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VERONE v. TACONIC TEL. CORP.

June 5, 1993

THOMAS VERONE, Plaintiff,
v.
TACONIC TELEPHONE CORP. and LOCAL UNION NO. 166, INT'L BROTHERHOOD OF ELECTRICAL WORKERS, Defendant,



The opinion of the court was delivered by: THOMAS J. MCAVOY

Thomas J. McAvoy, C.J.,

 ORDER

 Plaintiff comes before this court a frustrated man. After bringing a civil action against his employer and having it dismissed as frivolous with sanctions imposed upon himself and his attorney pursuant to Fed.R.Civ.P. 11, plaintiff finds himself in the precarious position of satisfying the entirety of the sanction award. See Order 9/24/92 (amending Order, 11/27/91). He now seeks to have the undersigned judge recuse himself and, apparently in the alternative, to have the court hold his attorney, Paul Moore, in contempt. For the reasons discussed, I find no reason to recuse myself but do find sufficient basis to hold Mr. Moore in contempt.

 I. Background

 The road to this point is a winding one and there is no need to re-travel it all. Suffice it to say that after assessing Rule 11 sanctions jointly and severally against the defendant and his attorney, and after a motion by defendant for contempt when neither Verone nor his attorney (Moore) attempted to satisfy the sanction award, the court Ordered that Verone was to pay to the defendant $ 400 dollars per month and that his attorney was to pay to the defendant $ 500 per month until such time as the then-$ 9,800 sanction was satisfied. Through an apparently voluntary agreement, Verone agreed to have the $ 400 per month garnished from his wages by the defendant. However, because the sanction was assessed jointly and severally against both Verone and his attorney, the defendant was able to continue deducting Verone's pay until such time as the whole sanction was satisfied.

 When Verone realized that Moore was failing in his obligation under the court's 9/24/92 Order (thus leaving Verone to satisfy the entire sanction himself), Verone brought a contempt motion against Moore. In an Order dated 10/23/93, the court found Moore in further contempt and ordered him to pay $ 5,480.00 *fn1" to Verone within thirty days or be arrested and confined by the United States Marshal until such time as the contempt order was satisfied. However, the October 23, 1993 Order also contained a clause allowing Moore to show good cause why he could not obey the requirements of that Order. Upon this clause, Moore conferred with the court and demonstrated that good cause prevented him from satisfying the terms of the Order - namely, that his wife was in treatment for a life threatening illness and that his law practice was in financial straits. In lieu of compliance, Moore offered to enter into a payment plan whereby he pay $ 500 per month directly to Verone until he satisfied his $ 5,480.00 debt. Over Verone's objections, the court agreed to such a payment plan but also ordered Moore to pay an additional $ 500 for each month that he failed to timely remit payment to Verone.

 As of the date this motion, Verone attests that Moore has failed to remit payments for the months of February, March, and April of 1993. Moore has submitted no opposition to the instant motion.

 II. Discussion

 A. Recusal

 As too often happens, Verone seeks recusal simply because the rulings in this matter have not been in his favor. He complains that the rulings in this case, especially the court's decision to forgo arrest of Moore in lieu of a monthly payment plan, evidences the court's "prejudice." Surely, through the subjective eye of the unsuccessful litigant, it is difficult to see what is and is not "justice." But the court must remain the final arbiter of this decision and, even when one party disagrees, it must abide by those convictions which objectively serve the interests of justice. Mr. Verone has presented this court with no reason or basis for recusal other than his own subjective displeasure with the rulings in the case. The court assumes that Verone proceeds under 28 U.S.C. §§ 144, *fn2" 455(a) & (b)(1) and the court provides the following in support of its conclusion to deny the motion for recusal.

 "In deciding whether to recuse himself, the trial judge must carefully weigh the policy of promoting public confidence in the judiciary against the possibility that those questioning his impartiality might be seeking to avoid the adverse consequences of his presiding over the case. Litigants are entitled to an unbiased judge; not to a judge of their choosing." In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1312 (2d Cir. 1988), cert. denied, 490 U.S. 1102 (1989) (citation omitted); see also United States v. Lovaglia, 954 F.2d 811, 815 (2d Cir. 1992); United States v. Terry, 802 F. Supp. 1094 (S.D.N.Y. 1992). For this reason, "[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.

 "It is well-established that under [ 28 U.S.C. §§ 455(b)(1) & 144], which employ the same analysis in establishing whether personal bias or prejudice exists, [the court] 'looks to extrajudicial conduct as the basis for making such a determination, not conduct which arises in a judicial context.'" Terry, 802 F. Supp. at 1097-98 (quoting Apple v. Jewish Hospital and Medical Center, 829 F.2d 326, 333 (2d Cir. 1987)); see also United States v. Grinnell Corp., 384 U.S. 563, 583, 16 L. Ed. 2d 778, 86 S. Ct. 1698 (1966) (under § 144, "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 has learned from his participation in the case.")

 "The substantive standard for recusal [under §§ 144 & 455(b)(1)] is whether a reasonable person, knowing all the facts, would conclude that the court's impartiality might reasonably be questioned." Terry, 802 F. Supp. at 1097-98 (quoting Apple v. Jewish Hospital and Medical Center, 829 F.2d at 333. The standard under § 455(a) is "whether an objective, disinterested observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt that justice would be done in the case." De Luca v. Long Island Lighting Co., 862 F.2d 427, 429 (2d Cir. 1988) ((quoting Pepsico, Inc. v. McMillen, 764 F.2d 458, 460 (7th Cir. 1985)); see also McCann v. Communications Design Corp., 775 F. Supp. 1506, 1523 (D. Con 1991) (The standard under § 455(a) is "whether a reasonable person, knowing and understanding all the relevant facts, would conclude that the judge's impartiality might reasonably be questioned.").


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