Opinion
EP-02-CA-0412-FM.
June 1, 2005
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S MOTION TO DISQUALIFY TRIAL JUDGE
On this day, the Court considered "Plaintiff's Motion to Disqualify Trial Judge" [Rec. No. 61], "Defendant's Response to Plaintiff's Motion to Disqualify Trial Judge" [Rec. No. 67], and "Plaintiff's Reply to Defendant's Response to Plaintiff's Motion to Disqualify Trial Judge" [Rec. No. 68] filed in the above-captioned cause. After careful consideration, this Court finds that the Plaintiff's affidavits are legally insufficient to require or warrant recusal and therefore Plaintiff's motion to disqualify the undersigned is DENIED.
I. BACKGROUND
"Plaintiff's Original Complaint" [Rec. No. 1] was filed on September 3, 2002. On September 12, 2003, this cause was reassigned from the docket of Judge Briones to this Court. [Rec. No. 14]. The complaint alleges medical malpractice by the Defendant United States for the failure to preserve, maintain, and transfer a bone flap taken from the skull of the minor Jacob Telles during treatment at William Beaumont Army Medical Center in El Paso, Texas. On August 10, 2004, the Court entered the "Order Granting Agreed Motion to Amend Scheduling Order and Trial Date" [Rec. No. 57], revising the previous trial date and set the case for trial on April 11, 2005. The April 11, 2005 trial date, set and agreed upon by the parties, was the fourth trial date set in this cause. [Rec. Nos. 8, 45, 55, 57]. The last amended scheduling order explicitly stated that no further continuances of the scheduling order would be granted. [Rec. No. 56].
Plaintiff Gloria Telles ("Plaintiff") and her attorney, Walter L. Boyaki ("Boyaki"), filed affidavits in support of the "Plaintiff's Motion to Disqualify Trial Judge." [Rec. No. 61]. This motion, filed a mere eighteen days before the scheduled trial, argues that Plaintiff cannot receive a fair trial before the undersigned judge. In response to the recusal motion, this case was stayed on March 26, 2005 by order of this Court. [Rec. No. 63].
II. ANALYSIS
A. Disqualification under 28 U.S.C. § 144
Plaintiff argues that the undersigned should be recused pursuant to 28 U.S.C. § 144. Section 144 states in relevant part:
Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.28 U.S.C. § 144. Section 144 relates only to charges of actual bias. See In re Faulkner, 856 F.2d 716, 720 n. 6 (5th Cir. 1988).
The Court notes that Plaintiff elected to attempt disqualification of the undersigned pursuant to 28 U.S.C. § 144 only and not 28 U.S.C. § 455.
Once a motion to disqualify is filed under § 144, the judge must pass on the legal sufficiency of the affidavit, but may not pass on the truth of the matter alleged. Henderson v. Dept. of Public Safety and Corrections, 901 F.2d 1288, 1296 (5th Cir. 1990). The sufficiency of the affidavit is determined as a matter of law. Parrish v. Bd. of Commissioners of Alabama State Bar, 524 F.2d 98, 100 (5th Cir. 1975), cert. denied, 425 U.S. 944 (1976). If the affidavit is insufficient, the motion to disqualify should be denied. Henderson, 901 F.2d at 1296.
The Court will not assess the truthfulness of the matters asserted in the affidavit. The Court's function is to assess the legal sufficiency of the affidavit. The Fifth Circuit has set forth a clear test to determine the legal sufficiency. An affidavit is legally sufficient if it meets the following three-part test: "1. The facts must be material and stated with particularity; 2. The facts must be such that, if true they would convince a reasonable man that bias exists. 3. The facts must show the bias is personal, as opposed to judicial, in nature." Parrish, 524 F.2d at 100. The challenged judge should make the legal sufficiency determination himself and not transfer the motion to recuse unless unusual circumstances exist, for the challenged judge is most familiar with the alleged bias or conflict of interest. Chitimacha Tribe of Louisiana v. Harry L. Laws Co., 690 F.2d 1157, 1165 (5th Cir. 1982).
The focus of 28 U.S.C. § 144 is on actual bias against a party. See Henderson v. Department of Public Safety and Corrections, 901 F.2d 1288, 1296 (5th Cir. 1990). "Bias for or against an attorney, who is not a party, is not enough to require disqualification unless it can also be shown that such a controversy would demonstrate a bias for or against the party itself." Id. at 1296. For bias to rise to the level that would require disqualification of the trial judge, the Fifth Circuit has stated that "it must be of a continuing and personal nature and not simply bias against the attorney or in favor of another attorney because of his conduct." See id (emphasis added).
In Liteky v. United States, the Supreme Court held that "[j]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion." 510 U.S. 540, 555-556 (1994). The Fifth Circuit has similarly held that under § 144, the alleged bias must be "personal," as distinguished from judicial, in nature. Parrish, 524 F.2d at 100; United States v. Serrano, 607 F.2d 1145, 1150 cert. denied, 445 U.S. 965 (1980); Steering Committee v. Mead Corp., 614 F.2d 958 (5th Cir. 1980); Douhit v. Jones, 619 F.2d 527, 538 (5th Cir. 1980). Therefore, the motion to disqualify may not ordinarily be "predicated on the judge's ruling in the instant case or in related cases, nor on a demonstrated tendency to rule any particular way, nor on a particular leaning or attitude derived from his experience on the bench." Phillips, 637 F.2d at 1020.
B. Affidavit of Plaintiff Gloria Telles In Support of Recusal
Plaintiff Gloria Telles states in her affidavit that " I believe Judge Frank Montalvo has a personal bias against me and Jacob as Plaintiffs in this case and in favor of the government by reason of which the Judge is unable impartially to exercise his functions as Judge in this cause." [Rec. No. 61] (emphasis added). Further, Plaintiff states that alleged "attacks" by this Court against Boyaki "are to my belief unwarranted" and "Mr. Boyaki has in my opinion conducted himself properly." [Rec. No. 61] (emphasis added). It is important to note that Ms. Telles has not yet even personally appeared before this Court and the trial on the merits has not commenced.
As noted above, while the Court cannot pass on the truth or falsity of the factual allegations, the Court must pass on the legal sufficiency of the affidavit. See Henderson v. Dept. of Public Safety and Corrections, 901 F.2d 1288, 1296 (5th Cir. 1990). Plaintiff's affidavit is devoid of the required factual allegations that must be "stated with particularity." See id. The Fifth Circuit has further held that an affidavit is legally insufficient under § 144 if it is based upon "information and belief" rather than personal knowledge. Id. All of these unsupported allegations by Plaintiff allege bias related to judicial functions in causes to which she was not a party. While Plaintiff states that she "has obtained the attached affidavit, order, and transcript," there are still no material facts presented based upon her personal knowledge. Plaintiff's opinions and beliefs about judicial bias are based on information and documents relayed to her by counsel. Plaintiff simply alleges conclusions and speculations based upon opinion without the requisite personal knowledge. Accordingly, even accepting all factual allegations in Plaintiff's affidavit as true, there is no evidence which would warrant recusal under § 144.
C. Affidavit of Walter L. Boyaki In Support of Recusal
Plaintiff's counsel, Boyaki, submitted an affidavit arguing that Plaintiff cannot receive a fair trial before this Court based upon Boyaki's personal knowledge and experience appearing before the undersigned in the following causes: Guile v. United States (EP-03-CV-0021-FM); Canion v. United States (EP-03-CV-347-FM); and Yee v. United States (EP-03-CV-352-FM). Boyaki states in his affidavit that the Court is personally biased against him and the "interests of justice require Judge Montalvo to step aside in any case where I represent a party." [Rec. No. 61]. Boyaki points to a number of rulings and comments made by the Court he feels were unfavorable, as evidence of personal bias. Once the Court sets aside Boyaki's personal beliefs, opinions and speculations in his affidavit, Boyaki relies on the following factual allegations: (1) the Court ordered him to sit down before he said a word during the Canion trial; (2) the Court in the Canion case made factual determinations based solely on a motion filed by the Government without allowing Plaintiff's counsel any opportunity to respond; (3) the Court granted "one Defendant's Motion for Judgment as a matter of law that took away approximately $300,000 of a jury verdict of over one million dollars" in the Guile trial; (4) the Court's ruling on an objection during the Guile trial where the Court threatened Boyaki with sanctions; (5) the Court did not allow Plaintiff sufficient discovery time despite repeated requests by counsel in Yee. [Rec. No. 61]. In addition to those factual assertions, Boyaki believes that "Judge Montalvo has in the past and will in the future continue to punish, criticize, and embarrass me in front of my clients. . . . Any time he has the opportunity to hurt me, he will." [Rec. No. 61].
The Court notes that Guile v. United States and Yee v. United States, which are the two cases that comprise Boyaki's third, fourth and fifth arguments listed above, are both currently on appeal before the Fifth Circuit. The law is well-established that a Court's adverse rulings do not establish personal bias. See, e.g., United States v. Partin, 312 F.Supp. 1355, 1358 (5th Cir. 1970) ("inferences drawn from prior judicial determinations are insufficient grounds for recusal because it is the duty of the judge to rule upon issues of fact and law and questions of conduct which happen to form a part of the proceedings before him."). Additionally, even though a judge's ruling may be incorrect and subject to reversal on appeal for error, it does not mean that the ruling was motivated by personal bias. See In re International Business Machines Corp., 618 F.2d 923, 928-930 (2d Cir. 1980).
In reviewing a motion for recusal under § 144, the Court will accept as true the allegations contained in the affidavits in support of the motion, regardless of truthfulness in fact. The Court, thus, turns to the sufficiency of Boyaki's affidavit as a matter of law. Boyaki's affidavit is devoid of objective, independent material facts stated with particularity that would warrant recusal under § 144. As an initial matter, there are no statements in the affidavit in support of disqualification based on personal, or extrajudicial, bias. All of the facts and allegations set forth in petitioner's affidavit relate to purely judicial proceedings involving Boyaki and the Court. See United States v. Grinnell Corp., 384 U.S. 563, 583 (1966) ("The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.").
In Liteky v. United States, the Supreme Court declared:
First, judicial rulings alone almost never constitute valid basis for a bias or partiality motion . . . Second, opinions 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 basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible . . . Not establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display. A judge's ordinary efforts at courtroom administration, even a stern and short-tempered judge's ordinary efforts at courtroom administration-remain immune.510 U.S. 540, 541 (1994). This language is plainly applicable to the case at bar. Boyaki is complaining, in essence, about the manner in which the Court, in his eyes, has treated him as an attorney before the Court. Boyaki's affidavit is replete with allegations that involve typical judicial rulings that do not establish a basis for any sort of bias. Additionally, nowhere in Boyaki's affidavit does he present events that would amount to "deep-seated favoritism or antagonism that would make fair judgment impossible." Liteky, 510 U.S. at 541.
The Fifth Circuit has consistently held that "[b]ias for or against an attorney, who is not a party, is not enough to require disqualification unless it can be shown that such a controversy would demonstrate a bias for or against the party itself." Henderson, 901 F.2d at 1296. The Fifth Circuit further held that the bias against an attorney "must be of a continuing and personal nature and not simply bias against the attorney or in favor of another attorney because of his conduct" to require recusal. Id. at 1051. Boyaki contends that it is his "opinion that the Plaintiff cannot receive a fair trial before Judge Montalvo." [Rec. No. 61]. Nowhere does Boyaki attempt to explain how the alleged bias against him would demonstrate a bias against Plaintiff Telles. Instead, Boyaki argues that "[i]t is inefficient and improper for an attorney to have to worry about every action being subject to contempt charges, monetary sanctions, or attacks on his physical safety. I cannot do my job." [Rec. No. 61]. The Court notes that Boyaki has never been held in contempt or sanctioned and finds that Boyaki's affidavit is meritless and the alleged bias against him cannot be shown to be the kind of controversy that would rise to the level demonstrating a bias against Plaintiff Telles herself. Needless to say, there has been no "attack on his physical safety."
"The Supreme Court has held that "judicial remarks 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 partiality challenge." See Liteky v. United States, 510 U.S. 540, 554-55 (1994). Such remarks will require disqualification, however, "if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible." Id. Boyaki's affidavit argues that the following "judicial remark" from the Guile trial points to the Court's bias: "This is the fifth day of the trial. We mistry this case, you are going to pay everybody's attorney fees. Do you understand that? You personally. Do you understand that?" [Rec. No. 61]. According to Boyaki, "Judge Montalvo overeacted to my question and personally threatened me with sanctions." [Rec. No. 61]. Boyaki cannot point the Court to any statements that rise to the level of "grossly inappropriate" or "patently offensive." See Andrade v. United States, 338 F.3d 448, 457 (5th Cir. 2003). Even assuming that it was an overreaction of the undersigned as Boyaki claims, it was brought about by Boyaki's conduct. Further, it cannot be said that the Court was motivated by "such a high degree of favoritism or antagonism as to make fair judgment impossible" based on this remark or any other. See Liteky, 510 U.S. at 556.
Boyaki's affidavit states that "[t]here are three other Judges in the Western District of Texas. I have had no problem with any of them, either in state court when each served there, or now in federal court." [Rec. No. 61]. While the Court does not have such a "problem" with Boyaki, the Court notes that having a problem with a particular Judge is not the appropriate standard for recusal. Further, the Court recognizes the Fifth Circuit's posture that the recusal decision should "avoid giving parties a random veto over the assignment of judges." See Travelers Ins. Co. v. Liljeberg Enters., Inc., 38 F.3d 1404, 1409 n. 8 (5th Cir. 1994).
The Court assumes Boyaki meant to refer to the El Paso Division of the Western District of Texas, for there are four district court judges in the El Paso Division and thirteen district judges total in the Western District of Texas.
While the Court accepts the allegations in Boyaki's affidavit as true for purposes of its ruling on the recusal motion, the Court notes that Boyaki seems to rely on two main events to justify the recusal. First, Boyaki claims that during the Canion trial, the undersigned without sufficient provocation directed him to sit down. According to Boyaki, this was done in front of his client and this incident "indicates an antagonism towards me that is much more than a simple disagreement over the rules of evidence or a need to maintain courtroom decorum." [Rec. No. 61]. Second, Boyaki argues that during the Canion case, the Court made factual determinations based only on a motion filed by the government without allowing Plaintiff's counsel to address the "unfavorable" and "disparaging" allegations.
In "Plaintiff's Reply to Defendant's Response to Plaintiff's Motion to Disqualify Trial Judge" [Rec. No. 68], Plaintiff, herself, calls these instances "the core events of Plaintiff's Motion to Disqualify."
Defendant's response in regards to the alleged improper exchange between the Court and Boyaki in the Canion trial sheds light on the situation. Steve Kozak, the Court Security Officer in the Canion trial, stated in his affidavit:
I have an independent recollection of an exchange between Mr. Boyaki and Judge Montalvo where Mr. Boyaki raised his voice with the Judge, addressed the Judge in a disrespectful tone while waving his arms as he walked from his seat up to the railing next to the podium and refused to sit down when instructed to do so by the Court. This incident occurred after Judge Montalvo overruled one of Mr. Boyaki's objections.
[Rec. No. 67]. Officer Kozak further stated "Judge Montalvo remained calm and respectful towards Mr. Boyaki. . . . I have never seen an attorney behave like Mr. Boyaki did. In my opinion, his actions were a challenge to the authority of the Court, which is why I stood up before the Judge even said my name." [Rec. No. 67]. Boyaki argues the transcript shows that he did not speak before he was ordered to sit down. Regardless of the accuracy of Boyaki's recollection, maintaining courtroom decorum and order is uniquely within the authority of the trial judge and one of the most fundamental responsibilities of the trial judge. Since the early days of the Republic, "[c]ourts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum, in their presence." See Anderson v. Dunn, 19 U.S. 204, 227-28, (1821).
Boyaki's second main argument for recusal centers on an incident in the Canion case in which Boyaki claims the Court issued an "Order" [ Canion, Rec. No. 20] that made factual determinations based only on the motion filed by the government without allowing Plaintiff's counsel to address the unfavorable and disparaging allegations. The Court again notes that in a motion for recusal pursuant to 28 U.S.C. § 144, the judge must pass on the legal sufficiency of the affidavit, but may not pass on the truth of the matter alleged. The docket sheet in Canion lays out the facts generally referred to in Boyaki's allegations. Although the Court will not assess the truthfulness of the matters asserted in Boyaki's affidavit, it will set forth the chronology of events illustrated in the Canion docket for the sake of completeness.
During the Canion case, miscommunications between the Court staff and the counsel of record caused the granting of a motion to amend the scheduling order without Defendant United States having an opportunity to respond. As soon as the situation became clear to the Court, it requested the parties submit proposed scheduling deadlines in order to rectify the situation. [ Canion, Rec. No. 16 (12/2/04)]. In response, the Court received "Plaintiff's Proposed Amended Scheduling Deadlines" [ Canion, Rec. No. 17 (12/10/04)] and "Defendant's Proposed Scheduling Deadlines" [ Canion, Rec. No. 21 (received 12/10/2004 and docketed 12/15/04)]. Defendant's submission requested the Court order a deposition date for Plaintiff's witness and set other scheduling deadlines. On December 13, 2004, "Plaintiff's Motion to Allow Response to Defendant's Proposed Scheduling Deadlines" [ Canion, Rec. No. 19] asked the Court to allow a response to Defendant's submission regarding proposed scheduling deadlines. On December 16, 2004, this Court issued the "Order" [ Canion, Rec. No. 20], from which Boyaki now argues that "disparaging allegations are made by opposing counsel and accepted by the court" and "at a minimum, one must conclude that the Judge has a bias against Plaintiff's counsel." ["Plaintiff's Reply to Defendant's Response to Plaintiff's Motion to Disqualify Trial Judge"]. This order amended the scheduling deadlines and set dates for Plaintiff's expert deposition date. In response to this order, Boyaki filed "Plaintiff's Motion to Clarify the Court's Previous Order." [ Canion, Rec. No. 23 (12/17/04)].
Due to a clerical error, the record entries were not made in chronological order as required.
Boyaki alleges that "[w]hen I received the Court's Order [ Canion, Rec. No. 20], I believed that a situation was developing in the Canion case where government's counsel could imagine that Judge Montalvo did not like me and could proceed towards trial accordingly." [Rec. No. 61]. The language Boyaki finds offensive in the "Order" [ Canion, Rec. No. 20] is, with emphasis added by Boyaki in [Rec. No. 61], as follows:
Attorney for the Defendant has brought to the Court's attention his repeated attempts to have Plaintiffs attorney's make available Dr. Monsivais for deposition. Prior to the original discovery deadline of October 20, 2004, Defense counsel requested to take Dr. Monsivais' deposition on seven separate occasions. Plaintiff failed to make Dr. Monsivais available and only responded at the eleventh hour to these attempts. On two further occasions, through letters dated November 2, 2004 and December 3, 2004 counsel for the defendant tried to establish specific dates as to when Dr. Monsivais would be available. Instead of amicably and efficiently resolving this issue by selecting a mutually convenient date, Plaintiff's counsel again seeks delay. As a result of Plaintiff's counsel repeated avoidance of selecting a deposition date, this Court must intervene.
. . .
IT IS FURTHER ORDERED that "Plaintiff's Motion to Allow Response to Defendant's Proposed Scheduling Deadlines" [Rec. No. 19] is DENIED. Counsel for Plaintiff has had over 3 months to propose a date that would have been convenient to him, and therefore this Court will not entertain further excuses.
[Rec. No. 61].
Boyaki failed to mention that subsequent to his motion to clarify, the Court conducted a status conference with attorneys David Dalition ("Dalition") and Boyaki in chambers. At this meeting, the Court, Dalition and Boyaki worked out the scheduling dispute in a manner that satisfied both sides. The Court subsequently denied as moot Plaintiff's Motion to Clarify because "the matter has been resolved." [ Canion, Rec. No. 24 (1/11/05)]. A careful review and analysis of the second of Boyaki's core events leaves no doubt that it was nothing more than an instance of miscommunication between the parties and the Court. Further, the Court promptly resolved the situation with minimal loss of time and no adverse consequences to anyone.
Mr. David Dalition, Special Assistant United States Attorney, served as opposing counsel to Boyaki in the instant case as well as Canion v. United States (EP-03-CV-347-FM); and Yee v. United States (EP-03-CV-352-FM); and co-counsel in Guile v. United States (EP-03-CV-0021-FM).
D. Motion Filed for Improper Purposes
"Defendant's Response to Plaintiff's Motion to Disqualify Trial Judge" [Rec. No. 67] argues that
Plaintiff's counsel chose to file this frivolous motion with no basis in objective, particularized fact, and no basis warranted under the existing case law of the Fifth Circuit. One could only conclude that he did so simply because he wanted to and thought he could, and not because he had a conducted a reasonable inquiry and found his position to be justified in either fact or law.
Defendant further argues that "any competent attorney who performed even a brief review of the published case law on recusal would clearly conclude that such allegations are legally insufficient to support the claimed charge of actionable bias." [Rec. No. 67]. Defendant cites as evidence the fact that Boyaki was scheduled for trial in another case in another jurisdiction on the same day as this case. Defendant consequently alleges that the motion for recusal was brought for "the improper purposes of delay, harassment and forum shopping." [Rec. No. 67]. In "Plaintiff's Reply to Defendant's Response to Plaintiff's Motion to Disqualify Trial Judge" [Rec. No. 68], Boyaki counters Defendant's assertion that Boyaki requested the trial date in Houston by stating that he "did not request any such date and, again, did nothing wrong or out of order." While Boyaki asserts that "all the defense counsel does is imply some conspiracy, unsupported by facts," Boyaki does not dispute that there was in fact a scheduling conflict and he had a trial set for April 11, 2005 in Houston. [Rec. No. 68].
Defendant's Exhibit (2) is a letter of March 10, 2005, from Boyaki to Dalition, in which Boyaki writes: "I am having scheduling problems with the Telles case. I am set for trial on the same day in Houston on 43 clients."
The Court finds that Plaintiff's motion for recusal is not well founded. It appears that Boyaki used this motion for dilatory purposes. The apparent reason for the filing of this motion became evident only after Defendant filed its response to the motion for recusal, which contained the information relating to Boyaki's participation in another case set for trial in Houston on the same day as the instant cause. The April 11, 2005 trial date, chosent and agreed upon by the parties, was set by the Court on August 10, 2004. [Rec. No. 56].
III. CONCLUSION
Even accepting the factual allegations in the affidavits as true, the Court finds that the affidavits of Plaintiff and her counsel do not in any way suggest an extra-judicial personal bias towards her or Boyaki. Furthermore, there is not sufficient information which would lead a reasonable person to conclude that this Court is biased against the Plaintiff, nor is there any evidence which speaks to a personal, non-judicial bias. Therefore, this Court finds that the Plaintiff's affidavits are legally insufficient to warrant recusal under § 144.
IT IS THEREFORE ORDERED that "Plaintiff's Motion to Disqualify Trial Judge" [Rec. No. 61] is hereby DENIED.