McCann v. Communications Design Corp., Civ. No. B-89-164 (JAC).

CourtUnited States District Courts. 2nd Circuit. United States District Court (Connecticut)
Citation775 F. Supp. 1506
Docket NumberCiv. No. B-89-164 (JAC).
Decision Date28 June 1991
PartiesJohn J. McCANN v. COMMUNICATIONS DESIGN CORPORATION, Oliver P. MacKinnon, Jr., Thomas E. Minogue, Jr., and Westinghouse Communications Software, Inc.

775 F. Supp. 1506

John J. McCANN
v.
COMMUNICATIONS DESIGN CORPORATION, Oliver P. MacKinnon, Jr., Thomas E. Minogue, Jr., and Westinghouse Communications Software, Inc.

Civ. No. B-89-164 (JAC).

United States District Court, D. Connecticut.

June 28, 1991.


775 F. Supp. 1507
COPYRIGHT MATERIAL OMITTED
775 F. Supp. 1508
James J. Murray, Guy Heinemann, Murray & Hollander, New York City, James Mulvey, Mulvey & Koratash, Danbury, Conn., for plaintiff John J. McCann

Richard A. Horgan, Sheila A. Ozalis, Winthrop, Stimson, Putnam & Roberts, Stamford, Conn., for defendants Communications Design Corp. and Oliver P. MacKinnon, Jr.

James F. Stapleton, Joy Beane, Day, Berry & Howard, Stamford, Conn., for defendant Thomas E. Minogue, Jr.

Edward F. Hennessey, Katherine B. Larson, Robinson & Cole, Hartford, Conn., for defendant Westinghouse Communications Software, Inc.

RULING ON PLAINTIFF'S MOTIONS FOR RECONSIDERATION AND FOR RECUSAL

JOSÉ A. CABRANES, District Judge:

 CONTENTS
                INTRODUCTION ............................................................. 1508
                BACKGROUND ............................................................... 1509
                DISCUSSION ............................................................... 1521
                 A. The Discretion of the Court in Addressing Recusal Motions ......... 1521
                 B. The Relevant Standards for Recusal ................................ 1522
                 C. The Timeliness of Plaintiff's Recusal Motion ...................... 1524
                 D. The Requirement that the Bias be Extrajudicial .................... 1527
                 E. The Merits of Plaintiff's Recusal Motion .......................... 1529
                CONCLUSION ............................................................... 1533
                 A. Motion to Recuse .................................................. 1533
                 B. Motion for Reconsideration or in the Alternative for Certification. 1533
                

INTRODUCTION

It is inherent in the judicial process that a district judge makes decisions that disappoint and, occasionally, agitate, one party or another. In this case, for example, a simple pre-trial decision to try the issue of the statute of limitations separately from the merits of plaintiff's claims — and thereby to limit discovery on the merits until the statute of limitations issue is resolved — has provoked an increasingly frantic and seemingly endless series of efforts by plaintiff to frustrate the purpose of the court's decision. Plaintiff's efforts have culminated now in a series of ad hominem attacks on the court and on opposing counsel and wholly fabricated charges of conspiracy, all in an effort to drive the "offending" judge out of the case. Plaintiff has even referred cryptically to "the darkness of this court's intentions," and yet the record of this case clearly demonstrates that, if anything, it has been a question of hostility displayed toward the judge — not by the judge.

It would be relatively easy to reassign this case; both practice and natural predisposition would suggest to many of us that where a party is sufficiently unhappy with the presiding judge to move for that judge's recusal, one proper course would be to have the case transferred to a colleague. But the simple truth is that it would be injurious to our entire system of justice to reward a party who has made serious and wholly unsupported allegations of bias by giving that party precisely what he wants. Where there is no basis for recusal other than a litigant's unhappiness

775 F. Supp. 1509
with a judge's decisions, the presiding judge has an obligation to prevent "judge shopping" by refusing to recuse himself. As the record here amply reflects, there is not the slightest doubt that plaintiff has received fair and impartial consideration of his views throughout the entire history of this case. To reassign this case based on this record would suggest to any disappointed litigant that he may have a case reassigned simply because the presiding judge has ruled against him. This would not only be grossly unfair to the defendants in this case, but it would send a dangerous signal to other litigants

The ruling that follows may appear to be excessively fastidious, with several long extracts from hearing transcripts and other parts of the record. Plaintiff's accusations, however, require a meticulous response, and a review of the record is necessary in order to place in context the claims made in Plaintiff's Motion for Recusal of Hon. José A. Cabranes (filed May 20, 1991) ("Plaintiff's Recusal Motion") and Plaintiff's Motion for Reconsideration of the Order of April 29, 1991 or Alternatively for Certification Pursuant to 28 U.S.C. § 1292(b) (filed May 20, 1991) ("Plaintiff's 1991 Motion for Reconsideration").1 The record speaks for itself.

It is unfortunate that so much time and energy has been expended by counsel and by the court in such an unproductive exercise. However, plaintiff's accusations are serious, and a complete and decisive answer is in the public interest and, more particularly, in the interest of our system of justice.

For the reasons stated below, Plaintiff's Recusal Motion is denied and Plaintiff's 1991 Motion for Reconsideration is granted. Upon reconsideration, the court adheres in substantial part to the Discovery Order entered on April 29, 1991 ("April 29, 1991 Discovery Order"). See Amended Discovery Order entered today.

BACKGROUND

The complaint in this case was filed on March 28, 1989, and an amended complaint was filed on June 13, 1989. In the amended complaint, plaintiff alleges that he designed and developed a telephone management system called COM-NET in 1980 and 1981 in a joint venture with defendants Communications Design Corporation ("CDC"), Oliver P. MacKinnon, Jr. ("MacKinnon"), and Thomas E. Minogue, Jr. ("Minogue"). Plaintiff alleges that MacKinnon, with the aid and participation of Minogue, wrongfully deprived him of his ownership rights to COM-NET and of his rights to become a stockholder and director in CDC pursuant to an employment agreement. In April 1989, Westinghouse Communications Software, Inc. ("WCSI") purchased the assets of CDC with knowledge of the claims in the lawsuit that had been served on CDC, MacKinnon, and Minogue in March 1989. In June 1989, WCSI was served with the amended complaint and joined as a party to this action. Plaintiff claims that WCSI is derivatively liable for various actions of the other defendants and also claims that WCSI independently converted his property by virtue of its purchase.

Plaintiff asserts state law claims for breach of fiduciary duty, breach of contract, fraud, conversion, theft, equitable ownership, constructive trust and replevin, and federal law claims for violations of Section 10 of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and Rule 10b-5 promulgated thereunder, 7 C.F.R. § 240-10b-5, and of the Racketeer Influenced and

775 F. Supp. 1510
Corrupt Organizations Act, 18 U.S.C. § 1962(c). Plaintiff also seeks a declaration under 28 U.S.C. §§ 2201 and 2202 of his rights to COM-NET and of his rights in CDC. Defendants CDC and MacKinnon have, in their Answer (filed Apr. 12, 1989), counterclaimed for interference with an expectancy and for abuse of process

Defendants took the position early in this case that plaintiff's claims were barred by the applicable statute of limitations and the doctrine of laches. Consistent with that position, defendant WCSI filed a motion for protective order on August 17, 1989 — as did defendants CDC and MacKinnon on September 11, 1989 — seeking from the court an order preventing plaintiff from conducting discovery on matters unrelated to the statute of limitations and laches defenses. Plaintiff filed a written response on September 21, 1989 explaining the reasons for seeking the requested discovery. The court granted both motions for protective order at a hearing on September 27, 1989. See Transcript of Hearing of September 27, 1989 (filed Oct. 25, 1989) at 57-65. Pursuant to the colloquy with counsel at that hearing, an order was entered staying all discovery unrelated to the issue of the applicability of the statute of limitations to plaintiff's claims, and the order provided in pertinent part that "no further discovery shall be allowed of the defendants or of third parties by plaintiff of any computer program tapes, listings, codes or other proprietary computer program designs or information.... The plaintiff may move to reconsider this protective order after ruling on Motions for Summary Judgment by defendants on the ground of statute of limitations." Order (entered Oct. 5, 1989) ("Order of October 5, 1989").

Defendants filed motions for summary judgment in December 1989. Following the filing of plaintiff's memoranda in opposition in February 1990, and then of defendants' reply memoranda in February and March 1990, and finally of plaintiff's surreply memorandum on March 14, 1990, the court heard oral argument on March 16, 1990; the court denied defendants' motions for summary judgment on May 25, 1990. The court ruled that "where, as here, plaintiff alleges that defendants affirmatively acted to conceal the facts necessary to establish his cause of action, the limitations periods for his claims commence to run at the time that he actually discovered his causes of action.... Establishment of actual knowledge is too inherently factual to provide a basis for a motion for summary judgment" (citations omitted). Endorsement Order (entered May 25, 1990).

Pursuant to the Order of October 5, 1989 staying discovery and permitting plaintiff to file a motion for reconsideration of the stay following a ruling on defendants' motions for summary judgment, plaintiff filed an "Omnibus Discovery Motion" on June 6, 1990. The court's decisions on this motion, and on defendants' request (in turn) for a protective order and bifurcation at trial of the statute of limitations question and the merits, are the source of the ensuing hulabaloo, including a wide array of efforts by plaintiff to undo the...

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61 practice notes
  • Schmude v. Sheahan, No. 00 C 4580.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • March 29, 2004
    ...conduct arising or information learned from something outside the court's judicial capacity. See McCann v. Communications Design Corp., 775 F.Supp. 1506, 1527 (D.Conn.1991); see also Crenshaw v. Dywan, 34 F.Supp.2d 707, 709 (N.D.Ind.1999); Geneva Assurance Syndicate, Inc. v. Medical Emergen......
  • Dorato v. Smith, No. CIV 14–0365 JB/GBW
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • December 11, 2015
    ...(9th Cir.1981). Discovery issues, however, are generally not appropriate for interlocutory review. See McCann v. Commc'ns Design Corp., 775 F.Supp. 1506, 1534 (D.Conn.1991) (Cabranes, J.) (“[A]n order granting or denying discovery is ordinarily a non-appealable interlocutory order which is ......
  • ECKERT INTERN. v. Government of Republic of Fiji, Civ. A. No. 93-CV-457.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • September 24, 1993
    ...§ 1291, to be used "only in extraordinary cases" to "avoid protracted and expensive litigation." McKann v. Communications Design Corp., 775 F.Supp. 1506, 1534 (D.Conn.1991). This limited exception exists where the district court judge certifies that the issues "involved a controlling questi......
  • Affiniti Colo., LLC v. Kissinger & Fellman, P.C., Court of Appeals No. 19CA0574
    • United States
    • Colorado Court of Appeals of Colorado
    • September 12, 2019
    ...issued after reviewing materials because the issue did not involve an unresolved question of law); McCann v. Commc’ns Design Corp. , 775 F. Supp. 1506, 1533-34 (D. Conn. 1991) (discovery orders generally never present controlling questions of law).¶ 9 Having first articulated the general ru......
  • Request a trial to view additional results
61 cases
  • Schmude v. Sheahan, No. 00 C 4580.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • March 29, 2004
    ...conduct arising or information learned from something outside the court's judicial capacity. See McCann v. Communications Design Corp., 775 F.Supp. 1506, 1527 (D.Conn.1991); see also Crenshaw v. Dywan, 34 F.Supp.2d 707, 709 (N.D.Ind.1999); Geneva Assurance Syndicate, Inc. v. Medical Emergen......
  • Dorato v. Smith, No. CIV 14–0365 JB/GBW
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • December 11, 2015
    ...(9th Cir.1981). Discovery issues, however, are generally not appropriate for interlocutory review. See McCann v. Commc'ns Design Corp., 775 F.Supp. 1506, 1534 (D.Conn.1991) (Cabranes, J.) (“[A]n order granting or denying discovery is ordinarily a non-appealable interlocutory order which is ......
  • ECKERT INTERN. v. Government of Republic of Fiji, Civ. A. No. 93-CV-457.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • September 24, 1993
    ...§ 1291, to be used "only in extraordinary cases" to "avoid protracted and expensive litigation." McKann v. Communications Design Corp., 775 F.Supp. 1506, 1534 (D.Conn.1991). This limited exception exists where the district court judge certifies that the issues "involved a controlling questi......
  • Affiniti Colo., LLC v. Kissinger & Fellman, P.C., Court of Appeals No. 19CA0574
    • United States
    • Colorado Court of Appeals of Colorado
    • September 12, 2019
    ...issued after reviewing materials because the issue did not involve an unresolved question of law); McCann v. Commc’ns Design Corp. , 775 F. Supp. 1506, 1533-34 (D. Conn. 1991) (discovery orders generally never present controlling questions of law).¶ 9 Having first articulated the general ru......
  • Request a trial to view additional results

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