United States District Court, N.D. Illinois
February 11, 2004.
RICHARD FRANZEN, Plaintiff,
ELLIS CORPORATION, Defendant
The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Presently pending before the Court is Plaintiffs Motion to Disqualify.
Plaintiff seeks recusal of the undersigned judge in this case pursuant to
the provisions of 28 U.S.C. § 144, 455(a), and 455(b)(1).
Section 144 Recusal
Section 144 requires recusal "if a party files a timely and sufficient
affidavit that the judge has `a personal bias or prejudice' against him
or in favor of any adverse party." 28 U.S.C. § 144; United States v.
Sykes, 7 F.3d 1331, 1339 (7th Cir. 1993) (Sykes). Recusal is mandatory
once a party submits a timely and sufficient affidavit and his counsel
presents a certificate stating that the affidavit is made in good faith.
See Sykes, 7 F.3d at 1339.
A Section 144 affidavit is timely if it is filed at the earliest moment
after the movant acquires knowledge of the facts that demonstrate the
basis for the disqualification. See Sykes, 7 F.3d at 1339. When
determining the legal sufficiency of the affidavit, the court must assume
the truth of its factual assertions even if the court knows the
allegations to be false. However, the fads averred must be sufficiently
definite and particular to convince a reasonable person that bias
conclusions, opinions or rumors are not sufficient. The affidavit must
demonstrate that the alleged bias is personal rather than judicial and
that the bias stems from an extra-judicial source some source other
than what the judge has learned through participation in the case. See
Sykes, 7 F.3d at 1339. These requirements are strictly construed to
prevent abuse in light of the statute being heavily weighed in favor of
recusal. See Sykes, 7 F.3d at 1339.
In support of his Section 144 recusal, Plaintiff has submitted an
affidavit in which he avers that bias or prejudice is demonstrated by (1)
the refusal to allow Plaintiff to sit for his deposition for only one or
two hours at a location near his home despite plaintiff's disability,
including a broken spine and incontinence; (2) requiring Plaintiff to
appear for his deposition at the courthouse in Chicago despite knowledge
of Plaintiffs disabilities and inability to do so based on Plaintiffs
physician notes, and (3) the denial of two of Plaintiff's emergency
motions for a protective order regarding Plaintiffs inability to be
deposed in Chicago because of his disability. In addition, Plaintiff
avers that extreme bias and prejudice against him and his attorney is
demonstrated by the judge: (1) ignoring a question from Plaintiffs
attorney on October 8 and 21, 2003; (2) not allowing the case to be
recalled on November 19, 2003, unless Defendant wanted the case recalled
and unnecessary yelling at Plaintiffs counsel to leave the courtroom; (3)
yelling at Plaintiffs counsel to step back from the podium when
Plaintiffs attorney attempted to ask a question on December 3, 2003; (4)
denying, ignoring, or requiring motions be in writing for oral motions by
Plaintiffs counsel, whereas, Defendant's oral motions were immediately
granted; and (5) granting Defendant's Motion for Sanctions on November
19, 2003, in relation to Plaintiffs counsel's alleged inappropriate
behavior during Plaintiffs depositions.
Plaintiffs affidavit fails to satisfy the stringent requirements set
forth in Section 144. First, several of the allegations pertain to
conduct by the Court that occurred months prior to Plaintiffs filing his
affidavit and Motion to Disqualify on December 17, 2003. These
allegations include the granting of a protective order and a desposition
limit of three-and-one-half hours on August 14, 2003 and the October 2003
court appearances. Two to three months after the allegedly prejudicial
conduct is not "at the earliest possible moment" after discovery of the
prejudice. See Sykes, 7 F.3d at 1339.
Moreover, the averments in Plaintiffs affidavit fail to demonstrate
that the alleged bias is personal rather than judicial and that the bias
stems from some source other than that which the judge has learned
through participation in the case. Plaintiff takes issue with the Court's
rulings pertaining to his deposition and Plaintiffs physical disabilities
as well as the Court's conduct toward Plaintiffs counsel. However, all of
these allegations relate to the Court's rulings and alleged conduct after
it was brought to the Court's attention by Defendant's Motion for
Sanctions that Plaintiffs counsel's conduct was improper during
Plaintiffs deposition. Plaintiffs counsel made more than 200 objections
and repeatedly attempted to coach the Plaintiff. This conduct was the
basis of Defendant's Motion for Sanctions, which was granted by the Court
on November 19, 2003. It was the Plaintiffs counsel's sanctionable
behavior which frustrated defense counsel's efforts to depose Plaintiff
that produced the alleged bias and prejudicial behavior. Accordingly, the
alleged bias cannot be said to stem from an extrajudicial source.
Plaintiffs affidavit fails to demonstrate that the alleged bias is
personal rather than judicial and that the alleged bias stems from an
extra-judicial source other than what the Judge has learned through
participation in the case. Accordingly, Plaintiffs Motion to Disqualify
Pursuant to Section 144 is denied.
Sections 455(a) and 455(b)(1) Recusal
Plaintiff also seeks to disqualify the Court pursuant to
28 U.S.C. § 455(a) and 455(b)(1). Section 455(a) requires a federal judge
to "disqualify himself in any proceeding in which his impartiality might
reasonably be questioned." 28 U.S.C. § 455(a). The inquiry under Section
455 is evaluated on an objective basis. See Liteky v. United States,
510 U.S. 540, 548 (1994) (Liteky). In other words, "whether a reasonable
person perceives a significant risk that the judge will resolve the case
on a basis other than on the merits." Hook v. McDade, 89 F.3d 350, 353
(7th Cir. 1996) (citation omitted) (Hook).
Section 455(b)(1) provides that a judge shall disqualify himself if he
"has a personal bias or prejudice concerning a party."
28 U.S.C. § 455(b)(1). Section 455(b)(1) more specifically addresses the
prejudice and bias grounds of the catchall provision of Section 455(a).
See Ramirez v. Elgin Pontiac GMC, Inc., 187 F. Supp.2d 1041, 1045 (N.D.
Ill. 2002). The Section 455(b)(1) inquiry is also evaluated on an
objective basis, by determining "whether a reasonable person would be
convinced that the judge was biased." Brokaw v. Mercer County,
235 F.3d 1000, 1025 (7th Cir. 2000). Bias or prejudice must be proven by
compelling evidence. See Hook, 89 F.3d at 335.
The alleged bias, under both Sections 455(a) and 455(b)(1), sufficient
to warrant recusal also must stem from an extrajudicial source. Liteky,
510 U.S. at 554. "[O]pinions formed by the judge on the basis of facts
introduced or events occurring in the course of the current proceedings,
or of prior proceedings, do not constitute a bias for a bias or
partiality motion unless they display a deep-seated favoritism or
antagonism that would make fair judgment impossible." Liteky, 510 U.S. at
555. However, unlike a motion pursuant to 28 U.S.C. § 144, the judge is
not required to accept the factual allegations as true when evaluating a
motion pursuant to Section 455. See United States v.
Kehlbeck, 766 F. Supp. 707, 712 (S.D. Ind. 1990).
The grounds that Plaintiff argues in support of his motion for recusal
pursuant to Section 455(a) and 455(b)(1) are the same as those discussed
above. Accordingly, the above analysis applies to both subsections of
The averments discussed above regarding the August 2003 order and
October 2003 appearance fail to demonstrate bias or prejudice to warrant
recusal pursuant 1:0 Section 455. On August 14, 2003, the Court ruled on
two motions for a protective order filed by the Plaintiff. The Court
granted Plaintiffs Motion for a Protective Order regarding
confidentiality of discovery. The Court also limited Plaintiffs
deposition to three-and-one-half hours per day. Plaintiff did not object
to the Court's order limiting the deposition time to three-and-one-half
hours per day.
As to Plaintiffs counsel's allegation that he was ignored in October
2003, a review of the transcripts of those proceedings fail to
demonstrate bias or prejudice by calling the next case. Furthermore, when
the next case was called, Plaintiffs counsel did not inform the Court
that he still needed to be heard.
None of the other incidents alleged by Plaintiffs counsel demonstrate
bias and do not stem from an extrajudicial source. Instead, the actions
taken by the Court which the Plaintiff alleges show bias are due to
Plaintiffs counsel's sanctionable behavior which frustrated the
Defendant's right to depose the Plaintiff.
Generally, Plaintiffs averments can be separated into two categories:
(1) judicial rulings and (2) critical remarks; neither of these constitute
a valid basis for recusal. Many of Plaintiffs averments take issue with
rulings that were simply adverse to Plaintiff. However, "judicial rulings
almost never constitute a valid reason for bias or partiality motion."
Liteky, 510 U.S. at 555. In this
regard, it should also be noted that Plaintiff fails to include all
the relevant facts beyond those that he selectively chose to support his
accusation of prejudice. For example, Defendant's Motion for Sanctions
was granted, but only after it was fully briefed by both parties;
Plaintiff's counsel had an opportunity to refute the allegations
contained in Defendant's motion. In addition, when the Motion for
Sanctions was granted, the Court initially ordered that Plaintiffs
deposition continue at the courthouse. However, to accommodate Plaintiffs
counsel's request, the Court, on Plaintiffs counsel's oral motion,
immediately re-ordered that the deposition be held closer to Plaintiffs
residence. After Plaintiff violated the Court's November 19, 2003 Order,
the Court did not immediately grant Defendant's motion to dismiss
Plaintiffs complaint on these grounds but set a briefing schedule for
both parties on this issue. When Plaintiff later failed to appear at the
courthouse for his deposition, the Court gave Plaintiff three more
opportunities to appear or present current competent medical evidence, he
was unable to do so.
The remaining averments relate to the Court's alleged critical,
disapproving or hostile remarks to Plaintiffs counsel. Even assuming, for
purposes of this motion, Plaintiffs counsel is correct, "judicial remarks
made during the course of a trial that are critical or disapproving of,
or even hostile to, counsel, the parties, or their cases, ordinarily do
not support a bias or a partiality challenge." Liteky, 510 U.S. at 555.
Expressions of impatience, annoyance, dissatisfaction, and anger fail to
establish bias or partiality. See Liteky, 510 U.S. at 555-56.
Plaintiffs averments fail to demonstrate that the Court's conduct
toward Plaintiffs counsel demonstrates bias or prejudice under either
Section 455(a) or 455(b)(1).
Based on the above, Plaintiffs Motion to Disqualify is denied.
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