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JENKINS v. SLADKUS

United States District Court, S.D. New York


June 3, 2004.

LINDSAY JENKINS, Plaintiff
v.
STEVEN SLADKUS, et al., Defendants

The opinion of the court was delivered by: LEWIS KAPLAN, District Judge

ORDER

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 recusal.

  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.

  SO ORDERED.

20040603

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