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July 20, 1995

OZZIE CLAY, et al., Plaintiffs
BROWN, HOPKINS & STAMBAUGH, et al., Defendants.

The opinion of the court was delivered by: STANLEY SPORKIN

 This matter comes before the Court on an emergency motion filed by Plaintiffs pursuant to 28 U.S.C. § 636(c)(6) to remove Magistrate Judge Robinson due to her alleged bias.

 On April 6, 1993, Plaintiffs filed an attorney malpractice action alleging that Defendant, while acting as Plaintiffs' counsel, failed to file an answer in a fraudulent conveyance case filed against them. As a result, Plaintiffs allege they suffered some $ 1 million in damages. *fn1" On April 24, 1995, the parties consented to this Court's referring the case to Magistrate Judge Robinson for all purposes, including trial.

 Prior to the scheduled trial date before Magistrate Judge Robinson, Defendants filed a motion that Plaintiffs should be collaterally estopped from denying that Clay Properties, Inc. was the alter ego of Ozzie Clay "as of 1983 when the purported sales transaction occurred." (Plaintiffs' Motion, at 6 (quoting from Defendants' Memorandum accompanying their Motion In Limine)). On June 14, 1995, Magistrate Judge Robinson held that Clay Properties, Inc. and Ozzie Clay were alter egos from 1983 through 1995. On June 15, 1995, Plaintiffs made an oral Motion For Reconsideration And/Or Clarification of The Court's Ruling Of June 14, 1995 which the Court denied. On June 19, 1995, Plaintiff filed a written motion for reconsideration or clarification of the June 14, 1995 Order.

 On June 26, 1995, Plaintiffs filed an "emergency application" with this Court for the removal of Magistrate Judge Robinson for bias pursuant to 28 U.S.C. § 636(c)(6) on the basis of her adverse rulings in this case: "There have been a number of rulings made by Magistrate Robinson that could be interpreted as collective bias against the Plaintiffs." (Plaintiffs' Motion, at 8). Plaintiffs allege that the following rulings of Magistrate Judge Robinson, taken together, establish bias against the Plaintiffs:

 (1) Defendants were given eleven additional years of collateral estoppel. According to Plaintiffs, even though Defendants only asked for collateral estoppel relief for the year of 1983, Magistrate Judge Robinson impermissibly granted relief from 1983 through 1995.

 (2) Magistrate Judge Robinson granted Defendants' motion for postponement of the trial over Plaintiffs' objection.

 (3) Magistrate Judge Robinson excluded from trial evidence copies of "vital corporate documents from 1983 (the very proof that would establish lack of an 'alter ego ' relationship) when the only sworn recital before her was that of Plaintiff Ozzie Clay." (Plaintiffs' Motion, at 9).


 Plaintiffs argue that 28 U.S.C. § 636(c)(6) gives this Court the authority to remove a magistrate judge for bias. Title 28 U.S.C. § 636(c)(6) provides: "The court may, for good cause shown on its own motion, or under extraordinary circumstances shown by any party, vacate a reference of a civil matter to a magistrate under this subsection." Plaintiffs contend that the bias and prejudice of Magistrate Judge Robinson, as evidenced by her judicial rulings, constitute "extraordinary circumstances" under § 636(c)(6).

 This Court rejects the means by which Plaintiffs have challenged Magistrate Judge Robinson's impartiality. The more appropriate procedure for challenging the impartiality of a judge is through a motion for recusal pursuant to 28 U.S.C. § 455. *fn2" The case law interpreting this provision requires that the movant first present a motion for recusal to the judge whose impartiality is at issue. In United States v. Heldt, 215 U.S. App. D.C. 206, 668 F.2d 1238 (D.C. Cir.), cert. denied 456 U.S. 926 (1981), the court held that § 455 "imposes a duty directly upon the judge to evaluate his own conduct." Id. at 1271. In Kinnear-Weed Corp. v. Humble, 441 F.2d 631 (5th Cir. 1971), the court held that "Congress made it expressly plain that it placed in the justice or judge the responsibility for making the determination 'in his opinion' that he should disqualify himself." Id. at 635. In In re School Asbestos Litigation, 977 F.2d 764 (3rd Cir. 1992), the court held that § 455 is "addressed directly to judicial officers, requiring them to act sua sponte when confronted with situations requiring their disqualification." Id. at 775. See also Roberts v. Bailar, 625 F.2d 125 (6th Cir. 1980).

 In the instant case, the relationship of the magistrate judge to the district judge closely resembles that of a district judge to an appellate court. When a judge is not permitted in the first instance to review a motion for his or her dismissal from a case, "the district judge is given no notice of the charges against him, nor is he given any opportunity to explain his actions. The district judge has no part in preparing the designated record that provides the basis for appellate review. The charges appear in the briefs of the litigants. Consequently, the record as to the charges against the judge is compiled solely by disgruntled litigants who have no concern for the interests of the judge or the appearance of justice." United States v. Jacobs, 855 F.2d 652, 657. (9th Cir. 1988) (Stevens, D.J. concurring in part, dissenting in part).

 In the instant case, Plaintiffs have made allegations against Magistrate Judge Robinson without first affording her the opportunity to respond. Fundamental principles of due process require that the judge being accused of bias be given an opportunity to respond. Where litigants have attempted to bypass the trier of fact and in the first instance have sought to raise the issue of bias before an appellate court, they have generally been rebuffed. See United States v. Conforte, 624 F.2d 869, 879 (9th Cir.), cert. denied 449 U.S. 1012, 66 L. Ed. 2d 470, 101 S. Ct. 568 (1980); United States v. Foddrell, 523 F.2d 86, 87 n.2 (2nd Cir.), cert. denied 423 U.S. 950, 46 L. Ed. 2d 286, 96 S. Ct. 370 (1975); Delesdernier v. Porterie, 666 F.2d 116, 121 (5th Cir.), cert. denied 459 U.S. 839, 103 S. Ct. 86, 74 L. Ed. 2d 81 (1982).

 In Liberty Lobby, Inc. v. Dow Jones Co., 267 U.S. App. D.C. 337, 838 F.2d 1287 (D.C. Cir. 1988), this circuit held that: "Recusal is a highly personal decision. The judge must assess the truth of the facts alleged and determine if they would impeach his impartiality or appearance of impartiality. . . . This is not a decision that an appellate panel may make for a district court judge in the first instance." Id. at 1301. And in Jenkins v. Sterlacci, 270 U.S. App. D.C. 296, 849 F.2d 627 (D.C. Cir. 1988), the court held that a ...

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