Shank v. American Motors Corp.

• Decision Date: 10 November 1983
• Docket Number: 82-2486.,Civ. A. No. 82-1794
• Citation: 575 F. Supp. 125
• Parties: Earl L. SHANK and Patricia Ann Shank, Individually, and Patricia Ann Shank, as Administratrix of the Estate of Sherry Lee Shank, Deceased v. AMERICAN MOTORS CORPORATION and Jeep Corporation and Donald Pusey. Robert Timothy BENNER v. JEEP CORPORATION and American Motors Corporation.
• Court: U.S. District Court — Eastern District of Pennsylvania

575 F. Supp. 125

Earl L. SHANK and Patricia Ann Shank, Individually, and Patricia Ann Shank, as Administratrix of the Estate of Sherry Lee Shank, Deceased v. AMERICAN MOTORS CORPORATION and Jeep Corporation and Donald Pusey.

Robert Timothy BENNER v. JEEP CORPORATION and American Motors Corporation.

Civ. A. Nos. 82-1794, 82-2486.

United States District Court, E.D. Pennsylvania.

November 10, 1983.

Garland D. Cherry, Media, Pa., for Shank.

Robert E. Slota, Bryn Mawr, Pa., for Benner.

Joseph V. Pinto, Philadelphia, Pa., for American Motors & Jeep.

Harry A. Short, Philadelphia, Pa., for Donald Pusey.

Joseph V. Pinto, Philadelphia, Pa., for defendants.

OPINION

JOSEPH S. LORD, III, Senior District Judge.

I. Introduction

On June 17, 1980, Sherry Lee Shank died as a result of injuries sustained while a passenger in a 1978 Jeep CJ Renegade which rolled over in a single vehicle accident. On November 14, 1981, Robert Timothy Benner was rendered a paraplegic as a result of injuries sustained while a passenger in a 1975 Jeep CJ-5 which rolled over in a single vehicle accident. Plaintiffs in both the Shank and Benner cases thereafter instituted products liability actions against defendants American Motors Corporation and Jeep Corporation, alleging that the injuries were caused by the defective design, manufacture, and assembly of the subject jeeps. On June 7, 1983, defendants requested that I recuse myself on the ground that I am personally biased against car manufacturers, a class in which defendants are members. Defendants further allege that this bias was extrajudicially acquired. Defendants point to the following colloquy, which took place at a discovery conference in the Shank case on April 15, 1983, as providing a basis for their motion:

THE COURT: Very well. This is a suit to recover damages for alleged defects in a motor vehicle called a "Jeep" manufactured and sold by American Motors Company as I understand it.

In previous conferences I have encountered unwillingness to answer, evasiveness, chicanery, intentional misunderstanding of the questions that were asked and refusal to answer based on an alleged misunderstanding or non-knowledge of a question.

It now becomes perfectly obvious to me that the defendant did understand the question, could have understood the question, and could have answered the interrogatories.

It also becomes increasingly obvious to me that the defendant is attempting to hide information, conceal information, and evade answering interrogatories.

Therefore, I am ordering that all interrogatories that have been asked be answered insofar as they relate to the defect contained in the Complaint and not beyond the defect complained of in the Complaint.

Mr. Pinto has told me that this will put the American Motors Company out of business. Aside from the fact that I just simply don't believe that whatsoever, that's too bad. If it puts them out of business, maybe they deserve to be put out of business.

Is there anything else you want me to add to what I said before? (pause)

MR. PINTO: Well, you might want to add your previous comments that "Automobile manufacturers are amongst the most devious groups of defendants that you have ever seen."

THE COURT: I certainly adopt that.

"Automobile manufacturers are among the most devious groups of defendants that I have ever seen in 21 years on the Bench."

Also, I might add that in the case of at least one automobile manufacturer, it's the only case I can remember in which I entered a Default Judgment for evasiveness and failure to answer interrogatory questions, following which the case was settled for $500,000.

MR. PINTO: Well, we ought to make clear that that doesn't happen to be the defendant here.

THE COURT: It is not the defendant here. It's simply—

MR. PINTO: Although we are being found guilty by association.

THE COURT: No, it's simply in keeping with the assertion that you asked me to make: "That automobile manufacturers are the most devious group of defendants I have ever encountered."

On September 28, 1983 I denied the motion. This opinion explains why.

II. Applicable Law

Defendants' recusal motion is made pursuant to 28 U.S.C. § 144 and 28 U.S.C. § 455. The former section provides:

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.

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith. (Emphasis added).

28 U.S.C. § 455 reads 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, or personal knowledge of disputed evidentiary facts concerning the proceeding;

. . . . .

The mere filing of an affidavit under § 144 does not automatically disqualify a judge from hearing a case. United States v. Townsend, 478 F.2d 1072, 1073 (3d Cir.1973). It is the duty of a judge to determine whether the affidavit is timely and legally sufficient. Id. The allegations of bias or prejudice must set forth specific facts including time, place, persons and circumstances. Id. at 1074.

A. Timeliness

Defendants filed a joint recusal motion with respect to both the Shank and Benner cases. The motion and affidavit, however, were not timely. An affidavit is untimely when the party significantly invokes participation by the court in pretrial motions or other judicial proceedings between the time he first learned of the asserted prejudice and the time the § 144 motion was filed. Smith v. Danyo, 585 F.2d 83, 86 (3d Cir.1978); Samuel v. University of Pittsburgh, 395 F.Supp. 1275, 1279 (W.D.Pa.1975), vacated on other grounds, 538 F.2d 991 (3d Cir.1976). The affidavit asserts that defendants first became aware of my alleged prejudice at a hearing in the Benner case on December 9, 1982. Defendants' recusal motion, however, was not filed until June 7, 1983. In the intervening six month period, defendants in the Benner case (1) moved for a discovery conference; (2) moved to compel an inspection of the vehicle described in plaintiff's complaint and for a protective order to preclude discovery of information obtained as a result of such inspection; (3) filed a praecipe to withdraw a previous motion; (4) participated in a discovery conference; (5) filed an answer to plaintiff's amended complaint; (6) answered four motions or requests filed by plaintiff; (7) filed supplemental interrogatories; and, (8) filed three sets of answers and objections to plaintiff's interrogatories. In all, defendants made sixteen filings in the Benner case between December 9, 1982, and June 7, 1983. There is no room for argument that defendants did not affirmatively invoke the participation of this court between the time they first learned of the alleged bias and the time they filed the § 144 motion.

In the same six month period in the Shank case,¹ defendants (1) participated in a pre-trial conference at which there was extensive discussion of the discovery problems encountered in the case; (2) moved to compel discovery; (3) submitted a stipulation providing defendants with an extension of time to respond to plaintiffs' motion to compel; (4) answered plaintiffs' motion to compel more sufficient answers to interrogatories; and (5) participated in a discovery conference scheduled by me to resolve plaintiffs' motion to compel. Thus, similar to the Benner case, defendants affirmatively invoked the participation of this court between the time they first learned of the alleged bias and the time they filed the § 144 motion. The motion is untimely in both cases.

B. Extrajudicial Origin

Because defendants have also suggested that I recuse myself, mea sponte, under 28 U.S.C. § 455, I did not rely solely on the untimeliness of their § 144 affidavit.² This circuit has specifically held that only extrajudicial bias forms a basis for recusal under either § 144 or § 455. Johnson v. Trueblood, 629 F.2d 287, 290-91 (3d Cir. 1980), cert. denied, 450 U.S. 999, 101 S.Ct. 1704, 68 L.Ed.2d 200 (1981). Other circuits agree. United States v. Cowden, 545 F.2d 257, 265 (1st Cir.1976), cert. denied, 430 U.S. 909, 97 S.Ct. 1181, 51 L.Ed.2d 585 (1977); In re International Business Machines Corp., 618 F.2d 923, 928 (2d Cir. 1980); Davis v. Board of School Commissioners, 517 F.2d 1044, 1052 (5th Cir.1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976); City of Cleveland v. Krupansky, 619 F.2d 576, 578 (6th Cir.), cert. denied, 449 U.S. 834, 101 S.Ct. 106, 66 L.Ed.2d 40 (1980); United States v. Olander, 584 F.2d 876, 882 (9th Cir.1978), vacated on other grounds, 443 U.S. 914, 99 S.Ct. 3104, 61 L.Ed.2d 878 (1979); United States v. Haldeman, 559 F.2d 31, 132 n. 297 (D.C. Cir.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977). The affidavit filed here fails to meet this requirement.

In evaluating the legal sufficiency of an affidavit, the court may not question either the truth of the allegations or the good faith of the pleader. United States v. Townsend, supra, 478 F.2d at 1073; Resident Advisory Bd. v. Rizzo, 510 F.Supp. 793, 797 (E.D.Pa.1981). The court, however, "does not need to consider the allegations that the judge has personal bias and prejudice as being factual...