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HOLMES v. NBC/GE

May 15, 1996

SANDRA HOLMES, Plaintiff, against NBC/GE, ET AL., Defendants.


The opinion of the court was delivered by: MOTLEY

 Plaintiff has moved to disqualify this court from presiding over this case in which plaintiff claims to have suffered discrimination in the terms and conditions of her employment based on her race and gender, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.. Because plaintiff's allegations are insufficient as a matter of law to justify this court's disqualification the motion is denied.

 BACKGROUND

 By Order and Memorandum Opinion dated February 8, 1996, Holmes v. NBC/GE, 914 F. Supp. 1040 (S.D.N.Y. 1996) (hereinafter, "the February Order"), this court denied defendants' motion for summary judgment. On April 4, 1996, a pre-trial conference was held in this matter, in which the court held that issues raised in a cross motion filed by plaintiff would be severed for consideration after trial of plaintiff's civil rights claims. See Pre-Trial Schedule and Order, dated April 4, 1996. Because of the broad nature of the relief sought by plaintiff in her cross motion, the court issued another Order with Memorandum Opinion on April 9, 1996, to clarify the court's prior ruling on plaintiff's cross motion. See Holmes v. NBC/GE, 94 Civ. 9341, 1996 U.S. Dist. LEXIS 4345, (April 9, 1996), 1996 WL 164725 (S.D.N.Y.) (decision on plaintiff's cross motion). *fn1" In the April Orders, the court expressly denied that portion of plaintiff's cross motion that sought a preliminary injunction, summary judgment and sanctions against defendants' counsel. All other relief sought in the cross motion was severed for consideration after trial on plaintiff's discrimination claims. The facts of the underlying dispute are set forth in this court's previous decisions in this case denying defendant's motion for summary judgment and denying, in part, plaintiff's cross motion and familiarity therewith is assumed.

 To support her motion for disqualification, plaintiff makes the following allegations: 1) that her attorney was treated with "total disrespect ... in a hearing in open court"; 2) that the court has disregarded "evidence" that defendants and their agents have committed perjury in these proceedings *fn2" ; 3) that the court has "precluded the consideration of the fact that [defendants are] in violation of a consent decree which mandates objective job evaluations ..."; 4) that defendants were permitted to delay in filing their answer in this case and that defendants' counsel "lied" in her affidavit of service of said answer because the answer was purportedly served a day later than the affidavit attests *fn3" ; 5) that the court established the discovery schedule in this case before the answer was actually filed *fn4" ; 6) that the court established a schedule for depositions without taking into account the fact that "plaintiff may well need more than this amount of time [for depositions] ..." and that this is "unilaterally burdensome" on plaintiff; *fn5" 7) that the court has severed certain issues for trial until after trial of the Title VII claims in this case; 8) that the court has denied plaintiff the right to amend her complaint *fn6" ; 9) that those portions of plaintiff's cross motion that sought (a) summary judgment, (b) sanctions under Fed. R. Civ. Proc. 11, and (c) a preliminary injunction were all denied; 10) that the court failed to maintain a record of the pre-trial April 4, 1996 pre-trial conference; and 11) that the court failed to advise plaintiff's counsel that "oral argument" on the motion for preliminary injunction would be held, even though no hearing concerning the cross motion for preliminary injunction was requested. (See Holmes Aff. at P 3.)

 In response to plaintiff's disqualification motion, defendants have sought leave to file sanctions under Fed. R. Civ. Proc. 11, or for the court to issue such sanctions on its own initiative. In addition, it has come to the attention of the court that since filing the motion to disqualify this court plaintiff has filed a notice of appeal of the April Orders in their entirety.

 ANALYSIS

 I. PLAINTIFF'S DISQUALIFICATION MOTION.

 Plaintiff has moved under 28 U.S.C. §§ 144 and 455 for the disqualification of this court on the ground "of personal bias against plaintiff ... and in favor of defendants." (Pl. Not. of Mot. at 1.)

 28 U.S.C. § 144 provides:

 
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 [her] or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

 Similarly, 28 U.S.C. § 455(b)(1) provides for recusal when a judge "has a personal bias or prejudice concerning a party."

 The papers supporting a motion for disqualification are considered against an objective standard, which is the same under both §§ 144 and 455. See Apple v. Jewish Hosp. and Medical Ctr., 829 F.2d 326, 333 (2d Cir.1987). The trial court must determine, taking all of the facts set forth in the affidavit supporting the motion as true, Hodgson v. Liquor Salesmen's Union Local No. 2, 444 F.2d 1344, 1348 (2d Cir. 1971), whether a reasonable person, with a knowledge and understanding of all of the relevant facts, would conclude that the court's impartiality is reasonably in doubt. See In re International Business Machines Corp., 45 F.3d 641, 643 (2d Cir. 1995) (citations omitted). There is a presumption of judicial impartiality, however, and the burden the movant must carry to overcome this presumption is "substantial." Farkas v. Ellis, 768 F. Supp. 476, 478 (S.D.N.Y. 1991); Giladi v. Strauch, 94 Civ. 3976, 1996 U.S. Dist. LEXIS 405 (Jan. 18, 1996), 1996 WL 18840 (S.D.N.Y.) (same).

 The trial judge is vested with discretion to determine whether to disqualify herself. In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1312 (2d Cir. 1988), cert. denied sub nom. Milken v. Securities and Exchange Commission, 490 U.S. 1102, 104 L. Ed. 2d 1012, 109 S. Ct. 2458 (1989). Indeed, "[a] judge is as much obliged not to recuse [herself] when it is not called for as [she] is obliged to when it is." In re Drexel Burnham Lambert Inc., 861 F.2d at 1312. Although § 144 provides for the assignment of the case to "another judge" to hear the proceeding once a "timely and sufficient affidavit" alleging bias or prejudice is proffered, it is still within the discretion of the trial court to determine, at the outset, the legal sufficiency of the affidavit supporting the motion. Apple v. Jewish Hosp. & Medical Ctr, 829 F.2d at 333. See also Wolfson ...


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