United States District Court, S.D. New York
March 22, 2004.
TRACY UTSEY, Plaintiff, -against- AMERICAN BIBLE SOCIETY, et ano., Defendants
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
Plaintiff, by motion dated March 11, 2004, seeks to disqualify the
undersigned pursuant to 28 U.S.C. § 144 on the basis of unspecified
statements allegedly made by the Court at a pretrial conference on
February 13, 2004, which she asserts reflect bias or prejudice against
her "because [she] is not a lawyer, an employer and [is] now representing
[her]self, Pro Se."
Section 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 him or in favor of any adverse party, such
judge shall proceed no further therein, but another
judge shall be assigned to hear such proceeding.
"The affidavit shall state the facts and the
reasons for the belief that bias or prejudice
exists, and shall be filed not less than ten days
before the beginning of the term at which the
proceeding is to be heard, or good cause shall be
shown for failure to file it within such time. A
party may file only one such affidavit in any
case. It shall be accompanied by a certificate of
counsel of record stating that it is made in good
The statute therefore has both procedural and substantive requirements.
From a procedural point of view, the affidavit must be timely
it must be filed as
soon as practical after learning of the facts.*fn1 It must be made
by the party. And it must be accompanied by a certificate of counsel
stating that the affidavit is filed in good faith.*fn2 The procedural
requirements of the statute are enforced strictly.*fn3
From a substantive perspective, the affidavit must allege sufficiently
that the judge has a personal bias or prejudice against the party filing
the affidavit or in favor of an adverse party. To this must be added the
further gloss, viz. that the determination of whether such an affidavit
is timely and legally sufficient is made by the judge whose recusal is
sought.*fn4 In doing so, however,
the judge is obliged to assume the truth of the factual allegations
of the affidavit, although the judge may disregard speculative and
At the outset, plaintiff's motion is untimely. She claims that the
information upon which the motion is based came to her attention on
February 13. She waited at least until March 11 to make the motion. The
Court notes parenthetically that plaintiff may have been prompted to file
this motion by the fact that defendants on February 26, 2004 wrote to the
Court, complaining that plaintiff again had refused to appear for the
completion of her deposition,*fn6 and her concern that the Court might
not indulge this behavior in view of its earlier admonitions. E.g., Tr.,
Feb. 13, 2004, 5-6. The motive for the delay, however, is immaterial.
What is material is that March 11 was not "he earliest possible moment
[by which plaintiff could have moved under Section 144] after obtaining
knowledge of facts demonstrating the basis for such a claim."*fn7
Even if the motion were timely, the affirmation*fn8 is insufficient.
It is largely conclusory. To the very limited extent that it is not, it
is at material variance with the transcript of the proceedings of
February 13, 2004.*fn9 The record reveals nothing to support a claim of
prejudice. Id., passim.
The motion is denied.