Bumpus v. Uniroyal Tire Co. Division of Uniroyal, Inc., Civ. A. No. 72-1372.

• Decision Date: 02 December 1974
• Docket Number: Civ. A. No. 72-1372.
• Citation: 385 F. Supp. 711
• Parties: Beth Ann BUMPUS et al. v. UNIROYAL TIRE CO. DIVISION OF UNIROYAL, INC.
• Court: U.S. District Court — Eastern District of Pennsylvania

385 F. Supp. 711

Beth Ann BUMPUS et al. v. UNIROYAL TIRE CO. DIVISION OF UNIROYAL, INC.

Civ. A. No. 72-1372.

United States District Court, E. D. Pennsylvania.

December 2, 1974.

Edward L. Wolf, Philadelphia, Pa. for plaintiffs.

Alan Klein, Philadelphia, Pa., for defendant.

MEMORANDUM AND ORDER

DAVIS, Senior Judge:

Defendant has filed a Motion for Disqualification of the Trial Judge under the provisions of 28 U.S.C. § 144 because of an alleged personal bias in favor of the plaintiffs in this case. Such a motion is properly addressed to and ruled upon by the Judge himself. United States v. Bell, 351 F.2d 868 (4th Cir. 1965), cert. denied 383 U.S. 947, 86 S.Ct. 1200, 16 L.Ed.2d 210, I have therefore given the matter most careful consideration, but because the supporting affidavit is insufficient as a matter of law, for the reasons to be stated, the motion will be denied.

While not the sole basis for my decision herein, certain procedural deficiencies necessarily affect consideration of this motion. Defendant initially filed the motion supported by an affidavit of its counsel. Title 28, Section 144, which permits the removal of a Judge for bias or prejudice, however, provides as follows:

§ 144. Bias or prejudice of judge

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

Since the plain language of the statute denotes a procedure available only upon the filing of an affidavit of "a party to any proceeding", the affidavit of the defendant's attorney did not satisfy the statutory requirement, and on that basis the motion could well have been denied. See, United States ex rel. Wilson v. Coughlin, 472 F.2d 100 (7th Cir. 1973); Giebe v. Pence, 431 F.2d 942 (9th Cir. 1970).

Subsequently, defendant submitted an affidavit of a corporate Assistant Secretary incorporating by reference, upon information and belief, all of the averments of its counsel's affidavit. Whether or not this additional affidavit has cured the former procedural defect is unimportant to the decision on the motion, and I will assume it is sufficient in form. Cf. Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921).

But the statute also requires that the disqualification affidavit be timely filed, and here too, the motion is procedurally defective. The circumstances which are alleged to have demonstrated bias occurred from two weeks to as far back as two months before the filing of this motion. While it is true that the failure to file the affidavit 10 days before the time at which the matter is to be heard may be excused for "good cause",¹ the defendant has not acted with the requisite diligence in seeking the disqualification. See, Bradley v. School Board of City of Richmond, Va., 324 F.Supp. 439 (E.D.Va., 1971). As expressed by the Court in Bradley at page 443:

"The purpose, of course, of a time requirement as provided in Section 144 is to establish an essential procedural safeguard by impeding the use of Section 144 as a delaying tactic."

See, also, Peckham v. Ronrico Corporation, 288 F.2d 841 (1st Cir. 1961).

It may be said, of course, that it is inconsistent with the interests of justice in most cases to reject any motion purely on the basis of procedural technicalities. But our courts have long recognized that, in this sensitive area of claimed partiality on the part of a Judge, strict construction of the statutory provisions is essential to prevent abuse and to insure the orderly functioning of the judicial system. See for example, United States v. Womack, 454 F.2d 1337 (5th Cir. 1972); Peckham v. Ronrico Corp., 288 F.2d 841 (1st Cir. 1961); Scott v. Beams, 122 F.2d 777 (10th Cir. 1941), cert. denied 315 U.S. 809, 62 S.Ct. 794, 86 L.Ed. 1209; Town of East Haven v. Eastern Airlines, Inc., 304 F.Supp. 1223 (D.Conn.1969); United States v. Gilboy, 162 F.Supp. 384 (M.D.Pa., 1958). These policies would be enough to justify the denial of defendant's motion because of its procedural flaws alone. In this particular case, however, defendant's affidavit is wholly devoid of substantive merit as well.

The essential averment in the affidavit is that the Trial Judge was at one time, more than eleven years ago, a law partner of one of plaintiffs' counsel. In light of this former association, the affiant charges that by my decision to grant a continuance at the request of plaintiffs earlier in the case and my subsequent decision to deny a motion for a continuance by defendant, I have exhibited a bias in favor of the plaintiffs.

It is the Court's duty herein to pass upon the legal sufficiency of the facts alleged, accepting as I must the truth of the allegations themselves. United States v. Townsend, 478 F.2d 1072 (3d Cir. 1973). The facts in the affidavit, as stated in the leading case of Berger v. United States, supra, "must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment." Under the statutory authority, only "a personal bias or prejudice", founded upon an attitude of extrajudicial origin, can require recusal. Wolfson v. Palmieri, 396 F.2d 121 (2d Cir. 1968). Prior rulings of the Court cannot provide such a factual basis. Ex parte American Steel Barrel Co., 230 U.S. 35, 33 S.Ct. 1007, 57 L.Ed. 1379; see also, Brown v. Wilson, 363 F. Supp. 707, 710 (W.D.Pa., 1973) and cases cited therein. To demonstrate this necessary kind of personal bias, the affidavit must set forth more than mere adverse rulings since the statute authorizing disqualification was never meant to be a substitute for an appeal.²

More specifically, courts have held that rulings on continuances are insufficient to support a claim of bias or prejudice. See, United States v. Ming, 466 F.2d 1000 (7th Cir. 1972); Cuddy v. Otis, 33 F.2d 577 (8th Cir. 1929).

Therefore, excluding any consideration of such rulings in this case, there remains only the fact of my prior law partnership with one of the attorneys representing the plaintiffs. The affidavit makes reference to Title 28, Section 455, as a basis for disqualification and states that the Court, in the language of the statute, is "so related to or connected with" plaintiffs' attorney as to render it improper for me to sit on this case. No other factual allegations are made in this regard. The mere fact that a Judge was more than a decade ago a law partner of an attorney who later appears before him is patently insufficient to require disqualification. Such an allegation, by itself, in no way can give "fair support" to a charge of bias. To hold otherwise would mean that Judges would have to recuse themselves in every case in which a litigant could point to the single fact of a prior association with a party or his attorney and would set a precedent that would certainly prove troublesome, to say the least, to every member of the Federal Judiciary.³ It has been the policy of the Judges in this district to abstain from any case involving their former law firms for a period of two years after coming to the Bench. Certainly, a decision that could be construed to extend that restriction to ten years or more would unreasonably interfere with the functioning of this or any Court.

What has been said thus far would adequately dispose of the motion upon consideration of the supporting affidavit alone. However, defendant's counsel makes an additional argument in a supplemental brief, which, although it adds nothing to the factual averments of the affidavit, is deserving of some comment.

Essentially, counsel admits that a Judge's prior rulings cannot be the basis for a finding of bias and that mere former association with a litigant's attorney is insufficient to require disqualification, yet he nonetheless argues that, in this particular case, the two averments when viewed together combine to give the appearance of bias or a lack of impartiality.

This notion finds its expression in Canon 3(c)(1) of the Code of Judicial Conduct for United States Judges:

"A Judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned. . . ."

Commenting on this general principle, the Code's Reporter notes, as defense counsel has pointed out, that recusal should follow whenever the conduct alleged would lead "a reasonable man knowing all of the circumstances to the conclusion that the Judge's `impartiality might reasonably be questioned.'" (Emphasis added). Of course, this Court unequivocally endorses this ethical precept, and yet I have no doubt whatsoever that no lack of impartiality reasonably appears under the circumstances of this case.

As noted before, no additional facts are presented by the defendant to support its counsel's assertions. For purposes of determining whether disqualification under Section 144 is warranted, these legal arguments cannot provide the prima facie factual basis that a party's affidavit otherwise lacks. Subjective conclusions or opinions that bias or the appearance of impropriety may exist are insufficient to require a Judge's disqualification. United States v. Townsend, supra; Hodgson v. Liquor Salesmen's Local No. 2, of State of New York, 444 F.2d 1344 (2d Cir. 1971).

Defendant's dissatisfaction with the Court is derived from my denial of its Motion for a continuance in order to accommodate...