TRAVELERS INS. v. St. Jude Medical Office Bldg., Civ. A. No. 93-1199

• Decision Date: 25 January 1994
• Docket Number: 93-2414.,Civ. A. No. 93-1199
• Citation: 843 F. Supp. 138
• Parties: TRAVELERS INSURANCE COMPANY v. ST. JUDE MEDICAL OFFICE BUILDING, LIMITED PARTNERSHIP and St. Jude Hospital Complex Development Group, Inc.
• Court: U.S. District Court — Eastern District of Louisiana

843 F. Supp. 138

TRAVELERS INSURANCE COMPANY v. ST. JUDE MEDICAL OFFICE BUILDING, LIMITED PARTNERSHIP and St. Jude Hospital Complex Development Group, Inc.

Civ. A. Nos. 93-1199, 93-2414.

United States District Court, E.D. Louisiana.

January 25, 1994.

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Brent B. Barriere, Robert Eitel, Phelps, Dunbar, New Orleans, LA, for plaintiff Travelers Ins. Co.

Victoria L. Bartels, William F. Wessel, Wessel, Bartels & Ciaccio, New Orleans, LA, for defendant St. Jude Medical Office Buildings Ltd. Partnership and St. Jude Hosp. Complex Development Group, Inc.

Douglas Scott Draper, Deborah Wiesler, Draper & Culpepper, New Orleans, LA, for Liljeberg Enterprises, Inc.

MEMORANDUM OPINION

MENTZ, District Judge.

Before the Court are several motions filed by the parties to this litigation. First, the Court addresses two motions to disqualify the district judge filed by defendants St. Jude Medical Office Building Limited Partnership (the Partnership), St. Jude Hospital Complex Development Group, Inc. (Development Group) and Liljeberg Enterprises, Inc. (LEI).¹ Next, the Court addresses defendants' motion for leave to file affidavits and plaintiff Travelers Insurance Company's (Travelers) motion to strike affidavits. Last, the Court addresses the parties' cross motions for summary judgment.

I. Defendants' motions to disqualify the district judge

Defendants, the Partnership, Development Group and LEI, seek disqualification of the district judge pursuant to 28 U.S.C. § 455(a) on the ground that his impartiality might reasonably be questioned, and pursuant to 28 U.S.C. § 455(b) on the ground that he has allegedly acquired a personal bias or prejudice against the defendants in these proceedings.

Title 28 of the United States Code § 144 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.

A motion to recuse must be strictly construed for form, timeliness, and sufficiency in order to guard against the danger of frivolous attacks on the orderly process of justice. United States v. Womack, 454 F.2d 1337, 1341 (5th Cir.1972), cert. denied, 414 U.S. 1025, 94 S.Ct. 450, 38 L.Ed.2d 316. The procedural formalities of a motion to recuse must be precisely complied with. United States v. Anderson, 433 F.2d 856, 859 (8th Cir.1970).

The Partnership and Development Group filed their motions on December 17, 1993, and LEI filed its motion shortly thereafter on December 21st. Both motions were accompanied by an affidavit signed by John A. Liljeberg, Jr. and Robert Liljeberg, individually and as representatives of defendants. Counsel in both cases certified the Liljebergs' affidavit to be made in good faith and not for purposes of delay. At first blush, defendants appear to have satisfied the form requirements of 28 U.S.C. § 144.

As to their timeliness, the Court shall treat the motions to disqualify pursuant to 28 U.S.C. § 455(a) and 455(b) separately.

The § 455(a) motion fails as untimely and moot. The issues raised by defendants' latest 455(a) motion were addressed by the Court's Order and Reasons of November 19, 1993, in a related case Travelers Insurance Co. v. St. Jude Hospital of Kenner, La., et al, C.A. # 90-1983 c/w # 90-2601 (the Partnership Litigation). The text of that Order and Reasons is attached hereto as Appendix A, accompanied by the Court's minute entry of December 20, 1993, denying defendants' motion for leave to file third amendment.

In their several previous motions on this subject defendants alleged to have learned of the judge's membership in private clubs on July 23, 1993. On October 1, 1993, the first motion was filed of six previous motions raising the 455(a) issue in three related cases. Of the four cases involving Travelers with various combinations of the Liljebergs and their companies, this case was the only one on October 1 which had not gone to trial or had judgment entered therein.² By waiting 2 and ½ months to file the present motions, defendants' actions belie their concern as to the Court's alleged appearance of partiality and expose the blatant untimeliness of their motions.

Defendants' 455(a) motions are also moot by their own admission. In their memorandum in support of their October 12, 1993, motion for continuance filed in this case, defendants stated,

A trial set sic has been set by this court on November 1, 1993, however, since the filing of the trial date two of the parties that are defendants in the instant case, Liljeberg Enterprises, Inc. and St. Jude Medical Office Building Partnership have filed a Rule 60(B) Motion for relief of judgment in cases in which they were previously defendants in suits brought by Travelers Insurance Company. Those cases were nos. 92-0058 and 90-1983 c/w 90-2601, all of which were heard by this court. The allegations in the Rule 60(b) motion address the question of whether or not Judge Mentz, who heard those cases, should have recused or disqualified himself. Those motions are to be heard on November 17, 1993 and are dispositive of whether or not recusal or disqualification of the District Judge is appropriate in this case.

These defendants stipulate that the determination of those motions would be dispositive of any complaints that the defendants would have in the instant case. Emphasis added.³

By their own admission, defendants may not now raise a § 455(a) motion to disqualify.

A recusal motion is committed to the sound discretion of the trial judge against whom it is directed. In re City of Houston, 745 F.2d 925, 927 (5th Cir.1984). The Court need not, but nevertheless elects to construe defendants' language, "dispositive of any complaints that the defendants would have in the instant case," to mean "dispositive of any complaints pursuant to 28 U.S.C. § 455(a) only." Thus the Court shall entertain defendants' motion to disqualify pursuant to § 455(b).⁴

Whereas a § 455(a) motion is directed to a judge's appearance of partiality, § 455(b) addresses personal bias or prejudice of the judge and is raised for the first time in these related cases by defendants' present motions. Defendants' § 455(b) motions fail as untimely.

A litigant must file his affidavit of prejudice in support of a motion to disqualify as soon as practicable after discovery of the allegedly disqualifying facts. Danielson v. Winnfield Funeral Home of Jefferson, Inc., 634 F.Supp. 1110 (E.D.La.1986), aff'd in part, Dulaney v. Winnfield Funeral Home, 820 F.2d 1222 (5th Cir.1987) (Table, No. 86-3433).

Since formal terms of court were abolished long ago, in Pomeroy v. Merritt Plaza Nursing Home, Inc., 760 F.2d 654, 658 (5th Cir. 1985), wherein plaintiff filed her motion "promptly after the judge made the offending remarks," the Fifth Circuit held the literal ten-day requirement of 28 U.S.C. § 144 to no longer apply:

Instead, courts have simply required a party to exercise reasonable diligence after discovering facts that show bias.⁵

In the present case, the Partnership and Development Group filed their motion to disqualify on December 17, 1993. This occurred almost five months after learning that the judge holds membership in the same private club as Travelers' board member and partners of Travelers' counsel, two and one half months after filing of the original motions for relief from judgment which raised the disqualifying issue in related cases, and seventeen days after receiving the Court's Order and Reasons alleged to have demonstrated the Court's bias against defendants. LEI filed its motion to disqualify on December 21 and noticed it for hearing on January 12 or twelve days before trial date.

The Court finds defendants' motions to disqualify pursuant to 28 U.S.C. § 455(b) to be untimely.⁶ Defendants have also failed to show good cause for their delay, as specifically required by 28 U.S.C. § 144. U.S. v. Iddeen, 854 F.2d 52 (5th Cir.1988). Absent a showing of good cause, defendants' affidavit fails to satisfy the form requirements of 28 U.S.C. § 144.

Although defendants' motions pursuant to § 455(a) and (b) are untimely⁷, the Court also addresses the legal sufficiency of defendants' affidavit for the record.

It is the duty of the judge against whom an affidavit to disqualify is filed, to pass upon the legal sufficiency of the facts alleged. Parrish v. Board of Com'rs 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); United States v. Townsend, 478 F.2d 1072 (3rd Cir.1973). The facts must be such that, if true, would convince a reasonable man that bias exists. Davis v. Board of School Commissioners, 517 F.2d 1044, 1051 (5th Cir.1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188; Parrish, 524 F.2d at 100; United States v. Thompson, 483 F.2d 527, 528 (3rd Cir. 1973).

The affidavit must identify and carefully delineate the time, place, persons, occasions and circumstances supporting the mover's belief of bias or prejudice. Parrish, 524 F.2d at 100; United States of America v. Partin, 312 F.Supp. 1355 (E.D.La.1970); Hall v. Burkett, 391 F.Supp. 237 (W.D.Okla. 1975). And lastly, the alleged bias must be "personal", as distinguished from judicial in nature. As stated by the Fifth Circuit in Phillips v. Joint Legislative...