Rafferty v. NYNEX Corp., s. 93-7220

• Citation: 314 U.S. App. D.C. 1,60 F.3d 844
• Decision Date: 18 October 1995
• Docket Number: 93-7222,Nos. 93-7220,s. 93-7220
• Parties: , 130 Lab.Cas. P 57,956, 1995-2 Trade Cases P 71,066, 32 Fed.R.Serv.3d 448 Scott J. RAFFERTY, Appellant/Cross-Appellee, v. NYNEX CORPORATION, et al., Appellees/Cross-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 844

60 F.3d 844

314 U.S.App.D.C. 1, 130 Lab.Cas. P 57,956,

1995-2 Trade Cases P 71,066, 32 Fed.R.Serv.3d 448

Scott J. RAFFERTY, Appellant/Cross-Appellee, v. NYNEX CORPORATION, et al., Appellees/Cross-Appellants.

Nos. 93-7220, 93-7222.

United States Court of Appeals District of Columbia Circuit.

Argued March 7, 1995.

Decided July 21, 1995.

Rehearing and Suggestion for Rehearing In Banc Denied Oct.

18, 1995. ^*

On Appeal from the United States District Court for the District of Columbia (87cv01521).

Scott J. Rafferty, pro se.

Guy M. Struve, New York City, argued the cause, for appellees/cross-appellants. On brief, were Seth R. Lesser, New York City and Linda C. Thomsen, Washington, DC. Scott W. Muller, Washington, DC, entered an appearance, for appellees/cross-appellants.

Before: WILLIAMS, SENTELLE and HENDERSON, Circuit Judges.

Opinion for the court filed PER CURIAM.

PER CURIAM:

Appellant Scott J. Rafferty (Rafferty) sued Telco Research Corporation (Telco), his former employer, and NYNEX Corporation (NYNEX), Telco's parent company, alleging that he was fired because he knew that Telco was engaging in commercial activities that violated a government consent decree binding NYNEX. In his complaint, Rafferty alleged antitrust violations, breach of contract, misrepresentation and wrongful discharge. The district court granted summary judgment to Telco and NYNEX on all claims. Rafferty, a lawyer proceeding pro se, appeals, challenging the entry of summary judgment both on the merits and on the ground that the district court was biased against him and interfered with his ability to obtain counsel. All parties appeal the district court's denial of their motions for Rule 11 sanctions. We affirm the district court's grant of summary judgment to Telco and NYNEX, affirm the denial of Rafferty's Rule 11 sanctions motion and reverse the denial of Telco's and NYNEX's Rule 11 sanctions motion.

I. Background

NYNEX is a regional Bell Operating Company (regional company) subject to an antitrust consent decree entered in 1982. See United States v. American Tel. & Tel. (AT & T), 552 F.Supp. 131 (D.D.C.1982), aff'd sub nom. Maryland v. United States, 460 U.S. 1001, 103 S.Ct. 1240, 75 L.Ed.2d 472 (1983). In April 1986, NYNEX acquired Telco, which markets telecommunications management software and offers consulting services to businesses. That same month Telco hired Rafferty to serve as a senior vice-president in charge of Telco's consulting division. In November 1986, Telco discharged Rafferty.

Telco asserts that it discharged Rafferty for legitimate business reasons, including its decision to close the consulting division Rafferty had been hired to run. Rafferty's primary allegation is that he was fired because of his concerns that Telco's consulting services violated the AT & T consent decree. In June 1987, he sued Telco and NYNEX, alleging violation of the antitrust laws and of the 1982 consent decree, breach of contract, misrepresentation and wrongful discharge. Joint Appendix (JA) 39-53, 75-90. Telco and NYNEX moved for summary judgment. In three separate decisions, the district court entered summary judgment against Rafferty on all claims. JA 595-604, 682-90, 734-35.

In July 1990, the district court first rejected Rafferty's antitrust, consent decree, breach of oral contract and misrepresentation claims. Rafferty v. NYNEX Corp., 744 F.Supp. 324 (D.D.C.1990) (JA 595). ¹ In April 1992, after additional briefing by the parties, the court rejected Rafferty's wrongful discharge claim. JA 682. In March 1993, the judge recused himself from the case. Appendix, Sealed Volume at 1016. [Material under seal.] Another judge was then assigned to the case.

In April 1993, the court held a status conference with the parties. JA 724-33. At the conference, the court scheduled a hearing for October 22, 1993, and stayed all proceedings until then. JA 727. The court ordered that Rafferty, then without counsel, could show any prospective counsel all documents in the court's public file. JA 728. If Rafferty found counsel willing to take the case, the court indicated that it would consider a motion to allow counsel to review all materials not previously available to him. Id. At the conclusion of the October 22, 1993 hearing (JA 736-55), the court dismissed Rafferty's remaining claim alleging breach of his employment contract. JA 734. He also denied Telco's and NYNEX's motion for Rule 11 sanctions against Rafferty, explaining, "I would ordinarily consider an award of sanctions in this case, given what I believe is an egregious abuse of the judicial process. But it seems to me that the defendants rose to the bait every time." JA 749.

Rafferty now appeals. He contends that all of the district court orders should be overturned because the court was biased and because it interfered with his ability to obtain counsel. He maintains that five ² of his six claims were improperly dismissed. Rafferty asks this Court to vacate the district court orders and to transfer his case from the District of Columbia to the Eastern District of Virginia. Further, he requests sanctions against Telco and NYNEX. Telco and NYNEX cross-appeal the district court's denial of their motion for sanctions against Rafferty.

II. Discussion

A. Alleged Judicial Improprieties

Rafferty maintains that the original district judge was biased against him and that the bias "continued to taint the proceedings" under the replacement judge. Appellant's Brief at 16. The argument is without merit. Rafferty offers no evidence that the judge had a conflict of interest or was biased; he merely infers bias from unfavorable judicial rulings and from court delays in ruling on pending motions. "[J]udicial rulings ... can only in the rarest circumstances evidence the degree of favoritism or antagonism required ... when no extrajudicial source is involved." Liteky v. United States, --- U.S. ----, ----, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474 (1994). Opinions formed by a judge "do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible." Id. Because Rafferty has produced no evidence to satisfy the standard, we conclude that the judge's recusal decision was within his discretion to make. [Material under seal.] ³ We further conclude that no bias infected the proceedings conducted by either judge. ⁴

Rafferty also argues that both district judges improperly interfered with his efforts to obtain counsel and to represent himself pro se. Initially, Rafferty was represented by Mark C. Del Bianco and R. Alan Luberda. In March 1988, the district court denied Del Bianco's and Luberda's first motion for leave to withdraw as Rafferty's counsel. JA 121-25. The court also struck Rafferty's pro se notice of appearance and directed the clerk of court to strike all papers filed by Rafferty himself. JA 123-24. ⁵ The March 1988 order further provided that "[o]nly those papers filed and signed by plaintiff's counsel of record will be accepted for filing." JA 124. Seven months later Del Bianco and Luberda again moved for leave to withdraw. JA 126-33. ⁶ This time Rafferty supported his counsel's withdrawal. JA 138-39. In October 1988, the court granted the motion, noting that Rafferty had "so destroyed the attorney-client relationship that the Court has no choice other than to permit the withdrawal." JA 136-37. ⁷

Rafferty contends that although the judge allowed Del Bianco and Luberda to withdraw, he refused to let Rafferty proceed pro se. The order, however, explicitly contemplated that Rafferty could represent himself. It provided that "[i]n order to minimize the disruption and the prejudice to the defendant that will be caused by the entry of new counsel or Mr. Rafferty as pro se counsel at this stage of the proceedings," the discovery agreements negotiated by Del Bianco and Luberda would remain in effect. JA 137 (emphasis added). Indeed, we denied as moot Rafferty's earlier petition for a writ of mandamus directing the district judge to permit him to appear pro se because "the district court has permitted Mr. Rafferty to appear pro se." In re Rafferty, 864 F.2d 151, 153 (D.C.Cir.1988). Rafferty now contends that the clerk of court did not accept his pleadings, apparently under the mistaken belief that the March 1988 order remained in effect. Rafferty has produced no evidence, however, that if the clerk of court refused to accept his filings, Rafferty ever called the problem to the judge's attention.

Rafferty further maintains that the second judge also prevented him from obtaining substitute counsel by prohibiting him from showing prospective counsel documents covered by a protective order to which he had stipulated. JA 56-64. After the first judge recused himself, the second judge ruled that Rafferty could show potential replacement counsel only those documents in the court's public file, not documents covered by the protective order. JA 728. Rafferty has not explained how the documents in the public file were inadequate to give potential replacement counsel a basic understanding of the case. Moreover, the district court noted that it would consider a motion by Rafferty to allow prospective counsel to review all materials, including those not previously available. Id. There is no evidence in the record that Rafferty so moved. Finally, Rafferty could have asked Telco and NYNEX to allow prospective counsel to review protected documents. There is record evidence that Telco and NYNEX did grant permission to prospective counsel to review protected documents the one time Rafferty requested it. JA 592. In short, there is no basis for us to conclude that the district court prevented Rafferty from hiring substitute counsel.

B. Merits

In three separate decisions the district court granted summary judgment to Telco and NYNEX on all of Rafferty's claims. We review these decisions de novo. Diamond v. Atwood, 43...