Person v. General Motors Corp.

• Decision Date: 26 January 1990
• Docket Number: No. CIV-89-737C.,CIV-89-737C.
• Citation: 730 F. Supp. 516
• Parties: Joseph R. PERSON, Plaintiff, v. GENERAL MOTORS CORPORATION and Saginaw Division General Motors Corporation, Defendants.
• Court: U.S. District Court — Western District of New York

730 F. Supp. 516

Joseph R. PERSON, Plaintiff, v. GENERAL MOTORS CORPORATION and Saginaw Division General Motors Corporation, Defendants.

No. CIV-89-737C.

United States District Court, W.D. New York.

January 26, 1990.

David C. Steinhilber, Buffalo, N.Y., for plaintiff.

Raichle, Banning, Weiss & Stephens (Arnold Weiss, of counsel), Buffalo, N.Y., for defendants.

BACKGROUND

CURTIN, District Judge.

On June 26, 1989, the defendants removed this case from New York State Supreme Court, Erie County, to this court pursuant to 28 U.S.C. § 1441. See Item 1. Accompanying the removal petition was a letter from the defendants' attorney, Arnold Weiss, Esq., to the Clerk of the Court requesting that the case be assigned to a judge other than me. After the case was assigned to me through the standard random-assignment process, Mr. Weiss wrote to me and requested that I recuse myself. See Item 5. In a letter dated July 10, 1989, I attempted to assure counsel that I could proceed reasonably and fairly in the case, but told him that he should bring a formal motion for recusal if he felt otherwise. On July 21, 1989, counsel filed the motion for recusal that is now pending before the court. See Item 4. Although Mr. Weiss cites no statutory authority, the court will assume that the basis for the motion is 28 U.S.C. §§ 144, 455(a), and 455(b)(1).

In support of the motion, counsel appended only his own affidavit. In the affidavit, he makes several allegations in support of his argument that I should recuse myself from the present case as well as from "all other matters in which deponent appears as counsel." Item 4 at ¶ 20. Generally, he alleges that I must recuse myself because: 1) of actions that either I or my staff took, as well as future actions counsel intends to take, in connection with another case, Markel, et al. v. Scovill Manufacturing Company, et al., CIV-78-269A, id. at ¶¶ 2-3, 6-14;¹ 2) the pendency of the appeal in Markel "caused considerable consternation" among the judges of the United States Court of Appeals for the Second Circuit and "contributed materially to my sudden announcement ... that I was relinquishing my position as Chief Judge for the U.S. District Court for the Western District of New York, and my subsequent decision ... to accept Senior Judge status," id. at ¶ 16; 3) I have given "physical evidence" of my hostility toward him both in conversations that I have had with other attorneys and jurists and in my "obvious and undisguised anger, red-faced grimaces, criticisms, impatience and hostile reaction to deponent during Court appearances," id. at ¶ 16; 4) I supposedly awarded sanctions against deponent unjustly in another case, Greater Buffalo Press, Inc., et al. v. Federal Reserve Bank of New York, et al., CIV-78-27C, ___ F.R.D. ___ id. at ¶ 17; and 5) I supposedly made public comments and took public actions that were "adverse," and that "caused the Bar and Bench of the U.S. District Court for the Western District of New York and at the Supreme Court, to be fully aware of my unjustified personal dislike of deponent, and of my pervasive hostility to deponent," id. at ¶ 18.

DISCUSSION

Counsel argues that the foregoing establishes such bias and hostility that I should recuse myself from the present case as well as from any other cases in which he appears. After giving counsel's arguments due consideration, I have concluded that the motion should be denied.

28 U.S.C. § 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....

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists....

28 U.S.C. § 455 provides in relevant part:

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

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party....

Sections 144 and 455(b)(1) should be read in pari materia, that is, they should be construed together. Apple v. Jewish Hospital and Medical Center, 829 F.2d 326, 333 (2d Cir.1987). "The analysis is the same under both sections, that is, it looks to extrajudicial conduct as the basis for making such a determination, not conduct which arises in a judicial context." Id. See also In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1314 (2d Cir.1988), reh'g denied, 869 F.2d 116 (2d Cir.), cert. denied, ___ U.S. ___, 109 S.Ct. 2458, 104 L.Ed.2d 1012 (1989); In re International Business Machines Corp., 618 F.2d 923, 928 (2d Cir.1980), later proceeding, 687 F.2d 591 (2d Cir.1982); Davis v. Board of School Commissioners of Mobile County, 517 F.2d 1044, 1052 (5th Cir.1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976). Furthermore, "mere allegation that conduct is extrajudicial does not make it so. Extrajudicial conduct is not conduct arising geographically outside of the courtroom. Rather, it is conduct which arises from something outside of the events of the courtroom proceeding itself." Allen-Myland, Inc. v. International Business Machines Corp., 709 F.Supp. 491, 494 (S.D.N.Y.1989) (emphasis supplied).

The standard for recusal under both Section 144 and Section 455 is whether a reasonable person, knowing all the facts, would conclude that the court's impartiality might reasonably be questioned. Apple v. Jewish Hospital and Medical Center, 829 F.2d at 333 (construing §§ 144, 455(b)(1)); In re Drexel Burnham Lambert, Inc., 861 F.2d at 1313 (construing § 455(a)). See also Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194, 2201 n. 7, 100 L.Ed.2d 855 (1988). In general, unsubstantiated suggestions of personal bias or prejudice do not mandate recusal. See Willner v. University of Kansas, 848 F.2d 1023, 1027 (10th Cir.1988), cert. denied, ___ U.S. ___, 109 S.Ct. 840, 102 L.Ed.2d 972 (1989).

Counsel's application is insufficient for several reasons. First, he attempts in his affidavit to incorporate by reference the records of two other cases, see Item 4 at ¶¶ 2, 17, a practice that has no place in a motion for recusal. Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir.1987). If counsel believes that particular circumstances involving those cases are relevant to the present motion, he should have stated them with particularity. Id. In any event, prior adverse rulings are not sufficient cause for recusal. In re International Business Machines Corp., 618 F.2d at 929-30; Willner v. University of Kansas, 848 F.2d at 1028; United States v. Studley, 783 F.2d 934, 939 (9th Cir.1986). If counsel feels that my rulings in any other case were incorrect, he can appeal those rulings. See Ex parte American Steel Barrel Co., 230 U.S. 35, 44, 33 S.Ct. 1007, 1010, 57 L.Ed. 1379 (1913) (Motions for recusal were "never intended to enable a discontented litigant to oust a judge for adverse rulings made, for such rulings are reviewable otherwise....") (construing predecessor statute), quoted in In re International Business Machines Corp., 618 F.2d at 929. Moreover, to the extent that any of counsel's allegations regarding Markel and Greater Buffalo Press can be construed as referring to extrajudicial conduct, they are so thoroughly vague and unsubstantiated that they are virtually inconsequential for purposes of the present motion. Maier v. Orr, 758 F.2d 1578, 1583 (Fed.Cir.1985).

Second, the fact that I recused myself from Markel does not mandate that I must recuse myself from the present case. My decision to recuse myself was neither an acknowledgment of the legal sufficiency of counsel's motion in that case, nor a suggestion that I would not be able to act without bias or prejudice in future cases involving him. See, e.g., Wolfson v. Palmieri, 396 F.2d 121, 125 (2d Cir.1968) ("There are circumstances in which a judge may wish to recuse himself although a legally sufficient affidavit of bias and prejudice could not be presented against him.").

Third, the allegations contained in counsel's affidavit are either wholly conclusory or totally without factual support.² Counsel's suggestion that the appeal in Markel contributed in any way to my decisions to step down as Chief Judge and to take senior status is so artificial that it does not merit a response. In addition, recusal is not mandated by counsel's vague and unsupported allegations regarding unspecified hearsay statements. Willner v. University of Kansas, 848 F.2d at 1027. In this regard, I note also that counsel provides no clue as to the nature of the "physical evidence" that supposedly manifested itself in some of these unenumerated hearsay conversations. And even assuming arguendo that in the past I have treated counsel brusquely in court, that is insufficient to compel recusal. See In re International Business Machines Corp., 618 F.2d at 930-31; Rosen v. Sugarman, 357 F.2d 794, 799-800 (2d Cir.1966); In re Cooper, 821 F.2d 833, 838-39, 841, 843 (1st Cir.1987). As noted by Judge Frank in In re J.P. Linahan, Inc., 138 F.2d 650 (2d Cir.1943):

"A judge must ... shrewdly observe the stategems of the opposing lawyers, perceive their efforts to sway him by appeals to his predilections. He must cannily penetrate through the surface of their remarks to their real purposes and motives. He has an official obligation to become prejudiced in that sense. Impartiality is not gullibility. Disinterestedness does not mean child-like innocence. If the judge did not form judgments of the actors in those court-house dramas called trials, he could never render decisions."

Id. at 654, quoted in In re International Business Machines Corp., 618 F.2d at 930. Counsel's allegations are generally so vague, conclusory, and unsubstantiated...