McClelland v. Gronwaldt

• Decision Date: 01 August 1996
• Docket Number: No. 1:95-CV-0931.,1:95-CV-0931.
• Citation: 942 F.Supp. 297
• Parties: Jerry C. McCLELLAND, Plaintiff v. Robert C. GRONWALDT, Individually and as Agent for Mobil Oil Corp., and National Union Fire Insurance Company of Pittsburgh, Pennsylvania, Defendant.
• Court: U.S. District Court — Eastern District of Texas

942 F.Supp. 297

Jerry C. McCLELLAND, Plaintiff v. Robert C. GRONWALDT, Individually and as Agent for Mobil Oil Corp., and National Union Fire Insurance Company of Pittsburgh, Pennsylvania, Defendant.

No. 1:95-CV-0931.

United States District Court, E.D. Texas, Beaumont Division.

August 1, 1996.

Glen W. Morgan, Reaud Morgan & Quinn, Beaumont, TX, for Plaintiff.

Gerald Wayne Reidmueller, Lipscomb Norvell, Jr., Benckenstein, Norvell & Nathan, Beaumont, TX, Alison H. Moore, Harrison Henry Yoss, Robert Wellenberger, Alison Holladay Moore, Thompson Coe Cousins & Irone, Dallas, TX, Michael Thomas Powell, Amy Dunn Taylor, Timothy T. McInturf, Haynes & Boone, Houston, TX, for Defendant.

MEMORANDUM OPINION

COBB, District Judge.

On December 6, 1995, Jerry C. McClelland, individually and as representative of a class of Plaintiffs, filed a Motion to Recuse Judge Howell Cobb from consideration of the above numbered matter. The Plaintiffs allege in their motion: (1) actual bias and prejudice justifying recusal under 28 U.S.C. § 144; (2) an appearance of impropriety justifying recusal under 28 U.S.C. § 455(a); and (3) circumstances mandating recusal under 28 U.S.C. § 455(b)(1), (2), and (4). This court finds that the Plaintiff's affidavit is legally insufficient to require or warrant recusal.

BACKGROUND

In December 1992, the Plaintiff, Jerry McClelland, filed suit in the 58th Judicial District, State District Court of Texas. Plaintiff alleged a breach of the duty of good faith and fair dealing, violation of Article 21.21 of the Texas Insurance Code, negligent handling claims, and intentional infliction of emotional distress arising from the improper handling of Workers' Compensation claims and conspiracy. The Plaintiff sought certification of a class of similarly situated plaintiffs and certification was finalized by the state court on October 10, 1995. This court found federal jurisdiction to be proper on November 16, 1995, when the Plaintiffs' Motion to Remand was denied. Now pending before the Court are the Plaintiffs' Motion to Expand the Class Action Horizontally, the Plaintiffs' Motion to Amend the Court's Order to Allow Interlocutory Appeal, and this Motion to Recuse this judge.

The Plaintiffs allege that expansion of the class could possibly expose the writer to certain legal liabilities stemming from his tenure as a partner at Orgain, Bell, and Tucker (OB & T). The Plaintiffs' Motion to Expand the Class seeks to allow the class to include individuals who had their Workers' Compensation claims adjusted between January 1, 1982 and December 31, 1995. The original class dates are from 1988 through 1993. The writer was appointed to the bench in 1985 after many years as a partner at OB & T. The Plaintiffs present the court with the affidavit of M.K. Molloy, a Mobil employee who claims that OB & T represented Mobil Oil with respect to workers' compensation claims between 1982 and 1985 (Molloy Affidavit). This affidavit was secured by the Plaintiffs' attorneys in connection with a different matter pending in state court at this time.

ANALYSIS

Preliminary Matters

Motions for disqualification under both §§ 144 and 455 are committed to the sound discretion of the trial court. Chitimacha Tribe of Louisiana v. Harry L. Laws Co., 690 F.2d 1157, 1166 (5th Cir.1982), cert. denied, 464 U.S. 814, 104 S.Ct. 69, 78 L.Ed.2d 83 (1983). The only inquiry on appeal is whether the trial court abused its discretion. Id. In addition, motions for disqualification must be timely. 28 U.S.C. § 144; United States v. York, 888 F.2d 1050, 1055 (5th Cir.1989). A party seeking to disqualify the trial judge must do so at the earliest moment after acquiring knowledge of the facts demonstrating the basis for such disqualification. Travelers Ins. Co. v. Liljeberg Enterprises, Inc., 38 F.3d 1404, 1410 (5th Cir.1994).

The Defendants have argued that the attorneys for the Plaintiffs had actual knowledge of OB & T's relationship with the Plaintiffs as long as ten years ago. While this may be true, the Plaintiffs filed their motion at the earliest possible moment. Until the Plaintiffs' Motion to Remand was denied, there was no way of knowing whether or not I would be the judge assigned the case. The Plaintiffs filed their motion to recuse soon after the motion to remand was denied and therefore the motion to recuse is timely. Disqualification Under Section 144

Section 144 provides in relevant part:

Whenever 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 (West 1993).

Once a motion to disqualify is filed under § 144, the judge must pass on the sufficiency of the affidavit, but may not pass on the truth of the matter alleged. Henderson v. Dept. of Public Safety and Corrections, 901 F.2d 1288, 1296 (5th Cir. 1990). The sufficiency of the affidavit is determined as a matter of law. Parrish v. Bd. of Commissioners of Alabama State Bar, 524 F.2d 98, 100 (5th Cir.1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976). If the affidavit is insufficient, the motion to disqualify should be denied. Henderson, 901 F.2d at 1296.

A legally sufficient affidavit must meet the following requirements: (1) the facts must be material and stated with particularity; (2) the facts must be such that if true they would convince a reasonable man that a bias exists; and (3) the facts must show the bias is personal, and not judicial, in nature. Henderson, 901 F.2d at 1296. 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. U.S. v. Balistrieri, 779 F.2d 1191, 1199 (7th Cir. 1985), cert. denied, 475 U.S. 1095, 106 S.Ct. 1490, 89 L.Ed.2d 892 (1986). The factual averments contained in the affidavit must be stated with particularity. The Court of Appeals for the Fifth Circuit has held that an affidavit is legally insufficient to meet the requirements of § 144 if it is based on "information and belief" rather than personal knowledge. Henderson, 901 F.2d at 1296. While the affidavit at issue in Henderson can be distinguished from the one in the case at bar, the principle remains that for an affidavit to be legally sufficient in the § 144 context, it must be specific in its allegations.

With respect to the particularity test, McClelland's affidavit indicates that he is making a charge of bias based on "information and belief." The Plaintiffs' affidavit illuminates some facts in the case with amazing particularity. However, the only evidence presented by the Plaintiff which might indicate bias is the affidavit of M.K. Molloy¹, which was secured by the Plaintiff's attorneys in preparation for an entirely different matter pending in state court.² There is nothing in the Plaintiff's affidavit which even remotely ties together the representations made in the Molloy affidavit with the case at bar. Certainly, OB & T may have represented Mobil or its subsidiaries in some workers' compensation matters. However, there is no indication that the cases referenced by the Molloy affidavit are related to the case at bar. There has been no evidence presented that the cases handled by OB & T between 1982 and 1985 are within the ambit of the present or expanded class action. It could be that OB & T represented only a subsidiary of Mobil, the employees of which are not and will not be class members. This Court refuses to make the unfounded leap in logic which is crucial to the Plaintiffs' motion.

Further, McClelland's affidavit fails the reasonable person test. The Fifth Circuit has consistently held that a reasonable person would not be convinced that bias exists based upon pure speculation. E.g., Chitimacha Tribe of Louisiana, 690 F.2d at 1167 (reasonable person would consider suggestion of partiality mere speculation not justifying disqualification where plaintiff merely makes nonspecific, conclusory allegations that judge may bear personal liability for matters in pending action based upon malpractice committed during judge's tenure as partner in his former law firm). The Plaintiffs allege no facts upon which a reasonable person could conclude that I am biased or even tempted to be biased. For instance, there is no allegation that I actually participated in or know anything about OB & T's representations of a party to the present action during the time period between 1982 and 1985. There is no factual allegation upon which a reasonable person could conclude that OB & T actually participated in a conspiracy or other malfeasance, if any, and that I was, in fact, likely to be subject to personal liability for that malfeasance, if any. There is simply not enough evidence presented to meet the reasonable person standard.

It is telling that the allegations of conspiracy in this motion go far beyond any allegations previously made in this litigation's two year history. In no pleading until this present motion to disqualify have the Plaintiffs ever alleged that law firms participating in litigation of the underlying workers' compensation claims participated in an alleged grand conspiracy to defraud Mobil employees.

Finally, the Plaintiffs have failed to make out a case that I am personally biased in this matter. McClelland has made only vague and conclusory allegations — as distinguished from the facts required by § 144 — about OB & T's prior representations and how I am biased based on my status as partner in OB & T between 1982 and 1985. The Plaintiffs merely allege that I may be subject to liability for a conspiracy. Such speculative, conclusory allegations without specific facts cannot justify disqualification....