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Epstein v. Epstein

United States District Court, N.D. Illinois, Eastern Division

July 26, 2017

Barry Epstein, Plaintiff,
Paula Epstein, Defendant.


          Honorable Thomas M. Durkin United States District Judge

         Memorandum Opinion and Order Plaintiff seeks the recusal of this Court and Magistrate Judge Finnegan on the basis of bias against him and in favor of his former spouse, the defendant in this case.[1] He moves under two statutes: 28 U.S.C. § 144, which requires that a new judge be assigned if a party "files a timely and sufficient affidavit that the judge . . . has a personal bias against him or in favor of any adverse party, " and 28 U.S.C. § 455, which requires that judges disqualify themselves when their "impartiality might reasonably be questioned" or when they have "a personal bias or prejudice concerning a party.” While a federal judge has a duty not to sit where disqualified for bias, he has “a duty to sit where not disqualified which is equally as strong.” Laird v. Tatum, 409 U.S. 824, 837 (1972) (emphasis in original); see also In re United States, 572 F.3d 301, 308 (7th Cir. 2009) (“[N]eedless recusals exact a significant toll; judges therefore should exercise care in determining whether recusal is necessary, especially when proceedings already are underway.”). For the reasons set forth below, the plaintiff's recusal motion is denied.


         Recusal under section 144 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 United States v. Sykes, 7 F.3d 1331, 1339 (7th Cir. 1993) (citation omitted); 28 U.S.C. § 144. To be timely, a section 144 affidavit “must be filed as soon as the basis for disqualification is known.” Carter v. Meyers, 295 Fed. App'x 836, 837 (7th Cir. 2008) (citing Tezak v. United States, 256 F.3d 703, 717 n. 5 (7th Cir. 2001)). Moreover, the statutory requirement that counsel certify that the affidavit is filed in good-faith is “enforced strictly, ” United States v. Betts-Gaston, 860 F.3d 525, 537 (7th Cir. 2017), such that “[f]ailure to submit counsel's certificate of good faith alone is grounds for denying [a recusal] motion, ” United States v. Robinson, 2002 WL 31426182, at * 3 (N.D. Ill. Oct. 28, 2002). In passing on the legal sufficiency of the affidavit, the court must assume the truth of its factual assertions, provided they are “sufficiently definite and particular to convince a reasonable person that bias exists; simple conclusions, opinions, or rumors are insufficient.” Sykes, 7 F.3d at 1339.

         The defendant argues that the recusal motion is both untimely and procedurally defective. R. 275 at 2. She points out that the timeline of grievances set forth in the plaintiff's affidavit establishes that as early as January or February of 2017, the plaintiff became concerned that Judge Finnegan and this Court may have been biased against him and in favor of the defendant. Giving the plaintiff the benefit of the doubt that the cumulative effect of the courts' conduct over several months is what gives rise to this motion, as opposed to any single incident on any date in particular, the Court will not penalize the plaintiff for the timing of his filing. The defendant also correctly notes that plaintiff's counsel did not file a certificate of good faith in connection with his affidavit. While the Court would be justified in denying the recusal motion on that basis, see Betts-Gaston, 860 F.3d at 537, the court will assume, arguendo, that the affidavit was filed in good faith, and will rely on the legal memorandum filed by counsel to reach the merits of the motion. See Marino v. United States, 1999 WL 39008, at * 5-6 (N.D. Ill. Jan. 15, 1999) (assuming for purposes of analysis that the “strict procedural requirements of § 144” were met).

         As to the merits, because the standard of “personal bias” bears the same meaning under both sections 144 and 455, see Id. at *6 (citing authority), the Court will simultaneously analyze the purported bias under both statutes. The relevant question for purposes of disqualification is whether “the judge's impartiality might reasonably be questioned by a well-informed, thoughtful observer rather than [by] a hypersensitive or unduly suspicious person.” O'Regan v. Arbitration Forums, Inc., 246 F.3d 975, 988 (7th Cir. 2001) (internal quotation marks and citation omitted). The standard is an objective one: “That an unreasonable person, focusing only on one aspect of the story, might perceive a risk of bias is irrelevant . . . [A] reasonable person is able to appreciate the significance of the facts in light of relevant legal standards and judicial practice and can discern whether any appearance of impropriety is merely an illusion.” In re Sherwin-Williams Co., 607 F.3d 474, 477-78 (7th Cir. 2010); see also Matter of Mason, 916 F.2d 384, 386 (7th Cir. 1990) (“An objective standard is essential when the question is how things appear to the well-informed, thoughtful observer rather than to a hypersensitive or unduly suspicious person. Because some people see goblins behind every tree, a subjective approach would approximate automatic disqualification”).

         A. Rulings by the Court and Judge Finnegan

         The plaintiff's affidavit, in large part, tracks the progress of the docket in this matter, summarizing rulings made by Judge Finnegan and this Court regarding scheduling, discovery, and the protected or privileged status of various information relevant to the plaintiff's claims.[2] R. 268-1 at 1-3. The plaintiff prefaces this chronology with his conclusion that “both judges have consistently ruled against me and blocked my progress at every turn.” Id. ¶ 2. It is well established that “rulings by the judge almost never constitute a valid basis for a bias or partiality motion.” Szach v. Village of Lindenhurst, 2015 WL 3964237, at *4 (N.D. Ill. June 25, 2015) (internal quotation marks omitted) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). Indeed, they will only do so “if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.” Liteky, 510 U.S. at 555.

         No such favoritism or antagonism can be gleaned from the rulings in this case. Even the selected docket entries on the plaintiff's timeline show multiple orders favorable to the plaintiff's litigation position. See R. 268-1 ¶¶ 2a, 2h (referring to R. 69 and R. 154, granting the plaintiff's motions to seal), id. ¶ 2f (referring to R. 114, granting the plaintiff's motion to extend fact discovery), id. ¶ 2j (referring to R. 183 and R. 196, effectively granting all substantive aspects of the plaintiff's motion to compel a forensic review of the defendant's laptop computer), id. ¶ 2k (referring to R. 198, granting the plaintiff additional time to respond to the defendant's motion to strike his jury demand). A more complete review of the docket reveals a number of additional rulings benefiting the plaintiff. See, e.g., R. 98 (extending discovery deadlines), R. 139 (continuing the trial date); R. 156 and R. 187 (extending expert discovery deadlines).

         Moreover, bias is not simply a matter of counting rulings against you and rulings in your favor. Indeed, half of the litigants before the Court are likely disappointed by its rulings, since, for the most part, the Court can only decide an issue in favor one side. To the extent the plaintiff disputes the correctness of certain rulings, he may raise his concerns on appeal, but recusal is not an appropriate remedy. See In re City of Milwaukee, 788 F.3d 717, 722 (7th Cir. 2015) (“Despite our best efforts, federal judges sometime make mistakes or see factual or legal issues differently. Such ordinary errors or disagreements provided a basis for appeal, but not recusal.”). Still, to clarify the courts' position, the following responses to the plaintiff's affidavit are warranted.

         1. Scheduling

         The plaintiff expresses frustration with the pace of discovery and the trial date set in this case, claiming he needed more time to adequately marshal evidence given what he perceives to be the complexity of his claims. See R. 168-1 ¶¶ 2b, 2e, 2l, 2p, 6-8. While the Court understands that the plaintiff carries the burden of proving his claims, it is likewise true that he holds the proverbial reins in the litigation, deciding which claims to prosecute in the first place. Moreover, where the defendant carries the burden on her affirmative defenses, as she does here, the discovery and trial schedules impact preparation for both sides, and so tend to be relatively neutral in their effect. It is therefore difficult for the plaintiff to claim that the schedule was biased against him and in favor of the defendant.

         The Court notes now, as it has previously, that discovery in this case was open for more than five months, which is typical of a case of this size and complexity. See R. 158 (Hrg. Tr. July 6, 2017) at 4. In order to manage its docket of more than 350 cases, this Court sets trial dates, and tries whenever possible to keep them. Doing so allows for the orderly administration of the Court's calendar and, at times, encourages settlement. The trial date in this case has been extended twice and discovery deadlines have been extended accordingly. While it is clear the plaintiff desires even more time, the Court is required to balance that desire with the defendant's equal right to have the claims against her expeditiously adjudicated. The scheduling in this case does not reflect bias, but practicality and consideration of interests on both sides.

         2. Scope ...

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