United States District Court, S.D. New York
June 3, 2004.
LINDSAY JENKINS, Plaintiff
STEVEN SLADKUS, et al., Defendants
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
Plaintiff has moved for an order transferring this action to the
Eastern District of New York, from whence it was transferred to this
Court, or, alternatively, reassigning it to a magistrate judge from
outside this district. In a report and recommendation dated March 22,
2002, Magistrate Judge Dolinger recommended that the motions be denied.
Plaintiff has objected to the report and recommendation.
Plaintiff argues that the action should be sent back to the Eastern
District because Judge Garaufis "mistakenly transferred the case, based
on two errors (1) his lack of knowledge about the simultaneous illegal
activity of the defendants in Queens County and (ii) his confusion
concerning whether there was active `litigation' in this district, when
there was none."
The law of the case doctrine reflects the obvious fact that a regime in
which each and every order in a case could be subjected to attack on the
ground that it was wrongly or improvidently entered could become
unworkable. The doctrine therefore generally precludes review of prior
orders issued in the same case, although a court has discretion to depart
from its strict application where "there has been an intervening change
of controlling law, new evidence has become available, or there is a need
to correct a clear error or prevent manifest injustice." DeGuglielmo
v. Smith, 336 F.3d 130, 134 (2d Cir. 2004). Plaintiff has made no
such showing here. The Court sees no clear error, and it it is not
persuaded that manifest injustice would occur if plaintiff, who resides
in London, is compelled to litigate in a courthouse at the west rather
than the east end of the Brooklyn Bridge. Accordingly, the motion to
retransfer the action to the Eastern District of New York is denied.
Plaintiff seeks, in the alternative, an order referring this matter to
a magistrate judge from outside this district. She initially did so on
the theory that she has made accusations against one magistrate judge of
this Court and that it would be inappropriate to have one of the
colleagues of that magistrate judge perform functions in this case. She
now claims, in addition, that Judge Dolinger's report and recommendation
manifests personal bias and hostility toward her. Applications for recusal should be made in the first instance to the
judge in question. Insofar as plaintiff claims bias on the part of Judge
Dolinger, as distinguished from her contention that it would be
inappropriate to have one magistrate in this district assigned to a case
in which accusations have been made against another, she has not sought
recusal before him. This Court will not consider the bias assertion prior
to her giving Judge Dolinger an opportunity to address the matter.
Plaintiff's contention that it would be unseemly for any of the
magistrate judges who serve on the same court to be assigned to a matter
in which accusations have been made against another was raised before
Judge Dolinger, who treated it as an "argument for recusal" and rejected
it.1 Inasmuch as this plaintiff has not suggested that Judge Dolinger had
any authority to assign to this matter another magistrate judge from
outside the district, this Court cannot fault him for treating the
application as one for recusal alone. Nor does it see any error in his
conclusion that the mere fact that plaintiff has made accusations against
another magistrate judge of this Court did not require that Judge
Dolinger to recuse himself. As Judge Dolinger said, a judge is not
required to recuse him-or herself simply because a litigant before the
judge has filed suit or made a complaint against him or her. E.g., United
States v. Nagy, 19 F. Supp.2d 139, 140-41 (S.D.N.Y. 1998), aff'd without
consideration of the point, 173 F.3d 847 (2d Cir.) (table), cert.
denied, 528 U.S. 840 (1999). A fortiori the pendency of accusations
against a colleague of a judge is not alone sufficient to require
Accordingly, plaintiff's objections are overruled and the motions
denied. Without intending to express any opinion as to whether relief
might be available from this source, plaintiff is free to apply to the
Court's Assignment Committee, through the Chief Judge, for assignment of
another magistrate judge on the ground referred to in the penultimate
paragraph of this order.
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