Danielson v. Winnfield Funeral Home of Jefferson, Civ. A. No. 80-815.

Decision Date16 April 1986
Docket NumberCiv. A. No. 80-815.
Citation634 F. Supp. 1110
PartiesAllen H. DANIELSON, Jr., Trustee of the Estate of James H. Dulaney v. WINNFIELD FUNERAL HOME OF JEFFERSON, INC., et al.
CourtU.S. District Court — Eastern District of Louisiana


Samuel Ethridge, New Orleans, La., for Dulaney.

A.W. Wambsgans, Metairie, La., for Anthony Soto, et al.

Camille Gravel, Jr., Anna Dow and Susan Theisin, Alexandria, La., for Winnfield Funeral Home of Jefferson, Inc., et al.


SEAR, District Judge.

Plaintiff Claims

Plaintiff James H. Dulaney brought this action under the Court's special federal question jurisdiction. He alleged two separate causes of action under the Civil Rights statutes.

First, he alleged that certain private defendants, all but one of whom are black citizens or corporations owned by black citizens, conspired with Jefferson Parish Sheriff Deputies to deprive him of personal property which he alleged he owned and was located in or on the premises 11112 Jefferson Highway in Jefferson Parish, Louisiana. He claims that the private defendants conspired with the sheriff's deputies who, acting under color of state law, subjected him to the deprivation of rights and privileges protected by the Constitution and laws of the United States, namely, the right not to be deprived of his property without due process of law in violation of Title 42 U.S.C. § 1983.

Second, plaintiff alleged a conspiracy to deprive him of equal protection of the laws in violation of Title 42 U.S.C. § 1985(3).

Following eight days of trial before a jury the plaintiff rested his case on the liability issues. On motion of defendants, I directed a verdict against the plaintiff and in favor of the defendants, dismissing plaintiff's claims at his costs. I found that plaintiff's claims under both §§ 1983 and 1985(3) were "frivolous, unreasonable and groundless." Plaintiff appealed to the Fifth Circuit Court of Appeals which, without oral argument, affirmed, 751 F.2d 1257, without written opinion, my order directing the verdict.

The Motions

Defendants now seek to recover court costs and attorneys' fees from the plaintiff pursuant to 42 U.S.C. § 1988 and from plaintiff's counsel in accordance with 28 U.S.C. § 1927.

Prior to the hearing on defendants' motion, plaintiff filed a motion to recuse me from the hearing because, he alleged, I had a personal bias and prejudice against him. Plaintiff and his attorney both filed affidavits setting forth events that occurred during the pre-trial and trial which, they contend, established my prejudice against the plaintiff.

Merits Of Motion to Recuse

For the purpose of this motion to recuse, I must accept the facts alleged in plaintiff and his counsel's affidavits as absolutely true.1 And it is from these facts that plaintiff argues that I am personally biased against him and must recuse myself from further proceedings in this case. However, I find that plaintiff has not met his statutory burden on this issue and that his motion must therefore be denied.

The pertinent statutes here are 28 U.S.C. §§ 144 and 455(a).2 Section 144 provides the legal procedure to be followed in requesting the recusal of a presiding judge, while Section 455 provides the legal standard against which such a motion is to be measured.3

The mere filing of a motion and affidavit under these statutes does not mean that the judge must recuse himself.4 A motion to recuse must be strictly construed for form, timeliness, and sufficiency in order to guard against the danger of frivolous attacks on the orderly process of justice.5 The determination of the legal sufficiency of the affidavit is a matter addressed to the sound discretion of the trial court.6

My examination of plaintiff's motion reveals that he has not followed the statutory formalities.7

To be timely, a motion to recuse must be filed as soon as practicable after discovery of the allegedly disqualifying facts.8 The motion here was filed more than four and one-half months after defendants' motion for attorneys' fees was filed and was based upon events which occurred more than a year before that. I find, therefore, that the plaintiff has not complied with the timeliness requirement.

The final issue for determination is whether plaintiff and his counsel's affidavits are legally sufficient. I do not believe that they are.

An analysis of the sufficiency of the affidavit must begin from the proposition that the trial judge is presumed to be impartial and to have sufficient integrity to conduct an error free trial.9 Therefore, the burden upon the mover to show that the facts are otherwise is "substantial."10 The affidavit must identify and carefully delineate the time, place, persons, occasions and circumstances supporting the mover's belief of bias or prejudice.11 The bias to be demonstrated must be personal bias against the moving party, as opposed to judicial bias,12 and the bias must be extrajudicial in origin.13 By this it is meant that the alleged attitude and preconception on the part of the judge must arise from a source beyond the four corners of the courtroom, and not from his participation in the case. The only exception to this rule recognized in this Circuit is "where such pervasive bias and prejudice is shown by otherwise judicial conduct as would constitute bias against a party."14 The judge is permitted to fully express himself on legal matters,15 and adverse rulings against the moving party cannot serve as a basis for disqualification.16 Criticism directed against the moving party, his attorney or a witness which does not indicate an opinion on the merits of the litigation is held not to be a valid ground for recusal,17 although it may constitute error if made in the presence of a jury.18

Proceeding from these basic rules of construction and application, I can reach no other conclusion than that plaintiff and his counsel's affidavits are legally insufficient to show a disqualifying bias on my part. My rulings on the various motions to continue were legal decisions which may not serve as a basis for disqualification.19 The affidavits' description of my comments to Mr. Dulaney in court does not support the conclusion that I am personally biased against him.20 The affidavits do not recite a single word as having been said that would indicate any prejudice towards the plaintiff.

Moreover, the allegations contained in the affidavits were presented on appeal to the Fifth Circuit which considered them and found no error in my conduct. I conclude that the affidavits do not set forth sufficient facts to show personal bias on my part against the plaintiff.

According to the controlling jurisprudence of this Circuit,21 in order to require disqualification of a judge, the facts must be such that they would convince a reasonable man that bias against a party exists. The facts in these affidavits do not warrant this conclusion. Therefore, under the Fifth Circuit precedents, I must not disqualify myself, but rather must conduct the trial.

No judge has a proprietary interest in any case, and I have no special desire to hear the motions in this one. The imposition of costs and fees is not a popular assignment. It involves considerable effort, long hours and the resolution of difficult problems. I am satisfied that there are no statutory or other reasons for me to disqualify myself. Moreover, to allot the case to another judge simply because defendant requests it would then create the very problem the statutes are designed to avoid: litigants and judges should know exactly when a judge is disqualified. A judge should disqualify himself in those cases contemplated by the statutes and in no others, for the parties are not given a peremptory challenge to the judge. In addition, allotment of the case would mean that some other judge would be required to hear what I have already heard and that with which I am thoroughly familiar; those litigants whose cases are already set in that judge's court would be required to wait.

Accordingly, plaintiff's motion to recuse me is DENIED.

Motion For Attorneys' Fees

Plaintiff filed his action on March 7, 1980. Trial began December 12, 1983.

The evidence in the case revealed that in November, 1977, plaintiff Dulaney was employed by Winnfield Life Insurance Company, Incorporated and Winnfield Funeral Home to operate a business that was being conducted by both companies at the premises 11112 Jefferson Highway in Jefferson Parish, Louisiana. The plaintiff continued in their employ until December 18, 1979 when he was verbally discharged. In a letter dated December 20, 1979, Dulaney was instructed to vacate the premises within three days and turn over all insurance matters and monies to Mr. Adams, the company representative.

Instead of vacating the premises as he was instructed to do, Dulaney, on December 22, 1979, ordered Adams, the representative of the owners of the business, not to enter the premises. He then sought the aid of the sheriff of the parish to help him prevent the representative of the lawful owner from entering upon the premises which it owned and in which it operated its business.

The evidence showed that on December 22, 1979, a sheriff's deputy was summoned to the premises by Dulaney who showed him an occupational license which he told the deputy gave him the right to possession of the property. Dulaney then sought the intervention of the sheriff's deputy to forcibly exclude the representatives of the business from the premises. The evidence further showed that there was an angry exchange between Dulaney and Adams in which threats of bodily harm were exchanged.

On December 24, 1979, the defendant Bandaries, apparently the only white private defendant, accompanied by Messrs. Adams and Williams, the employees of Winnfield Life Insurance Company, visited the Sheriff's Office in Jefferson Parish and notified the sheriff that the property at 11112 Jefferson Highway was owned by Samuel...

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  • Kordenbrock v. Scroggy
    • United States
    • U.S. District Court — Eastern District of Kentucky
    • February 16, 1988
    ...those cases contemplated by statutes; parties are not given a peremptory challenge to the judge. Danielson v. Winnfield Funeral Home of Jefferson, Inc., 634 F.Supp. 1110, 1116 (E.D.La.1986) affirmed in part 820 F.2d 1222 (5th Cir.1987). Instead of voir diring the trial judge, a recusal moti......
  • Flynn v. Dyzwilewski
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    • U.S. District Court — Northern District of Illinois
    • September 19, 1986
    ...that bias exists, accompany the motion. The procedure must be strictly complied with. See, e.g., Danielson v. Winnfield Funeral Home of Jefferson, Inc., 634 F.Supp. 1110 (E.D.La.1986). Flynn has not filed such an affidavit. We therefore treat the question on our own motion under the more ge......
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    ...a motion to disqualify as soon as practicable after discovery of the allegedly disqualifying facts. Danielson v. Winnfield Funeral Home of Jefferson, Inc., 634 F.Supp. 1110 (E.D.La.1986), aff'd in part, Dulaney v. Winnfield Funeral Home, 820 F.2d 1222 (5th Cir.1987) (Table, No. Since formal......
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