McCann v. Communications Design Corp.

• Decision Date: 08 August 1991
• Docket Number: Civ. No. B-89-164 (JAC).
• Citation: 775 F. Supp. 1535
• Court: U.S. District Court — District of Connecticut
• Parties: John J. McCANN v. COMMUNICATIONS DESIGN CORPORATION, Oliver P. MacKinnon, Jr., Thomas E. Minogue, Jr., and Westinghouse Communications Software, Inc.

775 F. Supp. 1535

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.

August 8, 1991.

James J. Murray, Guy Heinemann, 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.

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

RULING ON PLAINTIFF'S SECOND MOTION TO RECUSE

JOSÉ A. CABRANES, District Judge:

Well after Plaintiff's Motion for Recusal of Hon. José A. Cabranes (filed May 20, 1991) ("Plaintiff's First Recusal Motion") had been submitted for decision, and shortly before the court's decision was to enter, the court received a letter from Attorney James J. Murray that raised new issues — issues that, in Mr. Murray's view, "mandate this court's recusal from the McCann case ... as a technical matter...." Letter from Attorney James J. Murray (dated June 25, 1991 and docketed June 27, 1991) ("June 25 Letter"). Treating that letter as a new motion to recuse, the court directed opposing counsel to submit a response by July 3, 1991, by which date this second motion would be deemed submitted and ripe for decision. Defendants Communications Design Corporation ("CDC"), Oliver P. MacKinnon, Jr. ("MacKinnon") and Westinghouse Communications Software, Inc. ("WESTCOM") filed memoranda on July 3, 1991. After a review of the record, the court entered an endorsement order on July 5, 1991 denying this second motion to recuse and indicating that a ruling would follow. This is that ruling.

Background

Plaintiff's First Recusal Motion was denied by this court on June 28, 1991, 775 F.Supp. 1506 ("June 28 Ruling"). In the June 25 Letter, plaintiff's counsel informed the court that he had "just learned" of certain facts that he believes serve as an independent basis, "quite irrespective of ... Plaintiff's First Recusal Motion under other provisions," for recusal in this case. The June 25 Letter states that "it never crossed the minds of plaintiff or his counsel before Plaintiff's First Recusal Motion that such a situation sic might exist." June 25 Letter at 4. They "assumed that ... I ... would have learned of any interest such as that growing out of the Westinghouse solicitations and donations, my Yale Trusteeship and my spouse's professorship, and recused myself." Id. The June 28, 1991 ruling referred to this letter and to the allegations therein. 775 F.Supp. at 1509 n. 1. In the course of denying Plaintiff's First Recusal Motion, I reviewed the record at great length, see id. at 1509-21, in order to present a complete response to plaintiff's serious but untimely and unfounded accusations. I assume familiarity with the June 28, 1991 ruling in briefly outlining its holding below.

Plaintiff's First Recusal Motion alleged that 28 U.S.C. §§ 144 and 455 ("sections 144 and 455") required my recusal. In light of the applicable standards in the circumstances presented, see In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1312-14 (2d Cir.1988), cert. denied, 490 U.S. 1102, 109 S.Ct. 2458, 104 L.Ed.2d 1012 (1989), I found that (1) plaintiff's affidavit seeking the disqualification was untimely, (2) plaintiff did not allege "extrajudicial" conduct as required by sections 144 and 455, and (3) even if plaintiff's motion could be said to have been timely and could be said to have alleged extrajudicial conduct — which plainly was not possible — plaintiff had failed to sustain his burden of showing even an appearance of bias. See 775 F.Supp. 1506.

Plaintiff's second motion to recuse relies specifically upon sections 455(b)(4),¹ 455(b)(5)(iii),² and 455(a),³ and the definition of the term "financial interest" in those provisions. Plaintiff alleges that my affiliation with Yale University ("Yale") — I am a trustee of Yale and my wife is a Professor of Law at Yale Law School⁴ — means that I have a "financial interest in the subject matter in controversy or in a party to the proceeding," 28 U.S.C. § 455(b)(4), because Westinghouse Electric Corporation ("Westinghouse"), the parent company of defendant WESTCOM,⁵ is a "contributor of substantial funds to Yale." June 25 Letter at 1. In support of this claim, plaintiff cites a $20,000 grant to Yale from Westinghouse in fiscal year 1986 and claims that "thousands of dollars in scholarship funds to Yale College students" are given by Westinghouse each year. Id. Further, plaintiff claims that "solicitors of funds for Yale actively continue to seek to persuade Westinghouse to provide additional funds to Yale." Id.

Through a series of unsupported and dubious assumptions, plaintiff claims that since Westinghouse has made certain financial gifts to Yale, there exists here a disqualifying "financial interest" which requires my recusal. Id. at 2.

Finally, plaintiff claims that even if section 455(b)(4) did not mandate recusal, section 455(a) requires recusal because Westinghouse's relationship to Yale and my relationships to Yale give rise to an "appearance" of partiality. Id. at 3.

Discussion

I. Evidence of "Financial Interest"

Plaintiff did not submit an affidavit of any kind with what is, in effect, his second motion to recuse. Affidavits may be filed to support allegations under section 455, particularly to support a section 455(b)(1)⁶ claim of actual personal bias or prejudice. See Apple v. Jewish Hosp. and Medical Center, 829 F.2d 326, 333 (2d Cir. 1987). Although claims under section 455(b)(1) and section 144⁷ of actual bias or prejudice, are construed in pari materia, id., and an affidavit of bias is required by the plain language of section 144, an affidavit may not be required for claims of actual bias or prejudice based upon section 455(b)(1). Id.; see also United States v. Wolfson, 558 F.2d 59, 62 n. 11 (2d Cir. 1977); Lamborn v. Dittmer, 726 F.Supp. 510, 514 (S.D.N.Y.1989); cf. United States v. Sibla, 624 F.2d 864, 867-68 (9th Cir.1980) (suggesting that an affidavit is not required under section 455). It follows that an affidavit may not be required for claims under other subsections of section 455 for an appearance of bias or prejudice. Nonetheless, plaintiff has the burden of alleging specific facts to support his conclusory statements. Person v. General Motors Corp., 730 F.Supp. 516, 519 & n. 2 (W.D.N.Y.1990) (allegations "either wholly conclusory or totally without factual support" are "utterly inadequate to require recusal"). The untimely affidavit filed in support of Plaintiff's First Recusal Motion, see 775 F.Supp. at 1524-27, is not, in any event, relevant to this second motion to recuse.

Plaintiff has presented no affidavits or other documentation regarding the 1986 gift from Westinghouse to Yale or the "thousands of dollars in scholarship funds" allegedly given to Yale students by Westinghouse. Further, plaintiff fails to substantiate the claim that Westinghouse is a "contributor of substantial funds to Yale" or the suggestion that after 1986 Westinghouse gave and continues to give "substantial funds" to Yale.

Defendant CDC submitted a Memorandum in Response to Plaintiff's Counsel's Letter to this Court Dated June 25, 1991 Requesting Recusal (filed July 3, 1991) ("CDC's Response") and an Affidavit of Attorney Richard Horgan (filed July 3, 1991) ("Affidavit") in support thereof. Mr. Horgan states that he contacted the Office of the Vice President for Development and Alumni Affairs of Yale University ("Yale Development Office") inquiring what gifts, if any, Yale had received since January 1, 1986 from "Westinghouse Electric Corporation or any subsidiary or affiliate thereof or from any related foundation." Affidavit ¶ 2. According to Mr. Horgan, the Yale Development Office advised him on June 28, July 1 and July 2, 1991 that the records maintained by Yale indicate the following:

(i) Westinghouse gave Yale University $20,000 on or about March 25, 1986 to be used under the direction of Professor Narenda of the Department of Electrical Engineering in connection with a controlled engineering course; (ii) Westinghouse did not make any other gifts to Yale University in calendar 1986; (iii) Westinghouse did not make any gifts to Yale University in calendar 1987, 1988 or 1989; (iv) on or about July 5, 1990 Westinghouse gave $5,000 to Yale University for the purpose of assisting in the funding of a Yale project known as the Program On Non-Profit Organizations; (v) Westinghouse did not make any other gifts to Yale University in 1990; and (vi) Westinghouse has not made any gifts to Yale University in 1991 nor is it expected to do so.

Affidavit ¶ 2.

Mr. Horgan also stated that he had obtained copies of 1988-89 and 1989-90 Yale Development Reports containing lists of corporations and foundations that made grants or commitments to Yale of $25,000 or more during those years, Affidavit ¶ 3, and that Westinghouse is not listed as such a contributor on either list. Id. at Exhibits A & B.

Mr. Horgan also reports under oath that the Yale Development Office informed him on June 28 and July 2, 1991 that "Yale University does not consider Westinghouse to have been a significant donor in the past or to be a significant prospective donor in the foreseeable future." Affidavit ¶ 4. In fact, Exhibit A to the Affidavit indicates that gifts to Yale in 1989-90 totaled approximately $130,000,000. Thus, the $5,000 gift from Westinghouse in 1990 apparently represents .0038% of the total gifts to Yale for 1989-90 and .045% of the approximately $11,200,000 received during that year from corporate donors (after deducting matching gifts received by the Yale Alumni Fund, which Yale credits to the individual alumnus). Affidavit ¶ 4, Exhibit A.

Finally, Mr....