McBeth v. Nissan Motor Corp. USA

• Decision Date: 12 April 1996
• Docket Number: Civ. A. No. 6:95-2755-3.
• Citation: 921 F. Supp. 1473
• Parties: Lewis E. McBETH, Plaintiff, v. NISSAN MOTOR CORPORATION U.S.A., Defendant.
• Court: U.S. District Court — District of South Carolina

921 F. Supp. 1473

Lewis E. McBETH, Plaintiff, v. NISSAN MOTOR CORPORATION U.S.A., Defendant.

Civ. A. No. 6:95-2755-3.

United States District Court, D. South Carolina.

April 12, 1996.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

James C. Anders, Columbia, South Carolina, Pete G. Diamaduros, Whitney, White & Diamaduros, Untion, South Carolina, for plaintiff.

Joel H. Smith, John F. Kuppens, Nelson, Mullins, Riley & Scarborough, Columbia, South Carolina, for defendant.

ORDER

GEORGE ROSS ANDERSON, Jr., District Judge.

This matter is before the Court on Defendant's Motion to Recuse. Under the best evidence rule, Fed.R.Ev. 1002, the Court strikes Defendant's Exhibit A to Defendant's Memorandum in Support of Motion to Recuse, replaces that exhibit with an authentic audiotape of the remarks, and denies the motion.

On August 22, 1995, Plaintiff filed his complaint against defendant alleging defects in a car that defendant distributed. Defendant timely answered. All pre-trial matters, except this motion, have been referred to Magistrate Judge Catoe.

On February 16, 1996 this Court held a hearing on Defendant's motion wherein the Court enunciated preliminary facts regarding this Motion. The parties were invited to respond to the Court's comments, and supplement the record as the parties felt appropriate, by March 15, 1996.

On March 15, 1996, Defendant filed Defendant's Supplemental Memorandum in Support of Motion to Recuse. On March 21, 1996, this Court held another hearing on the matter.

Defendant Nissan USA seeks recusal based on three things: 1) an out of court speech occurring two (2) years before the instant case was filed; 2) a telephone call pertaining to a prior case, occurring two (2) years before the instant case was filed, and over which there is a clear difference in the recall of the facts¹; and 3) prior rulings in prior cases none of which involve Nissan USA. Since no reasonable person, knowing all of the facts and circumstances, could conclude that a fair trial of Nissan USA is impossible or even unlikely, the motion is denied.

I. LAW PERTAINING TO DEFENDANT'S MOTION

Defendant moves for recusal based on 28 U.S.C. § 455(a). This section provides as follows:

Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.²

The standard under § 455(a) is objective reasonableness and is not to be construed to require recusal on spurious or loosely based charges of partiality. The legislative history of the section makes this clear.

No judge, of course, has a duty to sit where his impartiality might be reasonably questioned. However, the new test should not be used by judges to avoid sitting on difficult or controversial cases.

At the same time, in assessing the reasonableness of a challenge to his impartiality, each judge must be alert to avoid the possibility that those who would question his impartiality are in fact seeking to avoid the consequences of his expected adverse decision. Disqualification for lack of impartiality must have a reasonable basis. Nothing in the proposed legislation should be read to warrant the transformation of a litigant's fear that a judge may decide a question against him into a "reasonable fear" that the judge will not be impartial. Litigants ought not to have to face a judge where there is a reasonable question of impartiality, but they are not entitled to a judge of their own choice.

House Report No. 93-1453, adopting Senate Report No. 93-419, 3 U.S.Code Cong. & Admin. News, 93rd Cong., 2d Sess. 1974, pp. 6351-6363 at 6355.

Thus the test to apply in the § 455(a) context is "whether another with knowledge of all the circumstances might reasonably question the judge's impartiality." In re Beard, 811 F.2d 818 at 827 (4th Cir.1987); see also, United States v. Martorano, 866 F.2d 62 at 67 (3rd. Cir.1989).

It is not only the existence of bias but also the appearance of bias that is sought to be avoided. The gravamen of the test is "reasonableness".

"The nature of the bias must be personal rather than judicial. On review, the question is whether the judge abused his discretion in denying the motion. And it is not an abuse of discretion if the complaint is merely based upon the judge's rulings in the instant case or related cases or attitude derived from his experience on the bench." Cites omitted. Shaw v. Martin, 733 F.2d 304, 308 (4th Cir.1984).

In considering the facts supporting a motion to recuse under § 455(a), 1) the source and 2) the character of the basis for recusal must be considered. The disqualifying bias must stem from an extrajudicial source and result in an opinion on the merits in the instant action based on something other than what was learned during participation in the case. United States v. Grinnell Corp., 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966), Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921).

The "extrajudicial source" doctrine specifically applies in the § 455(a) context. Liteky v. United States, 510 U.S. 540, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). In Liteky, the Supreme Court provided extensive guidance on evaluating claims of bias under § 455. The Court there stated "that the `extrajudicial source' doctrine, as we have described it, applies to § 455(a)." Id. at ___, 114 S.Ct. at 1157, 127 L.Ed.2d at 490. The Supreme Court continued that given the jurisprudence of recusal, it is more proper to speak of the "extrajudicial source" factor as opposed to doctrine. Nevertheless, the Court provided guidance on analyzing recusal motions.

First, judicial rulings alone almost never constitute valid basis for a bias or partiality motion. See United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966). 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 (as discussed below) when no extrajudicial source is involved. Almost invariably, they are proper grounds for appeal, not recusal. Second, opinions formed by the judge on the basis of facts introduced in the course of current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display deep-seated favoritism or antagonism that would make fair judgement impossible. ... Not establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display. A judge's ordinary efforts at courtroom administration — even a stern and short tempered judge's ordinary efforts at courtroom administration — remain immune.

Liteky, 510 U.S. 540 at ___ _ ___, 114 S.Ct. 1147 at 1157-58, 127 L.Ed.2d 474 at 490-491.

Moreover, when the alleged source of bias arises in the context of judicial proceedings, recusal requires a showing that the bias arises from knowledge acquired outside such proceedings and displays deep-seated and unequivocal antagonism that would render fair judgment impossible. Liteky, 510 U.S. 540 at ___, 114 S.Ct. 1147 at 1158, 127 L.Ed.2d 474 at 492.

Thus, for any alleged bias arising out of this or prior proceedings, recusal is required only if a "fair trial is impossible." Id.

Defendant has alleged two (2) bases for recusal: 1) remarks at the Auto Torts Seminar; and 2) prior rulings in prior proceedings not involving Nissan USA. Defendant Nissan USA has not alleged specific bias against this Defendant.

Because of the basis for Defendant's Motion, it is incumbent on Defendant to show that a fair trial for this defendant is impossible. Liteky, Id.

This Court is mindful of the jurisprudence concerning recusal motions following adverse rulings by the trial court in prior proceedings. Generally, these "prior proceedings" involved the same party. See, e.g., United States v. Phillips, 664 F.2d 971 (5th Cir.1981). The focus is on any alleged bias or prejudice to the party and not counsel. In re Beard, supra; Davis v. Board of School Commissioners of Mobile County, 517 F.2d 1044 (5th Cir.1975).

Accordingly, as to the impact of prior rulings in prior cases that did not involve Nissan USA, that allegedly show bias against defense counsel in this case, and under the Supreme Court test, Defendant must show that a fair trial for Nissan USA is impossible in the context of this § 455(a) motion. Liteky, 510 U.S. 540, 114 S.Ct. 1147, 127 L.Ed.2d 474.

That is, to evaluate the impact of prior rulings in prior proceedings to this case, Defendant must show that "a reasonable person aware of all the circumstances would have doubts concerning the impartiality of the particular judge" so to render a fair trial to the instant defendant impossible. Liteky v. United States, 510 U.S. 540, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994); United States v. Martorano, 866 F.2d 62 at 67 (3rd. Cir. 1989).

The inquiry required of the Court then is this: Would a reasonable person with knowledge of all the facts and circumstances consider that the impartiality of this judge was so tainted as to make a fair trial for Defendant Nissan USA impossible?

II. DEFENDANT'S ALLEGATIONS OF BIAS

Defendant asserts partiality against defendants and defense counsel in general, and against the products liability team of Nelson, Mullins, Riley, & Scarborough (hereinafter "Nelson, Mullins"). Defendant relies on: 1) comments at the 1993 South Carolina Trial Lawyer's Association Auto Torts Seminar ("Auto Torts Seminar") held in Atlanta, Georgia; 2) a telephone call pertaining to a prior case Cameron v. General Motors that occurred on December 8, 1993; and 3) prior rulings in prior cases not involving Nissan USA concerning perceived discovery abuse. Of compelling interest is...