Home Placement Service, Inc. v. Providence Journal Co., s. 83-1923

• Decision Date: 28 August 1984
• Docket Number: 84-1096,Nos. 83-1923,s. 83-1923
• Citation: 739 F.2d 671
• Parties: 1984-2 Trade Cases 66,100, 10 Media L. Rep. 2257 HOME PLACEMENT SERVICE, INC., et al., Plaintiffs, Appellants, v. PROVIDENCE JOURNAL COMPANY, Defendant, Appellee. HOME PLACEMENT SERVICE, INC., et al., Plaintiffs, Appellees, v. PROVIDENCE JOURNAL COMPANY, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 671

739 F.2d 671

1984-2 Trade Cases 66,100, 10 Media L. Rep. 2257

HOME PLACEMENT SERVICE, INC., et al., Plaintiffs, Appellants, v. PROVIDENCE JOURNAL COMPANY, Defendant, Appellee.

HOME PLACEMENT SERVICE, INC., et al., Plaintiffs, Appellees, v. PROVIDENCE JOURNAL COMPANY, Defendant, Appellant.

Nos. 83-1923, 84-1096.

United States Court of Appeals, First Circuit.

Argued May 10, 1984.

Decided July 11, 1984.

As Amended on Denial of Rehearing

Aug. 28, 1984.

Ralph J. Gonnella, Providence, R.I., with whom Ralph J. Gonnella, Ltd. Providence, R.I., was on brief, for Home Placement Service, Inc., et al.

Joseph V. Cavanagh, Jr., Providence, R.I., with whom Edward F. Hindle, Knight Edwards, and Edwards & Angell, Providence, R.I., were on brief, for Providence Journal Company.

Before COFFIN, BOWNES and BREYER, Circuit Judges.

BOWNES, Circuit Judge.

This action was brought pursuant to sections 1 and 2 of the Sherman Antitrust Act, 15 U.S.C. Secs. 1 and 2. Plaintiffs-appellants, Home Placement Service, Inc., et al. (Home Placement) appeal the district court judgment on three grounds: the judge's refusal to recuse himself; the award of only nominal damages against defendant-appellee, The Providence Journal Company (Providence Journal); and the allegedly erroneous calculation of appellants' attorney's fees.

This case has followed an unusual and rather tortuous procedural path. Home Placement's antitrust suit was based on the allegations that the Providence Journal monopolized the Rhode Island rental advertisement market and by refusing to accept classified rental referral advertisements from Home Placement violated sections 1 and 2 of the Sherman Act. Home Placement sought injunctive relief, damages and attorney's fees.

Prior to the start of trial on December 23, 1980, the parties stipulated that the record, including the evidentiary objections, in a factually similar case, Homefinders of America, Inc. v. Providence Journal Company, would be made part of the record in this case. ¹ Homefinders was tried by the same attorneys before the same district judge (Boyle, J.) who initially heard the instant case. In Homefinders the court found no violation of the Sherman Act and dismissed the case. We affirmed, holding that the newspaper, regardless of whether it was a monopoly, had a first amendment right and reasonable business justification for refusing to accept deceptive advertisements. Homefinders of America, Inc. v. Providence Journal Co., 621 F.2d 441, 444 (1st Cir.1980).

After hearing, the court dismissed the action in this case, holding that, "plaintiff's new evidence is a distinction without a difference .... The respective schemes of Homefinders and Homeplacement [sic] are Another judge (Selya, J.) handled the case on remand, 573 F.Supp. 1423. He ruled that he would determine damages on the basis of the record in Homefinders and that there would be no new trial on the question of damages.

                for purposes of this proceeding, indistinguishable."    On appeal, we reversed holding that the Home Placement advertisements, unlike those in Homefinders, were not deceptive and that plaintiffs had proven a violation of sections 1 and 2 of the Sherman Act. 2   We remanded "to determine the appropriate form of injunctive relief, if any is needed, and the amount owing in damages and attorney's fees."   Home Placement Service, Inc. v. The Providence Journal Company, 682 F.2d 274, 281 (1st Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1279, 75 L.Ed.2d 500 (1983)
                

Plaintiffs then filed a motion in the court of appeals asking for clarification of our remand order. We responded as follows:

1. The district court was entirely correct in observing that we did not order a new trial.

2. The court was essentially correct in considering plaintiffs "waived" any damage evidence that could reasonably have been discovered and was not offered. Basically plaintiffs must stand on the record.

3. Plaintiffs, however, could not be regarded as waiving evidence only thereafter available, and since the delay was occasioned by defendant, plaintiffs should be the ones to benefit, if there be such.

Nothing herein shall prevent the court from requiring any such new evidence to be presented by offer of proof, deposition, etc., as it may determine.

After our clarification issued, the district court requested and received an offer of proof from plaintiffs on after-acquired evidence. It rendered an opinion on October 27, 1983, holding that an injunction should issue and that there was insufficient evidence to support plaintiffs' damages claim. It also requested a fee application from plaintiffs within twenty days. On November 10, injunctive relief was ordered. The court, on the same day, awarded plaintiffs nominal treble damages in the amount of three dollars. Plaintiffs promptly appealed the damages award. Neither party has appealed the injunction.

Objections were made by defendant to plaintiff's fee application and hearings were held on December 6 and 21, 1983. The court awarded plaintiffs $36,575 in attorney's fees by order dated December 22.

RECUSAL

On December 19, 1983, prior to the final hearing and award on attorney's fees, plaintiffs filed a motion for recusal of Judge Selya and for leave to conduct discovery in furtherance of the motion. An affidavit of one of the plaintiffs, Joseph P. Muschiano, accompanied the recusal motion. It averred that a complimentary article about Judge Selya was published in defendant's newspaper, The Providence Journal, on November 13, 1983. The affidavit quoted from the article that Judge Selya "was active in Republican politics, serving several times as John Chaffee's [sic] campaign manager." John Chafee is, and has been for a number of years, a United States Senator from Rhode Island. A copy of the newspaper article was appended to the affidavit. The core of the affidavit stated:

The attached article was apparently researched and written while plaintiff's case was still sub judice before the Court on the questions of injunctive relief and damages. Additionally, the Court still has before it the question of attorney's fees and costs.

As revealed by the article, his Honor was formerly campaign manager for Senator John H. Chaffee. Upon information and belief John H. Chaffee:

(a) Was responsible for the appointment of his Honor to the bench.

(b) Was a former partner in the law firm of Edwards & Angell, the firm representing the Defendant, Journal in this case.

(c) Is a cousin of William Chaffee, a director and shareholder of the Defendant, Journal.

The above facts, in combination, make it appear that the Defendant, Journal, was and is currying special favor from the Court by taking advantage of prior personal relationships with Senator Chaffee and by preparing and publishing an article that is most complimentary to his Honor while this matter was still sub judice before the Court. I personally question whether these facts and factors infected the Court's decision in this case and whether the Court has or can remain impartial herein.

At the December 21 hearing on attorney's fees, Judge Selya, after a discussion on the record, denied the recusal motion because "I believe that this record is totally devoid of any facts which would constitute any type of minimally arguable factual basis on which an objective and reasonable man could doubt on the basis of what has been proffered by these plaintiffs the impartiality or fairness of this Court."

Although the motion itself does not specify its statutory basis, a memorandum of the plaintiffs filed along with the motion refers to 28 U.S.C. Sec. 455(a) which provides: "Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

We have construed 28 U.S.C. Sec. 455(a) as follows:

In essence, section 455(a) allows a judge to disqualify himself if a reasonable man would have factual grounds to doubt the impartiality of the court. Such a standard allows recusal when objective appearances provide a factual basis to doubt impartiality, even though the judge himself may subjectively be confident of his ability to be evenhanded.

Blizard v. Frechette, 601 F.2d 1217, 1220 (1st Cir.1979). See also, United States v. Kelley, 712 F.2d 884, 890 (1st Cir.1983); In re United States, 666 F.2d 690, 695 (1st Cir.1981); Brody v. President & Fellows of Harvard College, 664 F.2d 10, 11 (1st Cir.1981), cert. denied, 455 U.S. 1027, 102 S.Ct. 1731, 72 L.Ed.2d 148 (1982); United States v. Mirkin, 649 F.2d 78, 81 (1st Cir.1981); United States v. Parrilla Bonilla, 626 F.2d 177, 179 (1st Cir.1980); United States v. Cowden, 545 F.2d 257, 265 (1st Cir.1976). Other circuits have also interpreted 28 U.S.C. Sec. 455(a) as establishing an objective-reasonable person standard. See United States v. Nelson, 718 F.2d 315, 321 (9th Cir.1983); United States v. Dalfonso, 707 F.2d 757, 760 (3d Cir.1983); United States v. Norton, 700 F.2d 1072, 1076 (6th Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 1885, 76 L.Ed.2d 814 (1983); United States v. Miranne, 688 F.2d 980, 985 (5th Cir.1982), cert. denied, 459 U.S. 1109, 103 S.Ct. 736, 74 L.Ed.2d 959 (1983); United States v. Poludniak, 657 F.2d 948, 954 (8th Cir.1981), cert. denied, 455 U.S. 940, 102 S.Ct. 1431, 71 L.Ed.2d 650 (1982); Potashnick v. Port City Construction Co., 609 F.2d 1101, 1111 (5th Cir.), cert. denied, 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed.2d 22 (1980).

We have further ruled that there must be some reasonable factual basis to doubt the impartiality of the judge and that our review is limited to determining whether the trial judge abused his discretion in evaluating the recusal evidence. United States v. Parrilla Bonilla, 626 F.2d at 179; Blizard v. Frechette, 601 F.2d at 1221.

We now turn to what triggered the recusal motion, the newspaper article. ³ The article which covered an entire page focused on the Judge's home which had been built by a...