Hayes v. National Football League

• Decision Date: 17 January 1979
• Docket Number: No. 76-3911-AAH.,76-3911-AAH.
• Citation: 463 F. Supp. 1174
• Parties: Frederick Ryan HAYES, Plaintiff, v. NATIONAL FOOTBALL LEAGUE, an Unincorporated Association, San Francisco 49ers, a Limited Partnership, Oakland Raiders, a Limited Partnership, New England Patriots Football Club, Inc., a Massachusetts Corporation, Minnesota Vikings Football Club, Inc., a Minnesota Corporation, the Five Smiths, Inc., a Georgia Corporation, Baltimore Football, Inc., a Maryland Corporation, Highwood Service, Inc., a Michigan Corporation, Chicago Bears Football Club, Inc., an Illinois Corporation, Cincinnati Bengals, Inc., an Ohio Corporation, Cleveland Browns, Inc., a Delaware Corporation, Dallas Cowboys Football Club, Inc., a Texas Corporation, Empire Sports, Inc., a Colorado Corporation, the Detroit Lions, Inc., a Michigan Corporation, Green Bay Packers, Inc., a Wisconsin Corporation, Houston Oilers, Inc., a Texas Corporation, Kansas City Chiefs Football Club, Inc., a Texas Corporation, Los Angeles Rams Football Company, a Maryland Corporation, Miami Dolphins, Ltd., a Limited Partnership, New Orleans Saints, a Partnership, New York Football Giants, Inc., a New York Corporation, New York Jets Football Club, Inc., a Delaware Corporation, Philadelphia Eagles Football Club, a Limited Partnership, Leonard Tose, General Partner in the Philadelphia Eagles Football Club, Herbert Barness, John Firestone, Anne J. Firestone, Executrix of the Estate of Roger Firestone, and Walter Leventhal, Limited Partners in the Philadelphia Eagles Football Club, Pittsburgh Steelers Sports, Inc., a Pennsylvania Corporation, Chargers Football Company, a Limited Partnership, Chicago Cardinals Football Club, Inc., an Illinois Corporation, Pro-Football, Inc., a Maryland Corporation, Tampa Bay Buccaneers, Seattle Seahawks, Alvin Ray Rozelle, Carroll Rosenbloom, Chuck Knox, Norm Pollom, Don Klosterman, Jack Teele, Defendants.
• Court: U.S. District Court — Central District of California

463 F. Supp. 1174

Frederick Ryan HAYES, Plaintiff, v. NATIONAL FOOTBALL LEAGUE, an Unincorporated Association, San Francisco 49ers, a Limited Partnership, Oakland Raiders, a Limited Partnership, New England Patriots Football Club, Inc., a Massachusetts Corporation, Minnesota Vikings Football Club, Inc., a Minnesota Corporation, the Five Smiths, Inc., a Georgia Corporation, Baltimore Football, Inc., a Maryland Corporation, Highwood Service, Inc., a Michigan Corporation, Chicago Bears Football Club, Inc., an Illinois Corporation, Cincinnati Bengals, Inc., an Ohio Corporation, Cleveland Browns, Inc., a Delaware Corporation, Dallas Cowboys Football Club, Inc., a Texas Corporation, Empire Sports, Inc., a Colorado Corporation, the Detroit Lions, Inc., a Michigan Corporation, Green Bay Packers, Inc., a Wisconsin Corporation, Houston Oilers, Inc., a Texas Corporation, Kansas City Chiefs Football Club, Inc., a Texas Corporation, Los Angeles Rams Football Company, a Maryland Corporation, Miami Dolphins, Ltd., a Limited Partnership, New Orleans Saints, a Partnership, New York Football Giants, Inc., a New York Corporation, New York Jets Football Club, Inc., a Delaware Corporation, Philadelphia Eagles Football Club, a Limited Partnership, Leonard Tose, General Partner in the Philadelphia Eagles Football Club, Herbert Barness, John Firestone, Anne J. Firestone, Executrix of the Estate of Roger Firestone, and Walter Leventhal, Limited Partners in the Philadelphia Eagles Football Club, Pittsburgh Steelers Sports, Inc., a Pennsylvania Corporation, Chargers Football Company, a Limited Partnership, Chicago Cardinals Football Club, Inc., an Illinois Corporation, Pro-Football, Inc., a Maryland Corporation, Tampa Bay Buccaneers, Seattle Seahawks, Alvin Ray Rozelle, Carroll Rosenbloom, Chuck Knox, Norm Pollom, Don Klosterman, Jack Teele, Defendants.

No. 76-3911-AAH.

United States District Court, C. D. California.

January 17, 1979.

Pechner, Dorfman, Wolffe, Rounick & Cabot, by Leonard Schaeffer, Philadelphia, Pa., for plaintiff.

O'Melveny & Myers, by Joseph M. Malkin, Los Angeles, Cal., for defendants, National Football League, San Francisco 49ers, Oakland Raiders, New England Patriots Football Club, Inc., Minnesota Vikings Football Club, Inc., The Five Smiths, Inc., Baltimore Football, Inc., Highwood Service, Inc., Chicago Bears Football Club, Inc., Cincinnati Bengals, Inc., Cleveland Browns, Inc., Dallas Cowboys Football Club, Inc., Empire Sports, Inc., the Detroit Lions, Inc., Green Bay Packers, Inc., Houston Oilers, Inc., Kansas City Chiefs Football Club, Inc., Miami Dolphins, Ltd., New Orleans Saints, New York Football Giants, Inc., New York Jets Football Club, Inc., Philadelphia Eagles Football Club, Leonard Tose, Herbert Barness, John Firestone, Anne J. Firestone, Executrix of the Estate of Roger Firestone, Walter Leventhal, Pittsburgh Steelers Sports, Inc., Chargers Football Co., Chicago Cardinals Football Club, Inc., Pro-Football, Inc., Tampa Bay Buccaneers, Seattle Seahawks, and Alvin Ray Rozelle.

Munger, Tolles & Rickershauser, Los Angeles, Cal., and Hookstratten & Byrne, Beverly Hills, Cal., by Jefferey I. Weinberger, Los Angeles, Cal., for defendants, Los Angeles Rams Football Co., Carroll Rosenbloom, Chuck Knox, Don Klosterman, Jack Teele and Norm Pollom.

FINDINGS, CONCLUSIONS AND ORDER DENYING PLAINTIFF'S MOTION FOR DISQUALIFICATION OF TRIAL JUDGE

HAUK, District Judge.

This matter came on for hearing Monday, January 15, 1979, at 10:00 a. m., before the Honorable A. Andrew Hauk, United States District Judge, to whom the case, cause and proceedings herein¹ were heretofore assigned by lot under the rules, regulations and orders of this United States District Court for the Central District of California, and particularly General Order No. 104 thereof, upon the following papers and pleadings:

1. Document entitled "Notice of Motion to Disqualify Judge Hauk," filed December 20, 1978, signed by Leonard Schaeffer, Esq., and William H. Bishop, Esq., attorneys for plaintiff and dated December 8, 1978. And attached to said document were the following papers:

A. Document entitled "Memorandum of Points and Authorities in Support of Statement of Disqualification of Judge," signed by Leonard Schaeffer, Attorney for plaintiffs.

B. Document entitled "Certificate of Service."

C. Document entitled "Reporter's Transcript of Proceedings, Place: Los Angeles, California, Date: Monday, June 26, 1978," attached as Exhibit A to plaintiffs' Points and Authorities.

2. In reply thereto, defendant National Football League filed an opposition to the Motion to Disqualify Judge Hauk with Points and Authorities.

3. By separate document, defendants Los Angeles Rams Football Company, Carroll Rosenbloom, Chuck Knox, Don Klosterman, Jack Teele and Norm Pollom incorporated defendant National Football League's opposition as their own.

After full consideration of each and all of said pleadings and points and authorities therein contained, and the oral arguments made before the Court on Monday, January 15, 1979, and good cause appearing, the Court orally discussed the various contentions and made its oral order refusing to disqualify, recuse or excuse itself from further proceedings in this case, and noted that it would make and enter written Findings, Conclusions and Order, which it now does, as follows:

FINDINGS AND CONCLUSIONS

1. The contentions contained in the Memorandum of Points and Authorities of plaintiff's attorney for Disqualification of the Court are, and each of them is, legally insufficient under 28 United States Code 144.

Plaintiff here moves for disqualification under 28 U.S.C. § 144.² Under Section 144, the movant is required to file an affidavit stating the facts and the reasons for disqualification signed by the party. Also, this section requires that the affidavit be accompanied by a certificate of counsel of record stating that it is made in good faith. 28 U.S.C. § 144.

The only documents pertaining to this motion and filed by the plaintiff are those listed above. Plaintiff has not filed an affidavit signed by a party. Furthermore, plaintiff's Memorandum of Points and Authorities cannot fulfill the requirement of an affidavit under § 144 since it is well settled that any affidavit submitted pursuant to § 144 must be signed by a party. Giebe v. Pence, 431 F.2d 942, 943 (9th Cir. 1970).

Plaintiff's counsel of record has also failed to submit a certificate of good faith as required by Section 144.

Movant herein has utterly failed to comply with the most basic requirements of Section 144. In view of the explicit language of Section 144, denial of this motion for disqualification is warranted on the ground of lack of compliance with Section 144, in that plaintiff failed to file an affidavit stating the facts and the reasons for disqualification signed by the party, or a certificate of counsel of record stating that the motion is made in good faith. Galella v. Onassis, 487 F.2d 986 (2nd Cir. 1973); Giebe v. Pence, 431 F.2d 942, supra; Walters v. United States, 404 F.Supp. 996 (D.C.N.Y. 1975), aff'd 542 F.2d 1166 (2d Cir. 1976); United States v. Clark, 398 F.Supp. 341 (D.C.Pa.1975), aff'd 532 F.2d 745 (3d Cir. 1976).

2. Assuming the papers submitted by plaintiff's counsel had been signed and sworn to by the party, Frederick Ryan Hayes, they would still be legally insufficient under 28 United States Code, Section 144, and 28 United States Code, Section 455.

While the points already made are sufficient in and of themselves to require this Court to deny the motion by plaintiff's counsel for the Court to disqualify itself in this case, we will, for the purpose of the following discussion, assume that a proper affidavit had been filed stating the facts and reasons for disqualification as they appear in plaintiff's memorandum of points and authorities. Further we will assume, for purposes of this discussion, that a proper certificate of good faith had accompanied such a missing affidavit. Nevertheless, even assuming these to be the facts, which they obviously are not, it is just as certain that this affidavit would be legally insufficient under 28 U.S.C. § 144 and 28 U.S.C. § 455.³

In plaintiff's memorandum of points and authorities plaintiff's counsel sets forth two contentions for alleged disqualification of the Court:

(i) That the Court has already determined that the factual situation and holding in Chuy v. Philadelphia Eagles, 407 F.Supp. 717 (E.D.Pa.1976) should control the outcome of plaintiff's antitrust count.

(ii) That in denying petitioner's Request for Production of Documents, the Judge demonstrated an obvious pre-disposition upon the issues, and a specific dislike of both petitioner and his counsel.

In analyzing these contentions, the Court is cognizant of its duty and function in passing on the legal sufficiency of an affidavit for disqualification. Although the Court must pass on the legal sufficiency of the affidavit, the Judge against whom an affidavit of prejudice is filed cannot pass on the truth or falsity of the facts as stated in the affidavit but must take all factual allegations as true notwithstanding the Judge's desire to challenge the truth of the affidavit. Berger v. United States, 255 U.S. 22, 33, 41 S.Ct. 230, 65 L.Ed. 481 (1921); United States v. Bray, 546 F.2d 851 (10th Cir. 1976); United States v. Montecalvo, 545 F.2d 684 (9th Cir. 1976), cert. den., 431 U.S. 918, 97 S.Ct. 2184, 53 L.Ed.2d 229 (1977); Botts v. United States, 413 F.2d 41 (9th Cir. 1963); United States v. Tropiano, 418 F.2d 1069 (2d Cir. 1969); Lyons v. United States, 325 F.2d 370 (9th Cir. 1963), cert. den., 377 U.S. 969, 84 S.Ct. 1650, 12 L.Ed.2d 738 (1964).

With this in mind, let us analyze these two contentions.

First Contention of Plaintiff

It must be remembered that the alleged bias and prejudice, to be disqualifying, must stem from an extrajudicial source and result in an opinion of the merits on some basis other than...