Manley v. Nat'l Prosource, Inc.
| Decision Date | 04 April 2013 |
| Docket Number | CIVIL ACTION NO. H-11-2408 |
| Parties | STEPHEN MANLEY, Plaintiff, v. NATIONAL PROSOURCE, INC., Defendants. |
| Court | U.S. District Court — Southern District of Texas |
The Court has received Plaintiff Stephen Manley's ("Plaintiff's") Motion to Recuse [Doc. # 178]. Plaintiff seeks to disqualify the undersigned from continuing to preside over this case. The motion lacks merit and is denied.
Plaintiff argues that the Court must recuse itself pursuant to 28 U.S.C. § 455 and § 144. "Substantively, the two statutes are quite similar, if not identical." Phillips, 637 F.2d at 1019. Both may be considered together. See MMR Corp., 954 F.2d at 1045-46.1 "Under either statute, the alleged bias must be 'personal', asdistinguished from judicial, in nature." Phillips, 637 F.2d at 1020 (citations omitted). "[T]he bias 'must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.'" Id. (citation omitted). It has been longstanding doctrine that "a motion for disqualification ordinarily may not be predicated on the judge's rulings in the instant case or in related cases, nor on a demonstrated tendency to rule any particular way, nor on a particular judicial leaning or attitude derived from his experience on the bench." Id. (). There is another fundamental principal guiding this Court. "'[A] federal judge has a duty to sit where not disqualified which is equally as strong as the duty to not sit where disqualified.'" Sensley v. Albritton, 385 F.3d 591, 599 (5th Cir.2004) (quoting Laird v. Tatum, 409 U.S. 824, 837 (1972)); see also Hoffman v. Caterpillar, Inc., 368 F.3d 709, 717 (7th Cir. 2004) (explaining there is a countervailing principle that "[a] trial judge has as much obligation not to recuse himself when there is no occasion for him to do so [under § 144] as there is for him to do so when the converse prevails." (citing United States v. Ming, 466 F.2d 1000, 1004 (7th Cir. 1972)).
Section 455(a) of Title 28 of the United States Code requires "[a]ny justice, judge or magistrate of the United States [to] disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Under this statute, if a reasonable person, cognizant of the relevant circumstances surrounding a judge's failure to recuse, would harbor legitimate doubts about that judge's impartiality, then the judge should find that Section 455(a) requires his recusal. See United States v. Anderson, 160 F.3d 231, 233 (5th Cir.1998) (citing Travelers Ins. Co. v. Liljeberg Enters., Inc., 38 F.3d 1404, 1408 (5th Cir. 1994)).
The alleged bias or prejudice must be personal and must stem from an extrajudicial source outside the proceeding at hand. See Liteky v. United States, 510 U.S. 540, 544-45 (1994) (citing United States v. Grinnell, 384 U.S. 563, 583 (1966)); see also In re Hipp, Inc., 5 F.3d 109, 116 n.24 (5th Cir. 1993); United States v. Merkt,794 F.2d 950, 960 (5th Cir. 1986) (citing United States v. Reeves, 782 F.2d 1323, 1325 (5th Cir. 1986)). As the United States Supreme Court has explained, "trial rulings have a judicial expression rather than a judicial source." Liteky, 510 U.S. at 545. Thus, "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion." Id. at 555 (Grinnell, 384 U.S. at 583); see also Hipp, 5 F.3d at 116 (); United States v. MMR Corp., 954 F.2d 1040, 1046 (5th Cir. 1992) (). "In and of themselves (i.e., apart from surrounding comments or accompanying opinion), they cannot possibly show reliance upon an extrajudicial source; and can only in the rarest circumstances evidence the degree of favoritism or antagonism required . . . when no extrajudicial source is involved." Liteky, 510 U.S. at 555.
"'[O]ne seeking disqualification must do so at the earliest moment after knowledge of the facts demonstrating the basis for such disqualification.'" United States v. Sanford, 157 F.3d 987, 988 (5th Cir. 1998) (quoting Travelers Ins. Co., 38 F.3d at 1410); see also United States v. Devine, 934 F.2d 1325, 1348 (5th Cir. 1991) (). This recusal determination is committed to the discretion of the district judge, and the denial ofsuch a motion will only be reversed upon the showing of an abuse of such discretion. See Garcia v. City of Laredo, Tex., 702 F.3d 788, 794-95 (5th Cir. 2012).
Section 144 provides that "[w]henever 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." 28 U.S.C. § 144; Netsphere, Inc. v. Baron, 703 F.3d 296, 314 (5th Cir. 2012) (quoting Patterson v. Mobil Oil Corp., 335 F.3d 476, 483 (5th Cir. 2003)). 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." 28 U.S.C. § 144. In each case, a party may file only one affidavit under Section 144. Id. The affidavit "shall be accompanied by a certificate of counsel of record stating that it is made in good faith." Id. "'[T]he alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.'" MMR Corp., 954 F.2d at 1045 (citations omitted)); see also In re Corrugated Container Antitrust Litig., 752F.2d 137, 145 (5th Cir. 1985) ().
"When a motion is filed under Section 144, the district court 'must pass on the legal sufficiency of the affidavit' without passing on the truth of the matter asserted." Netsphere, Inc., 703 F.3d at 315 (quoting Davis v. Bd. of School Comm'rs of Mobile Cnty., 517 F.2d 1044, 1051 (5th Cir. 1975)). "A legally sufficient affidavit must: (1) state material facts with particularity; (2) state facts that, if true, would convince a reasonable person that a bias exists; and (3) state facts that show the bias is personal, as opposed to judicial, in nature." Id. (quoting Patterson, 335 F.3d at 483); Phillips v. Joint Legislative Comm. on Performance & Expenditure Review of the State of Miss., 637 F.2d 1014, 1019 (5th Cir. 1981). "A judge should not accept conclusory allegations in determining whether the standard for recusal has been met and affidavits based on mere conclusions, opinions, or rumors are legally insufficient to require recusal." McClelland v. Gronwaldt, 942 F. Supp. 297, 300 (E.D. Tex. 1996) (citing United States v. Balistrieri, 779 F.2d 1191, 1199 (7th Cir. 1985) (cited Merkt, 794 F.2d at 961)); see also United States v. Sykes, 7 F.3d 1331, 1339 (7th Cir. 1993); Kinnear-Weed Corp. v. Humble Oil & Refining Co., 441F.2d 631, 634-35 (5th Cir. 1971) (). The factual allegations must fairly support the charge of bias or impartiality and must be specific-including definite times, places, persons, and circumstances. See Balistrieri, 779 F.2d at 1199 (citation omitted). The court must assume the truth of the factual assertions, but is not bound to accept the movant's conclusions as to the facts' significance. Id. at 1200; Phillips, 637 F.2d at 1019.
Plaintiff's affidavit [Doc. # 178], Exh. 1, filed pursuant to Section 144, is insufficient to trigger the requirement of a different judge's review of this case and Plaintiff's motion. Plaintiff makes no allegation that the Court holds any personal, rather than judicial, bias or malice against him. Plaintiff points repeatedly to judicial rulings and not to any improper motive or opinion derived from an extrajudicial source. To the extent Plaintiff's arguments are based on Section 144, his Motion to Recuse is denied.2
Plaintiff has not met his burden to show entitlement to recusal ordisqualification of the undersigned under Section 455.
First, Plaintiff's Motion repeatedly complains about substantive or procedural rulings made by the Court. As noted above, Plaintiff points only to judicial rulings and orders of the Court, not to any improper motive or opinion derived from an extrajudicial source.
For instance, Plaintiff takes issue with the Court's decision to allow Defendant National ProSource, Inc. ("ProSource") to file its Third Motion for Summary Judgment. The Third Motion was the first one in which the Court reached the merits of ProSource's challenges to many of Plaintiff's claims. The Court denied ProSource's First Motion for Summary Judgment [Doc. # 14] without prejudice because it was premature; it had been filed before meaningful discovery had occurred. The Court also did not reach the merits of ProSource's Second Motion for Summary Judgment, contrary to Plaintiff's assertions. Again, the ruling was to enable the parties to complete additional discovery and to permit Plaintiff to obtain final expert reports. This ruling was...
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