C. § 144, the court cannot inquire into the truth of the matters alleged but must accept them as true for the purpose of ruling upon their legal sufficiency, however unfounded they may be in fact. Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921). This statutory obligation, however, does not preclude the court from putting the facts alleged into their proper context and examining the surrounding circumstances. Rosen v. Sugarman, 357 F.2d 794 (2d Cir. 1966); IBM, 475 F. Supp. at 1379-80.

The allegations set forth in plaintiffs' affidavit are as follows:

  1. Judge Conner asked the permission of defendant to decide
  Claim 255.*fn1
  2. Judge Conner allowed the New York Times ("Times"),a
  non-party, to be present at the conference.*fn2
  3. James Baker, a Times employee, was disrespectful during the
  conference by making lewd hand gestures and offensive vocal
  insults. Judge Conner did not attempt to quell this
  disruption.*fn3
  4. Judge Conner allowed the attorney for the Times to take up
  the conference with irrelevant matters which Judge Conner

  indicated would have a bearing on the claim.*fn4
  5. Judge Conner said that he would not award plaintiffs their
  proposed remedy of placement on the Times' Group I list because
  of a possibility of similar actions from a group of like
  workers who would seek the same kind of action.*fn5
  6. Judge Conner terminated the conference abruptly to go to
  another conference that involved Union workers for the same
  hiring positions at the Times. Plaintiffs had requested that
  their hiring positions be frozen. Such action is alleged to
  show a predilection toward the Union workers and a bias toward
  the plaintiffs.*fn6

Plaintiffs, in their Reply Memorandum, cite the Administrator's "working relationship" with Judge Conner for "at least the last twelve years" as further evidence of bias.*fn7 Finally, plaintiffs allege that their "Fourteenth Amendment rights of Due Process have been violated not by the court's adverse rulings, but by its ...


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