Mavis v. Commercial Carriers, Inc., CV 74-2708-AAH.

Citation408 F. Supp. 55
Decision Date21 November 1975
Docket NumberNo. CV 74-2708-AAH.,CV 74-2708-AAH.
CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
PartiesPaul A. MAVIS Plaintiff, v. COMMERCIAL CARRIERS, INC., a corporation, Defendant. COMMERCIAL CARRIERS, INC., a corporation, Counterclaimant, v. Paul A. MAVIS et al., Counterdefendants.

COPYRIGHT MATERIAL OMITTED

Walter H. Young and Young & Young, Los Angeles, Cal., for plaintiff.

James L. Hunt, Lynn H. Pasahow and McCutchen, Doyle Brown & Enersen, and Martin J. Rosen and Silver, Rosen, Fischer & Stecher, San Francisco, Cal., for defendant, Commercial Carriers, Inc.

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

HAUK, District Judge.

This matter came on for hearing Monday, November 17, 1975, at 1:30 p. 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. A letter addressed to said Judge Hauk, dated October 28, 1975, by Walter H. Young, attorney for plaintiff, with copies sent to defendant's counsel and to Chief Judge Stephens of this Court enclosing a copy of "REQUEST TO HON. A. ANDREW HAUK, JUDGE, TO EXCUSE HIMSELF FROM THE TRIAL OF THIS ACTION AND RETURN THE CAUSE FOR REASSIGNMENT." The letter further stated:

"I have not actually scheduled a Motion on this Request as it is my understanding that it is proper to call the facts to the attention of the Court in this matter, rather than in the form of a formal Motion.
If your Honor feels that this Request should be made in the form of a formal Motion, I will schedule the same accordingly."

This letter was received on October 28, 1975, and at that time the Court made its Order to the Clerk to file the letter and its enclosure and put it on the calendar as a "motion" under the Court's "17-day" Rule, Local Rule 3(e). Whereupon the Clerk, by Minute Order of October 30, 1975, set the matter for hearing on November 17, 1975, at 10:00 a. m., when it was continued to 1:30 p. m., because of the crowded motion calendar for that morning. See Appendix A attached.

2. Thereafter plaintiff's counsel filed Points and Authorities in Support of the "Request" for Disqualification, and a Supplemental Declaration of Plaintiff's Counsel, Walter H. Young (Appendix B attached).

3. In reply thereto, defendant filed a Response with Points and Authorities, and Affidavits of R. G. Furse and Edward T. Bowers, Executives of Texas Gas Transmission Corporation, the parent company of a corporation, American Commercial Lines which owns all of the stock of defendant Commercial Carriers, Inc. (Appendix C attached).

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, November 17, 1975, 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 Letter and Request of Plaintiff's Attorney For Disqualification of the Court Are, and Each of Them Is, Legally Insufficient Under Local Rule 1.8, as well as 28 United States Code 144.

The letter of plaintiff's said counsel, Walter H. Young, with its enclosure was submitted in violation of Local Rule 1.8 of the Central District of California, which provides as follows:

"1.8 Correspondence and Communications with the Judge:
Attorneys or parties to any action or proceeding should refrain from writing letters to the Judge or otherwise communicating with the Judge unless opposing counsel is present. All matters to be called to a Judge's attention should be formally submitted as hereinafter provided."

For this reason it is legally insufficient, but rather than waste time and paper, the Court ordered the Clerk, as stated above, to put it and its enclosure on the motion calendar under Local Rule 3(e) and it was so held on Monday, November 17, 1975. Counsel's failure to abide by Local Rule 1.8 was, therefore, permitted in this instance, and while it is legally insufficient, we are treating the letter as a motion.

However, since 28 U.S.C. § 144 requires that any party seeking to disqualify a Federal Judge must file a "timely and sufficient affidavit" of "the party" (not the attorney) and further that the affidavit of the party (not the attorney) must be accompanied by a certificate of counsel of record stating that it is made in good faith, it is clear beyond any doubt that the letter and request (or declaration, or affidavit whichever it may be) are both legally insufficient to meet the requirements of 28 U.S.C. § 144.2 The same legal insufficiency is found in the Supplemental Declaration of Attorney Walter H. Young. (Appendix B) All three are signed by the attorney (Walter H. Young) for the party and not by the party, and the affidavit, if it be such, as well as the supplemental declaration were not accompanied by a certificate of counsel of record stating that they were made in good faith. See Appendices A and B.

The Court is obliged to determine their legal sufficiency under 28 U.S.C. § 144. Berger v. United States, 255 U.S. 22, 33, 41 S.Ct. 203, 65 L.Ed. 481 (1921); 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). Since they are not legally sufficient, being signed and filed solely and only by the attorney, Walter H. Young, and not by the party, Paul A. Mavis, they are obviously legally insufficient.

(2) Assuming the Papers in Appendix A Had Been Signed and

Filed By The Party, Paul A. Mavis, They Are Still Legally Insufficient Under 28 United States Code 144 and 28 United States Code 455.

While we believe that the points already made would be sufficient in and of themselves to require this Court to deny a request by plaintiff's counsel that the Court disqualify itself in this case, we will, for the purpose of the following discussion, assume that the "Request" (Appendix A) is the affidavit of the party, and further that the failure to accompany it with a certificate of good faith by counsel of record for the party is not fatal. Nevertheless, even assuming these to be the facts, which they obviously are not, it is just as certain that neither the letter, nor the request (see Appendix A) nor the Supplemental Declaration of the attorney, Walter H. Young, (Appendix B) nor any of them, is or are legally sufficient under 28 U.S.C. § 144 and 28 U.S.C. § 455.

We note that in the "Request" (Appendix A) plaintiff's counsel sets forth two contentions for disqualification of the Court:

(i) That since the Court admittedly owns substantial common stock in Union Oil Company of California, and since defendant Commercial Carriers, Inc., is wholly owned by American Commercial Lines, which is, in turn, wholly owned by Texas Gas Transmission Corporation, which has engaged in joint ventures in offshore oil and gas exploration in the Gulf of Mexico with Union Oil Company of California, and has purchased gas from said Union Oil Company of California, the Judge has some sort of interest in defendant Commercial Carriers, Inc., which would serve to disqualify him under 28 U.S.C. § 455.
(ii) That certain statements of defendant's counsel made to plaintiff's counsel outside the presence, hearing and knowledge of the Judge, apparently at depositions and in other meetings of counsel out of Court, somehow constitute a circumstance which should disqualify the Judge under 28 U.S.C. § 455.

Let us analyze these two contentions by taking the second one up first.

It is absolutely clear from all of the papers filed, as listed hereinabove and set forth in Appendices A, B and C, that the Court was not present, did not hear and had absolutely no knowledge whatsoever of any statements made out of court by any counsel to any other counsel. It is perfectly plain that any such statements could not constitute grounds for disqualification of the Judge under 28 U.S.C. § 455.3

Turning now to the first contention of plaintiff's counsel, namely, that the Judge should have disqualified himself, because he owns stock in Union Oil Company of California which has engaged in joint ventures with and sold gas to Texas Gas Transmission Corporation, which wholly owns American Commercial Lines which, in turn, wholly owns defendant Commercial Carriers, Inc. Somehow, what plaintiff's counsel seems to say is that because the Judge owns stock in Union Oil Company, he cannot preside over, but must disqualify himself from, any and all proceedings which may involve a subsidiary, twice removed, of a corporation which has done business with Union. To state the contention is to refute it as legally insufficient on any sound or reasonable basis.

But let us be more specific and analyze each subsection of 28 U.S.C. § 455, assuming, once again, contrary to the facts, that a proper affidavit and certificate of probable cause were filed in this matter. With that assumption, there is no doubt that it is the duty of the Judge sitting in the case to make the decision as to whether or not the affidavits are sufficient. In doing so, the Judge cannot pass upon or dispute the truth of the factual allegations set forth in the affidavits. Berger, 255 U. S. 22, 33, 41 S.Ct. 230, 65 L.Ed. 481 (1921); Botts, 413 F.2d 41 (9th Cir. 1963); Tropiano, 418 F.2d 1069 (2d Cir. 1969); Lyons, 325 F.2d 370 (9th Cir. 1963), cert. den., 377 U.S. 969, 84 S.Ct. 1650, 12 L.Ed.2d 738 (1964), supra.

For the record, we feel constrained to...

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