Spangler v. Sears, Roebuck and Co.

• Decision Date: 06 March 1991
• Docket Number: No. IP 87-1013-C.,IP 87-1013-C.
• Citation: 759 F. Supp. 1327
• Parties: Burl SPANGLER and Bonnie Spangler, Plaintiffs, v. SEARS, ROEBUCK AND CO. and Roper Corporation, Defendants.
• Court: U.S. District Court — Southern District of Indiana

759 F. Supp. 1327

Burl SPANGLER and Bonnie Spangler, Plaintiffs, v. SEARS, ROEBUCK AND CO. and Roper Corporation, Defendants.

No. IP 87-1013-C.

United States District Court, S.D. Indiana, Indianapolis Division.

March 6, 1991.

Morris L. Klapper, Klapper & Isaac, Indianapolis, Ind., for plaintiffs.

William M. Osborn, Osborn, Hiner & Lisher, Indianapolis, Ind., for defendants.

ENTRY DENYING DEFENDANTS' MOTION FOR RECUSAL

TINDER, District Judge.

I. General Background

In the federal courts, a party with a reasonable suspicion that the judge is biased may seek to have the judge removed from the case. In such a situation, the judge is required to retire from the case if "an objective, disinterested observer fully informed of the facts underlying the grounds on which recusal is sought would entertain a significant doubt that justice would be done in the case" were the judge to continue. Pepsico, Inc. v. McMillen, 764 F.2d 458, 460 (7th Cir.1985). Indeed, a judge is required to remove himself from a case on his own motion if the above test is met. See United States v. Story, 716 F.2d 1088, 1091 (6th Cir.1983) ("section 455 is self-executing, requiring the judge to disqualify himself for personal bias even in the absence of a party complaint"); Johnson v. Trueblood, 629 F.2d 287, 290 (3rd Cir.1980) ("district judge ... raised, sua sponte, whether he should recuse himself pursuant to 28 U.S.C. § 455(a)"), cert. denied, 450 U.S. 999, 101 S.Ct. 1704, 68 L.Ed.2d 200 (1981).

Defendants' argument for this judge's recusal is based largely upon this court's "language"¹ contained in an entry in which this court denied several of defendants' motions to dismiss and criticized defendants' counsel's misrepresentation of existing law, failure to disclose controlling authority, imprecise briefing and failure to withdraw motions to dismiss that had been rendered non-meritorious by recent Indiana Supreme Court precedents.²See Spangler v. Sears, Roebuck & Co., 752 F.Supp. 1437 (S.D.Ind.1990). As grounds for this motion for recusal defendants' counsel has asserted that this court's entry evidenced the following: the appearance of partiality, hostility, lack of self-restraint, lack of judicial calmness, lack of dispassion, lack of impartiality in demeanor, bias and prejudice.³ Interestingly however, while defendants' Recusal Brief cited 28 U.S.C. § 455(b)(1) and asserted actual "bias and prejudice" as a grounds for this court's recusal, see Recusal Brief at 15-16, defendants' "Reply Brief in Support of Motion to Recuse," (filed February 5, 1991) (hereinafter, "Reply Brief"), stated that, "defendants do not complain of partiality; they complain of the appearance of partiality among other things." Reply Brief at 2 (emphasis original).

A motion for recusal must identify cold, hard facts which create the appearance of partiality. Mere conclusory allegations are not enough. See, e.g., Hansen v. Commissioner of I.R.S., 820 F.2d 1464, 1467 (9th Cir.1987) ("a clear and precise showing of prejudice must be made"); United States v. Jones, 801 F.2d 304, 312 (8th Cir.1986) (denying motion to recuse where moving party was unable to point to "specific facts" on which motion was based). Accordingly, this court has focused on the eight (8) specific allegations of prejudicial conduct identified in defendants' motion for recusal and has considered the sufficiency of these allegations in the specific context of this case. To provide an overview of the defendants' position on their recusal motion, the specific allegations on which defendants' motion for recusal is based are set forth, without analysis, in the following section.

II. Defendants' Allegations of Bias and the Appearance of Partiality

In this section each of the items on which defendants' motion for recusal is based are listed. Each item is followed by a brief notation of defendants' counsel's position with respect to why that particular item is evidence based upon which this court's impartiality might reasonably be questioned. The items identified in defendants' motion to recuse are that:

Item 1: The court's entry of December 11, 1990, stated that defendants' counsel had failed to disclose controlling authority to the court and criticized counsel for doing so. The court's entry analyzed counsel's failure against the standards of the Rules of Professional Conduct and Federal Rule of Civil Procedure 11 and questioned "whether defendants' motion ... was based upon a `belief formed after reasonable inquiry' as required by ... Rule ... 11." Spangler, 752 F.Supp. at 1448.

Counsel's Position: The court's entry of December 11, 1990, was wrong in that "defendants knew there were such cases and had simply forgotten about them in putting together their making the record consolidated motion (sic)."⁴ Recusal Brief at 7. Furthermore, counsel makes the point that "defendants had cited the 1977 Hibschman Pontiac v. Batchelor, 266 Ind. 310, 362 N.E.2d 845 (1977) case and the 1981 Art Hill Ford v. Callender, 423 N.E.2d 601 (Ind.1981) case⁵ to the Court (sic) in" a November 22, 1989 brief on an unrelated motion. Recusal Brief at 7. Thus, even though defendants' counsel explicitly stated to this court that "there is no Indiana Supreme Court holding on point which defendants can find,"⁶ defendant's counsel now contends that he "did disclose to this Judge the rule of law in question"⁷ merely because his briefing on prior unrelated motions happened to contradict, in part, his later representations to this court. Finally, counsel argues that his motion was grounded in fact and warranted by existing law because there was a separate independent ground (specifically the authority of Bishop v. Firestone Tire & Rubber Co., 814 F.2d 437, 447 (7th Cir.1987)), apart from the issue of malice, upon which the court could have stricken plaintiffs' claim for punitive damages. Recusal Brief at 8, 10.

Item 2: The court's entry stated that: "This court is concerned about whether defendants' counsel has thwarted plaintiffs' entitlement to have their claims heard in a timely fashion, wasted the time of this court and imposed needless effort and expense upon plaintiffs and plaintiffs' counsel." Spangler, 752 F.Supp. at 1447-48.

Counsel's Position: Others besides the defendants' counsel, including the plaintiffs and this court, should bear some of the blame for any delays in this case. Defendants' summary judgment motion was not ruled on for eleven months and the court has still not ruled on an aspect of a summary judgment motion made by the defendants over one year ago.⁸ Recusal Brief at 10-11, 15-16.

Item 3: With respect to the availability of attorney's fees this court commented that: "Defendants claim that Ind.Code § 26-1-2-721 is inapplicable in this case, yet they provide no authority or reasoning in support of their assertion." Spangler, 752 F.Supp. at 1450.

Counsel's Position: "Defendants did provide the Court (sic) authority and reasoning to support their assertion." Recusal Brief at 11-12.

Item 4: This court's "entry was critical that defendants should have cited the Indiana Supreme Court cases in (sic) Bud Wolf Chevrolet, Orkin Exterminating, and Travelers Indemnity." Recusal Brief at 13.⁹

Counsel's Position: Defendants' counsel cited Bud Wolf Chevrolet in defendants' reply brief (filed January 16, 1990) (after it had been cited in plaintiffs' response). Defendants' counsel cited Travelers in a brief written two years earlier and appended to their reply brief. "Neither side cited Orkin Exterminating, and Orkin Exterminating is not directly adverse to defendants' position because of the Bishop case." Id. at 13.

Item 5: The court's entry was thirty-seven pages long. Recusal Brief at 13-14.

Counsel's Position: The court's entry on a previous summary judgment motion made by defendants was less than two pages in length and failed to address charges made by the defendant that the plaintiffs had made misleading statements and recited facts not in the record in their response brief. Recusal Brief at 13-14.

Item 6: The court's entry contained the following statements:

a. "The mere denial of defendants' motion to strike plaintiffs' claim for punitive damages, however, is insufficient in light of the egregious conduct of defendants' counsel in briefing this issue." Spangler, 752 F.Supp. at 1447.

b. "This court intends to express no opinion concerning whether defense counsel's performance was intentionally deceptive or grossly negligent and in heedless disregard of the appropriate conduct of a member of the bar ...." Spangler, 752 F.Supp. at 1447.

c. "Instead, however, counsel looked the other way and made statements that, depending on counsel's actual knowledge, bordered on misrepresentation." Spangler, 752 F.Supp. at 1447.

d. "The gross negligence or willful misrepresentations of defendants' counsel were not harmless." Spangler, 752 F.Supp. at 1447.

Counsel's Position: The above quoted language is evidence of hostility, lack of self-restraint, lack of judicial calmness, lack of dispassion and lack of impartiality in demeanor toward the defendants. Recusal Brief at 15.

Item 7: In a footnote the court's entry observed that three of defendants' counsel's citations were incomplete in that counsel failed to record that certiorari was denied. Spangler, 752 F.Supp. at 1442, n. 6.¹⁰

Counsel's Position: The citations are incomplete but prejudice is revealed because the entry fails to mention that, "three citations of cases in plaintiffs' reply (sic) brief are even more incomplete in that they furnish a Northeastern citation, but not the state." Recusal Brief at 16.

Item 8: The court "reserved its decision as to whether sanctions under Rule 11 should be imposed against counsel for the defendants until this case has been concluded" and ruled that "counsel will have the opportunity to address this question, as well as the type and amount of sanctions, if any, before this court will set sanctions." Spangler, 752...