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UTSEY v. AMERICAN BIBLE SOCIETY

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

ORDER

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 faith."
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 Page 2 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, Page 3 the judge is obliged to assume the truth of the factual allegations of the affidavit, although the judge may disregard speculative and conclusory assertions.*fn5

  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 bias or Page 4 prejudice. Id., passim.

  The motion is denied.

  SO ORDERED.


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