Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

MARTIN-TRIGONA v. SHIFF

December 13, 1984

ANTHONY R. MARTIN-TRIGONA, Plaintiff,
v.
PHILIP SHIFF, et al., Defendants



The opinion of the court was delivered by: GREEN

 On February 12, 1982, pro se plaintiff Anthony R. Martin-Trigona filed this action seeking damages and injunctive relief against Philip Shiff, Jason Shrinsky, Irving Perlmutter, Daniel Meister, and the Federal Communications Commission ("FCC"), contesting the loss of his radio station, WNHC, and its broadcast license from the FCC. Mr. Martin-Trigona alleges that defendants conspired to take away the FCC license from the radio station through involuntary bankruptcy proceedings and, therefore, violated the Racketeer Influenced Corrupt Organizations Act, 18 U.S.C. §§ 1961 et seq., and the Hobbs Act, 18 U.S.C. § 1951; obstructed justice in contravention of 18 U.S.C. § 1503 and 18 U.S.C. § 1505, and violated his civil rights under 42 U.S.C. § 1985(2). He asserts a number of other miscellaneous federal and state law claims which need not be addressed at this juncture.

 In February 1982, this Court, sua sponte, dismissed plaintiff's complaint, finding that under the doctrine of Colorado River Water Conservation District v. United States, 424 U.S. 800, 47 L. Ed. 2d 483, 96 S. Ct. 1236 (1976), "this forum is inconvenient for litigation concerning an out-of-state radio station; jurisdiction was first exercised in another forum; and dismissal would avoid piecemeal litigation." Martin-Trigona v. Shiff, No. 82-425, slip op. at 1 (D.D.C. Feb. 26, 1982).

 On appeal, the Court of Appeals for this Circuit reversed the Court's determination, requesting the Court to examine the effects of Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 73 L. Ed. 2d 598, 102 S. Ct. 2858 (1982), a decision rendered by the Supreme Court subsequent to this Court's initial memorandum of dismissal. See Martin-Trigona v. Smith, 229 U.S. App. D.C. 389, 712 F.2d 1421, 1426 (D.C. Cir. 1983).

 In January 1984, this Court granted plaintiff's motion for leave to charge costs of re-service, after having made service in accordance with Rule 4(c)(2)(c)(11) on defendants Meister and Perlmutter. The Court sees nothing on the record which indicates that plaintiff effected re-service, nor has he ever submitted proof of costs for said re-service of defendants.

 The Court stayed all discovery in this matter until it had the opportunity to hear argument on the motions or at least until all defendants which Mr. Martin-Trigona intended to serve had been brought before this Court. The Court, in the interest of judicial economy, also temporarily delayed consideration of the motions to dismiss until they all had become ripe.

 Further, the Court scheduled argument dates for the motions to dismiss, but because of Mr. Martin-Trigona's incarceration for contempt, the Court cancelled indefinitely argument on the motions.

 In May 1984, Mr. Martin-Trigona filed numerous motions before the Court. He filed a motion for leave to proceed in forma pauperis, which was denied without prejudice. The Court in that order indicated that if Mr. Martin-Trigona provided the Court, in some detail, the facts of his poverty, the Court would reconsider his motion.

 The Court also denied plaintiff's motion to file an amended complaint. The Court denied plaintiff's motion at that time at least until he was able to provide the Court, in detail, the basis of his new complaint, or submit a copy of his proposed amended complaint.

 Plaintiff also filed a petition for writ of habeas corpus ad testificandum. This Court, however, did not act on this motion immediately. Because the Court determined that it would not hold oral argument on the motions, action on Mr. Martin-Trigona's petition was unnecessary at that time.

 On June 21, 1984, the Court granted the FCC's motion to dismiss, finding that exclusive jurisdiction for judicial supervision of the FCC is vested with the United States Court of Appeals for the District of Columbia ("D.C. Circuit").

 Presently before this Court are a number of motions that must be decided. They include plaintiff's "Motion to Recuse Judge;" plaintiff's petition for writ of habeas corpus ad testificandum, defendants' oppositions thereto; defendant Shiff's motion to dismiss for lack of personal jurisdiction, plaintiff's opposition thereto, defendant's reply to plaintiff's opposition; defendant Shrinsky's motion for partial summary judgment, plaintiff's opposition thereto; plaintiff's renewed motion to proceed in forma pauperis ; and plaintiff's renewed motion to amend complaint. In addition, on October 24, 1984, the Court, sua sponte, ordered the parties to submit, by November 15, 1984, briefing as to the issue of whether this action should be transferred to the District of Connecticut pursuant to the provisions of 28 U.S.C. § 1404. The Court will address each of these issues seriatim.

 A. Plaintiff's Motion to Recuse Judge

 On November 19, 1984, plaintiff filed a motion to recuse me from this action. The basis of Mr. Martin-Trigona's motion appears to be that he is unhappy with the pace that this action has taken and disagrees with this Court's determinations of issues that it has been asked to resolve. Mr. Martin-Trigona states in his motion:

 
There comes a time when the court's antipathy for a litigant, and when a continuing pattern of sua sponte delays, can amount to denial of a "neutral and detached judge" as required by the Constitution. This court is seemingly incapable of approaching or deciding the issues with an "unjade eye."

 Motion to Recuse Judge at 1 (citation omitted).

 Mandatory disqualification of a district court judge may be premised on either 28 U.S.C. § 144 or 28 U.S.C. § 455. *fn1" Under section 144:

 
Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge . . . has a personal bias or prejudice against him 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. . . . A party may file 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.

 28 U.S.C. § 144. It is plain that, in determining whether recusal shall be granted, the facts in the affidavit shall be taken as true. Therefore, the only issue for this Court to determine is whether the allegations made are legally sufficient to establish personal bias or prejudice. Berger v. United States, 255 U.S. 22, 35-36, 65 L. Ed. 481, 41 S. Ct. 230 (1921); Mitchell v. Sirica, 163 U.S. App. D.C. 373, 502 F.2d 375, 379 (D.C. Cir. 1974); Tynan v. United States, 126 U.S. App. D.C. 206, 376 F.2d 761, 764 (D.C. Cir.), cert. denied, 389 U.S. 845, 19 L. Ed. 2d 111, 88 S. Ct. 95 (1967).

 In reviewing plaintiff's motion, the Court first notes that plaintiff has failed to comply with the requirements of section 144 which demands, inter alia, that a timely and sufficient affidavit outlining the personal bias or prejudice be submitted along with detailed facts and reasons supporting that affidavit. Failure to submit such an affidavit shall defeat the charge of bias. See, e.g., United States v. Azhocar, 581 F.2d 735, 738 (9th Cir. 1978), cert. denied, 440 U.S. 907, 59 L. Ed. 2d 454, 99 S. Ct. 1213 (1979). Further, Mr. Martin-Trigona has failed to accompany his motion with the good faith certification as expressly required by section 144. It is plain that failure to provide these documents amounts to a significant defect and shall defeat a motion for disqualification. E.g., Walters v. United States, 404 F. Supp. 996, 998 (S.D.N.Y. 1975), aff'd mem. 542 F.2d 1166 (2d Cir. 1976). The Court takes this position, particularly in light of Mr. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.