Blakely v. USAA Cas. Ins. Co., Civil No. 2:06-CV-00506 BSJ

CourtUnited States District Courts. 10th Circuit. United States District Court of Utah
Writing for the CourtBruce S. Jenkins
Decision Date10 December 2012
Docket NumberCivil No. 2:06-CV-00506 BSJ


Civil No. 2:06-CV-00506 BSJ


Date: December 10, 2012

(28 U.S.C. §§ 144, 455)

On November 16, 2012, this court docketed the mandate of the court of appeals in the above-entitled action. (See Mandate, filed November 16, 2012 (dkt. no. 164).) The court of appeals reversed this court's December 6, 2011 Memorandum Opinion and Order granting summary judgment against the plaintiffs Alan and Colelyn Blakely ("the Blakelys") on their claims against USAA Casualty Insurance Company ("USAA") for breach of the implied covenant of good faith and fair dealing and remanded the same for further proceedings in light of the Utah Supreme Court's recent opinion in Jones v. Farmers Insurance Exchange, 2012 UT 52, 286 P.3d 301, decided August 28, 2012.

Prior to this court's receipt of that mandate, the plaintiffs filed a "Motion to Have Judge Recuse Himself and Have Another Judge Assigned" pursuant to 28 U.S.C. §§ 144 and 455,1

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accompanied by a memorandum,2 a declaration signed by both plaintiffs,3 and subsequently, a certificate of plaintiffs' counsel.4 Defendant's counsel filed a memorandum in response5 and plaintiffs' counsel filed a one-paragraph reply.6

Applicable Legal Standards

28 U.S.C. § 144 and "Personal Bias or Prejudice"

Section 144 provides for the disqualification of a district court judge when a party to a proceeding before that judge makes the requisite showing that the judge has "a personal bias or prejudice either against him or in favor of any adverse party."7 "A district court judge must not

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proceed further when a party makes and files a timely and sufficient affidavit that the first judge has a personal bias or prejudice." Green v. Dorrell, 969 F.2d 915, 919 (10th Cir. 1992) (emphasis in original).8 To warrant disqualification, the affidavit required under § 144 must be both timely and sufficient.9


Section 144's "timeliness requirement has this been deemed of 'fundamental importance' and a matter of substance, not form by a majority of federal district and appeals courts,"10 and is measured by a standard of reasonableness.11 In this Circuit, the movant must "file his affidavit when he first learned of facts that allegedly showed bias and prejudice." Green, 969 F.2d at 919; see Hinman v. Rogers, 831 F.2d 937, 938 (10th Cir. 1987) ("a motion to recuse must be filed

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promptly after the facts forming the basis of the disqualification become known");12 United States v. Gigax, 605 F.2d 507, 511 (10th Cir. 1979) (same); United States v. Roberts, 947 F. Supp. 1544, 1549 (E.D. Okla. 1996) (affidavit "must be filed 'at the first opportunity after discovery of the facts tending to prove disqualification.'" (quoting Sine v. Local No. 992 Intern. Broth. of Teamsters, 882 F.2d 913, 915 (4th Cir.1989))).13 As the Fifth Circuit has observed, "The most egregious delay—the closest thing to per se untimeliness—occurs when a party already knows the facts purportedly showing an appearance of impropriety but waits until after an adverse decision has been made by the judge before raising the issue of recusal." United States v. Vadner, 160 F.3d 263, 264 (5th Cir. 1998).


"A party cannot subjectively state in a 28 U.S.C. § 144 affidavit that a judge is prejudiced and thereby automatically disqualify the judge."14 Section 144 "requires that the affidavit of bias must state the facts and reasons for the belief that bias or prejudice exists."15 To be entitled to

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recusal under § 144, the moving party must submit an affidavit showing, among other things, personal bias and prejudice:

Affidavits of disqualification [under § 144] must allege personal rather than judicial bias. They must contain more than mere conclusions. They must show facts indicating the existence of a judge's personal bias and prejudice. Motions alleging bias and prejudice on the part of a judge which establish simply that the affiant does not like a particular judge are not adequate to require disqualification.

United States v. Bray, 546 F.2d 851, 857 (10th Cir. 1976) (citations omitted). In order to be sufficient, the § 144 affidavit must state facts and reasons which "'give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment.'" Bell v. Chandler, 569 F.2d 556, 559 (10th Cir. 1978) (quoting Berger v. United States, 255 U.S. 22, 33-34 (1921)). "A disqualification order under § 144 should be issued when 'a reasonable man would conclude on the facts stated (in the affidavit) that the district judge had a special bias against defendant.'" Bell, 569 F.2d at 559 (quoting United States v. Thompson, 483 F.2d 527, 528 (3d Cir. 1973)).

To warrant recusal under § 144, the alleged bias must be both personal and extrajudicial:

§ 144 refers to 'personal bias or prejudice.' The complaints of the plaintiffs relate to actions and statements during the proceedings. They reflect the judge's attitude and reactions to incidents then occurring. They do not reflect any personal feeling for or against any party or any attorney. To sustain disqualification the bias and prejudice must arise from an 'extrajudicial source' and result in an opinion 'on some basis other than what the judge learned from his participation in the case.' . . . . Here the complaints all have their origin in judicial proceedings and the decision was on the record made in the judicial proceedings.

Davis v. Cities Serv. Oil Co., 420 F.2d 1278, 1282 (10th Cir. 1970) (quoting United States v. Grinnell Corp., 384 U.S. 563, 583 (1966)) (citation omitted); see United States v. Irwin, 561 F.2d 198, 200 (10th Cir. 1977) ("The bias charged must be of a personal nature and must be such as would likely result in a decision on some basis other than what the judge learned from his

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participation in the case.").16 Adverse rulings alone are insufficient grounds for disqualification of a judge, Glass v. Pfeffer, 849 F.2d 1261, 1268 (10th Cir. 1988) (citing Bray, 546 F.2d at 857), "as is evidence that the judge criticized or was angry with a party." Lopez v. Behles (In re Am. Ready Mix, Inc.), 14 F.3d 1497, 1501 (10th Cir. 1994).

[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make a fair judgment impossible.

Liteky v. United States, 510 U.S. 540, 555 (1994) (emphasis in original).

Moreover, under § 144 a federal judge may be disqualified only "upon a showing of actual bias or prejudice." Varela v. Jones, 746 F.2d 1413, 1416 (10th Cir. 1984); see Hoffman v. Caterpillar, Inc., 368 F.3d 709, 718 (7th Cir. 2004) ("a motion to disqualify under § 144 requires a showing of actual bias. And only personal animus or malice on the part of the judge can establish actual bias." (emphasis in original) (citing United States v. Balistrieri, 779 F.2d 1191, 1201 (7th Cir. 1985))); Henderson v. Dep't Pub. Safety and Corrs., 901 F.2d 1288, 1296 (5th Cir. 1990) ("Section 144 relates only to charges of actual bias.").

To be legally sufficient under § 144, the affidavit must aver specific facts: "The affidavit must state with required particularity the identifying facts of time, place, persons, occasion, and

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circumstances." Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir. 1987). "The affidavit is insufficient if it merely states conclusions, rumors, beliefs and opinions . . . ." Glass, 849 F.2d at 1267.17

The facts alleged in the § 144 affidavit must be accepted as true, Glass, 849 F.2d at 1267, but they are "strictly construed against the affiant and there is a substantial burden on the moving party to demonstrate that the judge is not impartial," not a burden on the judge to prove that he is impartial. United States v. Burger, 964 F.2d 1065, 1070 (10th Cir. 1992), cert. denied, 507 U.S. 1033 (1993). Whether to recuse is a decision "committed to the sound discretion of the district court," and the court of appeals will not reverse a judge's refusal to recuse absent an abuse of that discretion. Id.

28 U.S.C. § 455 & Judicial Impartiality

28 U.S.C. § 455(b)(1) echoes the § 144 recusal requirement for actual personal bias, and requires disqualification only if "actual bias or prejudice is 'proved by compelling evidence.'" Hook v. McDade, 89 F.3d 350, 355 (7th Cir. 1996) (quoting United States v. Balistrieri, 779 F.2d at 12020).18 Section 455(a), on the other hand, is broader and requires a judge to disqualify himself "in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. §...

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