United States District Court, District of Columbia
February 21, 2002
LAVELLE JAMES, PLAINTIFF,
DISTRICT OF COLUMBIA, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Deborah A. Robinson, Judge.
Two motions which concern the conduct of discovery are pending for
determination by the undersigned: (1) defendants' Motion to District
Judge to Stay Magistrate Judge's Orders (Docket No. 34), and (2)
defendants' Motion for Recusal of Magistrate Judge (Docket No. 35). By
the first of the two motions, defendants seek a stay of "all of the
pending Orders of the Magistrate Judge on discovery and sanctions, until
resolution of the contemporaneously-filed Motion for Recusal of
Magistrate Judge." Motion to District Judge to Stay Magistrate Judge's
Orders at 1. Defendants suggest that "[r]ecusal, rather than an
objection to the rulings of the Magistrate Judge[,] is the appropriate
remedy, because the defendants are not so much questioning the substance
of the rulings as their probative value in establishing a course of
treatment that displays bias or prejudice against the defendants and in
favor of the plaintiff." Memorandum of Points and Authorities in Support
of Motion to District Judge to Stay Magistrate
Judge's Orders ("Memorandum in Support of Motion for Stay") at 3
[unnumbered] (emphasis supplied).*fn1
By the second of the two motions, defendants assert that the
undersigned "has taken a number of actions and issued a number of rulings
which call her impartiality into question, and appear to show bias or
prejudice in favor of the plaintiff and his counsel and against the
defendants and their counsel." Memorandum of Points and Authorities in
Support of Motion for Recusal of Magistrate Judge ("Memorandum in Support
of Motion for Recusal") at 1 [unnumbered].*fn2
As examples of rulings
which have been "one-sided[,]" defendants proffer, among others, the
denial of defendants' motion to compel interrogatory responses; the
imposition of sanctions "on de minimus issues"; and "repeatedly
requir[ing] defense counsel to support his statements with references to
the Federal Rules or with case citations[.]" Id. at 3-4 [unnumbered].
Finally, with no support other than counsel's affidavit, defendants claim
that "[i]t is widely asserted by lawyers who appear before [the
undersigned] that she is predisposed to and does treat the District's
lawyers differently than the plaintiffs' lawyers in those cases." Id. at
Plaintiff filed timely oppositions to both motions. See Plaintiff's
Opposition to Defendant District of Columbia's Motion to Stay [Magistrate]
Judge's Orders (Docket No. 39); Plaintiff's Opposition to Defendant
District of Columbia's Motion [for] Recusal of Magistrate Judge (Docket
No. 38). Defendants filed no reply to either opposition.
Upon consideration of the motions, plaintiff's oppositions thereto and
the entire record herein, both motions will be denied. Defendants'
motion for stay is predicated entirely upon their motion for recusal;
indeed, defendants suggest that "[i]t appears that the recusal, and
therefore the stay, are automatic." See Memorandum in Support of Motion
for Stay at 1 [unnumbered]. However, the undersigned finds that
defendants have failed to demonstrate that recusal is warranted.
Defendants move for recusal pursuant to Section 144 of Title 28 of the
United States Code, which requires that the moving party file "a timely
and sufficient affidavit" that the judge before whom the matter is
pending "has a personal bias or prejudice either against [the moving
party] or in favor of any adverse party[.]" 28 U.S.C. § 144. In
addition, the statute requires that the affidavit be accompanied by "a
certificate of counsel of record stating that it is made in good faith."
While Section 144 provides for the assignment of another judge where a
"timely and sufficient affidavit" alleging bias or prejudice has been
proffered, "it is still within the discretion of the trial court to
determine, at the outset, the legal sufficiency of the affidavit
supporting the motion." Holmes v. NBC/GE, 925 F. Supp. 198,
201 (S.D.N.Y. 1996) (citations omitted).*fn3 A Section 144 affidavit
is not timely unless filed "`at the earliest moment after [the movant
acquires] knowledge of the facts demonstrating the basis for such
disqualification.'" United States v. Sykes, 7 F.3d 1331, 1339 (7th Cir.
1993); see United States v. Occhipinti, 851 F. Supp. 523, 526 (S.D.N.Y.
1993). Among the factors to be considered in evaluating the timeliness
of the affidavit are (1) whether the movant has "substantially
participated" in the trial or pretrial proceedings; (2) whether the grant
of the motion would constitute "a waste of judicial resources"; (3)
whether the motion was made after entry of judgment; and (4) whether the
movant demonstrates "good cause for delay." United States v.
Occhipinti, 851 F. Supp. at 526; United States v. El-Gabrowny,
844 F. Supp. 955, 959 (S.D.N.Y. 1994).
Next, a "sufficient" affidavit must satisfy the following requirements:
(1) the facts must be material and stated with
particularity; (2) the facts must be such that if true
they could convince a reasonable man that a bias
exists; and (3) the facts must show the bias is
personal, and not judicial, in nature.
McClelland v. Gronwaldt, 942 F. Supp. 297, 300 (E.D.Tex. 1996) (citation
omitted). To be found sufficient as a matter of law, the affidavit must
show "`a true personal bias and allege specific facts' as opposed to mere
conclusions and generalizations." United States v. Occhipinti,
851 F. Supp. at 525; see United States v. Sykes, 7 F.3d at 1339 (holding
that "the facts averred must be sufficiently definite and particular to
convince a reasonable person that bias exists; simple conclusions,
opinions, or rumors are insufficient."). This Circuit has observed that
"judicial rulings . . . can only in the rarest circumstances evidence the
degree of favoritism or antagonism required . . . when no extra judicial
source is involved." Rafferty v. Nynex Corp., 60 F.3d 844, 848 (D.C.
Cir. 1995), citing Liteky v. United States 510 U.S. 540, 541 (1994).
Another district court has articulated what may be deemed the logic
underlying this principle:
[B]ecause it is in the nature of a judge's job to
rule, and any ruling must favor one side and disfavor
the other, rulings during the course of a case
generally are not regarded as evidence of bias, even
if it is alleged that a disproportionate number favor
United States v. El-Gabrowny, 844 F. Supp. at 959.
Finally, "a careful reading of [Section] 144 clearly shows that a
motion for recusal should be accompanied by both a factual affidavit and
a separate certificate that the affidavit was made in good faith."
United States v. Occhipinti, 851 F. Supp. at 526. Counsel's statement in
the affidavit that the allegations made therein are true does not satisfy
the requirements that counsel certify that the motion is made in good
Upon consideration of these authorities, the undersigned finds as a
matter of law that defendants have neither proffered a "timely and
sufficient affidavit," nor offered counsel's separate certificate that
the affidavit is made in good faith.*fn4 With respect to the timeliness
the affidavit, the undersigned finds that to the extent defendants
rely upon an apparent course of rulings spanning a period of nearly
four months before the motion was filed, defendants do not attempt to
demonstrate "good cause" for moving for recusal only after the
undersigned granted plaintiff's motion for sanctions. See December 11,
2001 Order at 1. Moreover, counsel who filed the motion was
"significantly involved" and indeed, the only counsel to appear;
however, counsel fails to address either the time that the facts which
form the basis of defendants' motion first became known, or the impact
upon judicial resources of recusal of the undersigned after the
undersigned's management of discovery since April, 2001.
Next, the undersigned finds that the affidavit is not "sufficient."
The basis of defendants' motion is principally the course of rulings by
the undersigned with respect to the parties' discovery disputes.
However, it is settled that "[a] court's judicial rulings . . . standing
alone, `almost never constitute [a] valid basis for a bias or partiality
motion.'" Holmes v. NBC/GE, 925 F. Supp. at 201, citing Liteky v. United
States, 510 U.S. at 555. Defendants also submit that "[i]t is widely
asserted by lawyers who appear before her that she is predisposed to and
does treat the District's lawyer differently than the plaintiffs' lawyers
in those cases." Declaration of Wayne C. Beyer, ¶ I. The affiant,
however, fails to identify any such lawyer; the matters in which any such
lawyer appeared; the context in which the assertion of predisposition was
made; or the factual basis of any such assertion. Accordingly, the
reference to the assertion is not "sufficiently definite and particular
to convince a reasonable person that bias exists[.]" See United States
v. Sykes, 7 F.3d at 1339.
ORDERED that defendants' Motion for Recusal of Magistrate Judge (Docket
No. 35) is DENIED; and it is
FURTHER ORDERED that defendants' Motion to District Judge to Stay
Magistrate Judge's Orders (Docket No. 34) is DENIED.