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Nasca v. County of Suffolk

September 13, 2010

DEAN NASCA, PLAINTIFF(S),
v.
THE COUNTY OF SUFFOLK, POLICE OFFICER MICHAEL CONKLIN, PETER FRANK, WILLIAM G. FORD AND JOHN DOES 1-10, SAID NAMES BEING FICTITIOUS AND INTENDING TO REPRESENT EMPLOYEES, AGENTS AND ASSIGNS OF THE COUNTY OF SUFFOLK, DEFENDANT(S).



The opinion of the court was delivered by: E. Thomas Boyle United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Before the Court is the pro se plaintiff's letter application requesting my recusal on the grounds that I am biased against him as a result of my prior employment as the County Attorney for the County of Suffolk, a party to the within action. The pro se plaintiff further requests reconsideration of my prior decision denying a further extension of the discovery deadline. For the following reasons, plaintiff's motion is denied in its entirety.

DISCUSSION

I. Legal Standard for Recusal

28 U.S.C. § 455(a) provides that "[a]ny justice, judge, or magistrate... shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). Section (b) of the recusal statute sets forth specific situations in which recusal is warranted, particularly mandating recusal "[w]here [the judge] has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy." 28 U.S.C. § 455(b)(3). The ultimate inquiry under Section 455 is whether "a reasonable person, knowing all the facts, [would] conclude that the... judge's impartiality could reasonably be questioned." United States v. Lovaglia, 954 F.2d 811, 815 (2d Cir. 1992). Disqualification is not required where a case involves "remote, contingent, indirect or speculative interests." Id.

The pro se plaintiff requests that I recuse myself from this action on the grounds that I am biased because of my prior affiliation with the County of Suffolk, a party in this action. I served as the County Attorney of Suffolk County from 1988 through 1991. As noted above, prior government employment requires recusal where the judge, in his or her capacity in prior governmental service, "participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy."

28 U.S.C. § 455(b). That is not the situation here. I did not participate in the within action in my prior governmental position, nor was the individual defendant, William G. Ford, employed by the County Attorney during my tenure in office. The plaintiff's action was commenced in January 2009. My tenure with the Suffolk County Attorney's office ended in 1991, more than nineteen years prior to the commencement of this litigation.

As previously stated, the Second Circuit has clarified that recusal is not required where the judge's interest or participation is "remote, contingent, indirect or speculative." Lovaglia, 954 F.2d at 815; see also United States v. Thompson, 76 F.3d 442 (2d Cir. 1996) (holding that judge was not required to recuse himself based on prior employment with the United States Attorney's office during the time defendant's criminal investigation began where judge had no direct connection with defendant's case). Furthermore, the Second Circuit has clearly determined that a judge's prior representation of one of the parties in a proceeding does not automatically warrant disqualification. See National Auto Brokers Corp. v. General Motors Corp., 572 F.2d 953 (2d Cir. 1978). Plaintiff has failed to establish a sufficient nexus between myself and the present litigation.

II. Timeliness of the Motion

Although there is no express provision in 28 U.S.C. § 455 mandating that a party move for recusal in a timely fashion, this requirement has been effectively read into the statute. See In re IBM Corp., 618 F.2d 923, 932 (2d Cir. 1980). It is well-settled that a party seeking recusal must raise its claim at the "earliest possible moment after obtaining knowledge of facts demonstrating a basis for such a claim." Apple v. Jewish Hosp. and Med. Ctr., 829 F.2d 326, 333 (2d Cir. 1987). Untimeliness in seeking recusal may constitute the basis for finding an implied waiver of the right to seek it. See United States v. Bayless, 201 F.3d 116, 127 (2d Cir. 2000).

The decision whether to grant or deny a recusal motion is a matter confided to the court's discretion. See id. A number of factors must be examined when assessing the timeliness of a motion for recusal, including "whether: (1) the movant has participated in a substantial manner in trial or pre-trial proceedings; (2) granting the motion would represent a waste of judicial resources; (3) the motion was made after the entry of judgment; and (4) the movant can demonstrate good cause for delay." Id. at 334.

There are two underlying concerns that prompt this rule of timeliness. First, judicial resources should not be wasted. See id. A prompt application affords the judge an opportunity to assess the merits of the application before taking any further steps that may be inappropriate to take. See In re IBM Corp., 45 F.3d 641, 643 (2d Cir. 1995). Second, "a movant may not hold back and wait, hedging its bets against the eventual outcome." Apple, 829 F.2d at 334. A prompt application for recusal avoids the risk that the party is holding back its application as a "fall-back position" in the event there are adverse rulings on the pending matters. In re IBM, 45 F.3d at 643.

Plaintiff commenced the within action in January 2009, at which time I was assigned as the magistrate judge. I have also served as the magistrate judge on the pro se plaintiff's action entitled Nasca v. Town of Brookhaven, CV 06-0505, from its inception in February 2006 until its termination in June 2008.*fn1 The within application for recusal is based on the plaintiff's dissatisfaction with the rulings made on August 4, 2010. Those proceedings are a matter of record. The plaintiff was precluded from testifying or offering any affidavit in support of or in opposition to summary judgment unless he submits to a deposition requested by the defendants prior to the close of discovery - September 3, 2010. In addition, all discovery was certified as complete except for three depositions noted on the record. Discovery had previously been extended from its original completion date of March 31, 2010 to September 3, 2010 - a period of five (5) months.

Any decision that was made related to the August 4, 2010 rulings on the record was based on knowledge I had as the judge responsible for case management and any non-dispositive motions. There is no information from an extra-judicial source that affected that decision. See United States v. Grinnell Corp., 384 U.S. 563 (1966); see also Liteky v. United States, 510 U.S. 540 (1994). The plaintiff has not demonstrated good cause ...


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