United States District Court, E.D. New York
July 1, 2004.
FOX INDUSTRIES, INCORPORATED, Plaintiff,
LEONID GUROVICH, a/k/a LEO GORE, Defendant.
The opinion of the court was delivered by: THOMAS PLATT, JR., Senior District Judge
MEMORANDUM AND ORDER
Defendant Leonid Gurovich, also known as Leo Gore, has
submitted an Order to Show Cause with Exhibits, a Memorandum of
Law and a fifty-three page Affidavit moving to compel the
undersigned to disqualify himself from this case pursuant to
28 U.S.C. § 455(a). Section 455 states that any United States judge
"shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned."
Disqualification under § 455(a) "requires a showing that would
cause an objective, disinterested observer fully informed of the
underlying facts to entertain significant doubt that justice
would be done absent recusal." United States v. Lauersen,
348 F.3d 329, 334 (2d Cir. 2003), cert. denied,
158 L.Ed.2d 735, 124 S.Ct. 2190 (2004) (citation and quotation marks
omitted, relying on Liljeberg v. Health Services Acquisition
Corp., 486 U.S. 847, 858-62 (1988)). Section 455(a) "governs
circumstances that constitute an appearance of partiality, even
though actual partiality has not been shown. The determination of
whether such an appearance has been created is an objective one
based on what a reasonable person knowing all the facts would
conclude." Chase Manhattan Bank v. Affiliated FM Ins. Co.,
343 F.3d 120, 127 (2d Cir. 2003), cert. dismissed,
158 L.Ed.2d 263, 124 S.Ct. 1652 (2004) (citing Liljeberg, 486 U.S. at
860; and Liteky v. United States, 510 U.S. 540, 548 (1994)).
The standard for recusal for bias or prejudice under § 455(a),
based on remarks made in court by a judge, which is the basis of
the instant motion, is that
judicial rulings and judicial remarks during the
course of a trial that are disapproving of, or even
hostile to, counsel, the parties, or their cases do
not support a claim of bias or partiality unless they
reveal such a high degree of favoritism or antagonism
as to make fair judgment impossible . . .
expressions of impatience, dissatisfaction,
annoyance, and even anger, that are within the
bounds of what imperfect men and women, even after
having been confirmed as federal judges, sometimes
display do not establish bias or partiality.
Francolino v. Kuhlman, 365 F.3d 137
, 143-44 (2d Cir. 2004)
(first emphasis supplied, second emphasis in original, quotation
marks and footnote omitted, citing Liteky, 510 U.S. at 555).
The grounds for the undersigned's opinions and rulings are
summarized as follows from Gore's Affidavit of June 18, 2004, and
also in this Court's Memoranda and Orders of April 28, 2004 and
May 26, 2004, copies of which are attached hereto and made a part
hereof, as well as United States Magistrate Judge William D.
Wall's June 22, 2004 Order in this case.
The motion of Plaintiff Fox Industries, Incorporated ["Fox"]
for a temporary restraining order and a preliminary injunction
was returnable on October 15, 2003. This motion was adjourned, at
the request of Gore's counsel, Simon Schwarz, Esq., to November
14, 2003 at 2:15 p.m. This adjournment resulted in the
non-appearance of defense counsel, allegedly because, although
Mr. Schwarz was in Central Islip by 2:15 p.m. on that date, he
and his driver "could not find" the United States Courthouse,
with the result that and the Court entered a default, a temporary
restraining order and a preliminary injunction against Gore.
See April 28th Memorandum and Order at 3, n. 2.
The fact is that Gore's counsel, Mr. Schwarz, did not make a
bona fide attempt to find the courthouse. The epicenter of
Central Islip is less than 2 miles from the courthouse, which is
by far the tallest (eleven stories), largest (virtually a city
block) and most visible building in a ten-mile radius from any
chosen vantage point. Unless Mr. Schwarz and his driver
deliberately avoided looking at the courthouse (c.f. Lot and
his daughters fleeing the destruction of Sodom and Gomorrah,
see Genesis 19:15-17), they had to see the building and Mr.
Schwarz's protestations to the contrary are patently
In any event, this Order, and an earlier Order, both enjoined
Gore from utilizing Fox's trade secrets and engaging in the
grinding and burnishing business in violation of Gore's
non-competition and non-disclosure agreements with Fox, and also
ordered Gore to return certain proprietary materials belonging to
Fox. See Orders of October 22 and November 19, 2003.
Thereafter, Fox suspected that Gore, having made no effort to
dissolve the restraints placed upon him, continued to violate
both his agreements and the Court's Orders. Fox moved for a
Judgment of Contempt for such violations, and brought to the
Court's attention Gore's alleged subordination of perjury and
obstruction of court orders, as well as further contumacious
conduct. See April 28th Memorandum and Order at 4 and passim.
In the ensuing contempt hearing, the Court took unrebutted
testimony clearly establishing that Gore violated this Court's
orders in three of four specific cases alleged by Fox. See
id. at 4-9. The Court also heard the testimony of Robert Mann,
testimony which corroborated Fox's proofs of Gore's violations of
the Orders, established an attempt by Gore to suborn perjury from
Mr. Mann and to falsify records in an effort to obstruct the
performance of the Orders. See id. at 10-14. Furthermore,
Gore described the undersigned with a term unrepeatable in mixed
company and also called the Court's Orders, along with another
earthy term, "a joke."*fn2 Id. at 14-16. (Gore now
asserts, without denying having made these remarks, that they are
"protected free speech." Gore's Affidavit at ¶ 51.)
During the contempt hearing Mr. Schwarz attempted to brush off
his client Gore's contumacious conduct with his "hope that the
Court is not going to be prejudiced by the ridiculous statements
that my client allegedly made about the Court. Because they never
took place." Not only did Mr. Mann testify that the statements
were in fact made by Gore, but Mr. Mann's testimony was
corroborated in the recording of a conversation he had with Gore,
the tape of which was played for the Court. Most significantly,
Gore did not take the stand and deny any of the foregoing, nor
did he personally disavow the "ridiculous" statements in any of
his affidavits, nor did he deny his attempts to suborn perjury
and obstruct the performance of the Court's Orders.
Mr. Schwarz's response to all of Gore's contumacious conduct is
that "the tape is a fake and will not be responded to by the
Defendant." April 28th Memorandum and Order at 18. Yet the fact
remains that Mr. Mann's testimony as to the authenticity of the
tape was not rebutted during the hearing. If the tape is a fake,
Gore may take the stand and testify as such, under oath. In the
absence of such sworn testimony, whatever the fulminations of his
counsel during argument, Gore's own silence speaks volumes.
As indicated above, the details of the foregoing summary may be
found in the Court's Memorandum and Order of April 28, 2004. All
of the Court's reactions to the conduct of Defendant and his
lawyer were caused by and are attributable to the outlandish
behavior of both Gore and Mr. Schwarz, and consequently are not
grounds for recusal.*fn3
Accordingly, the undersigned has not signed and will not sign
Gore's proffered Order to Show Cause. Upon reflection, the Court
grants that it may, on occasion, have expressed varying degrees
of disapprobation, hostility, impatience, dissatisfaction,
annoyance, and anger with the antics of both Gore and Mr.
Schwarz. See Francolino, 365 F.3d at 143-44. For example, the
undersigned admits, as set forth in Gore's Affidavit, to having
referred to various statements and arguments put forth by
Defendant's attorney as having been "baloney," "false," "fraud,"
"impossible," "incredible," and "a lie."*fn4 Id. at ¶¶ 29.
While they might express the same thoughts differently, the Court
submits that any other judicial fact-finder hearing the same
arguments would have reached identical ultimate conclusions.
At the end of the day, neither Gore nor his counsel have shown
facts that would cause a disinterested, objective and reasonable
observer to entertain significant doubt that justice will be done
in this case absent the recusal of the undersigned. See Chase
Manhattan Bank, 343 F.3d at 127; Lauersen, 348 F.3d at 33. It
is unfortunate that Gore chose to violate the October and
November 2003 Orders of this Court, and to engage in possible
criminal conduct. It is also unfortunate that Mr. Schwarz "cannot
find the courthouse," that Mr. Schwarz continues to practice
before this Court in an unprofessional manner, and that Mr.
Schwarz is evidently counseling Gore to remain in contempt of the
April and May 2004 Orders of this Court. Yet having made their
beds, Gore and Mr. Schwarz must lie in them.
The undersigned will not recuse himself. Rather, the Court will
await the forthcoming Report and Recommendation of Magistrate
Judge Wall as to the appropriate financial amounts (or other
punitive measures) that he suggests as penalties for the three
specific instances of contemptuous conduct displayed by Gore in
violation of the Orders imposed upon him by this Court in 2003.