Opinion
02 Civ. 3995 (LAK)
March 22, 2004
ORDER
Plaintiff, by motion dated March 11, 2004, seeks to disqualify the undersigned pursuant to 28 U.S.C. § 144 on the basis of unspecified statements allegedly made by the Court at a pretrial conference on February 13, 2004, which she asserts reflect bias or prejudice against her "because [she] is not a lawyer, an employer and [is] now representing [her]self, Pro Se."
Section 144 provides:
"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.
"The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith."
The statute therefore has both procedural and substantive requirements.
From a procedural point of view, the affidavit must be timely — it must be filed as soon as practical after learning of the facts. It must be made by the party. And it must be accompanied by a certificate of counsel stating that the affidavit is filed in good faith. The procedural requirements of the statute are enforced strictly.
See, e.g., Apple v. Jewish Hosp, and Medical Center, 829 F.2d 326, 333 (2d Cir. 1987) ("It is well-settled that a party must raise its claim of a district court's disqualification at the earliest possible moment after obtaining knowledge of facts demonstrating the basis for such a claim."); Lamborn v. Dittmer, 726 F. Supp. 510, 514 (S.D.N.Y. 1989) (same); Cranston v. Freeman, 290 F. Supp. 785, 816 (N.D.N.Y. 1968) (Section 144 motion untimely when brought after commencement of trial), rev'd on other grounds, 428 F.2d 822 (2d Cir. 1970).
The ten day rule stated in the statute no longer is applied literally, as 28 U.S.C. § 138 abolished terms of court. See 13A CHARLES ALAN WRIGHT, ARTHURR. MILLER, EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE ("WRIGHT MILLER") § 3551, at 641 (2d ed. 1984).
This requirement does not apply to plaintiff, as she proceeds pro se.
13A WRJGHT MILLER § 3542, at 581-84 (1984); see also, e.g., United States v. Occhipinti, 851 F. Supp. 523, 525 (S.D.N.Y. 1993) (procedures governing timeliness and sufficiency "must be strictly followed and if there is any deviation, the motion should be denied"); United States v. Johnpoll, 748 F. Supp. 86, 88 (S.D.N.Y. 1990) (same), aff'd, 932 F.2d 956 (2d Cir.), cert. denied, 502 U.S. 881 (1991); Lamborn v. Dittmer, 726 F. Supp. 510, 514 (S.D.N.Y. 1989) (same).
From a substantive perspective, the affidavit must allege sufficiently that the judge has a personal bias or prejudice against the party filing the affidavit or in favor of an adverse party. To this must be added the further gloss, viz. that the determination of whether such an affidavit is timely and legally sufficient is made by the judge whose recusal is sought. In doing so, however, the judge is obliged to assume the truth of the factual allegations of the affidavit, although the judge may disregard speculative and conclusory assertions.
See, e.g., Berger v. United States, 255 U.S. 22, 32 (1921) (it "is imposed upon the judge the duty of examining the affidavit to determine whether or not it is the affidavit specified and required by the statute and to determine its legal sufficiency"); National Auto Brokers Corp. v. General Motors Corp., 572 F.2d 953, 958 (2d Cir. 1978) ("a judge has an affirmative duty to inquire into the legal sufficiency of such an affidavit and not to disqualify himself unnecessarily . . ."), cert. denied, 439 U.S. 1072 (1979); United States v. Haldeman, 559 F.2d 31, 131(D.C. Cir. 1976) ("It is well settled that the involved judge has the prerogative, if indeed not the duty, of passing on the legal sufficiency of a Section 144 challenge."), cert. denied, 431 U.S. 933 (1977); Eisler v. United States, 170 F.2d 273, 278 (D.C. Cir. 1948) ("[T]he judge has a lawful right to pass on the legal sufficiency of the affidavit."), cert. granted, 335 U.S. 857, cert. dismissed, 338 U.S. 883 (1949); American Brake Shoe and Foundry Co. v. Interborough Rapid Transit Co., 6 F. Supp. 215, 218 (S.D.N.Y. 1933) ("[W]hen such an affidavit is filed, the recused judge is restricted to a determination of its timeliness and legal sufficiency.").
See, e.g., Berger v. United States, 255 U.S. 22, 35 (1921) (court must assume truth of allegations in the affidavit); United States v. Vespe, 868 F.2d 1328, 1340 (3d Cir. 1989) (court need not credit speculative and conclusory allegations); Phillips v. Joint Legislative Committee on Performance and Expenditure Review, 637 F.2d 1014, 1019 (5th Cir. 1981) (court must assume truth of allegations), cert. denied, 456 U.S. 960 (1982); Haldeman, 559 F.2d at 134 (court may disregard speculative and conclusory allegations).
At the outset, plaintiff's motion is untimely. She claims that the information upon which the motion is based came to her attention on February 13. She waited at least until March 11 to make the motion. The Court notes parenthetically that plaintiff may have been prompted to file this motion by the fact that defendants on February 26, 2004 wrote to the Court, complaining that plaintiff again had refused to appear for the completion of her deposition, and her concern that the Court might not indulge this behavior in view of its earlier admonitions. E.g., Tr., Feb. 13, 2004, 5-6. The motive for the delay, however, is immaterial. What is material is that March 11 was not "he earliest possible moment [by which plaintiff could have moved under Section 144] after obtaining knowledge of facts demonstrating the basis for such a claim."
Letter, Ms. Bauer, Mar. 12, 2004, Ex. 1.
Apple, 829 F.2d at 333.
Even if the motion were timely, the affirmation is insufficient. It is largely conclusory. To the very limited extent that it is not, it is at material variance with the transcript of the proceedings of February 13, 2004. The record reveals nothing to support a claim of bias or prejudice. Id., passim.
Plaintiff's motion is supported by an affirmation, which does not comply with the statutory requirement of an affidavit. Indeed, although affirmations may be submitted in New York State courts by attorneys in lieu of affidavits, N.Y. CPLR 2106, plaintiff is not an attorney and this action is not in a New York State court. In view of the alternative grounds for denying plaintiff's motion, however, the Court need not rely on this deficiency.
For example, the affirmation states that the Court "reminded plaintiff that the defendants have spent a lot of money on the case and have other matters to deal with." Utsey Aff. ¶ 6. In fact, the transcript shows that the Court made no such statement. Rather, in the course of setting a schedule, the Court commented:
"Ms. Utsey, you need to understand that it is not simply a matter of giving consideration, which I am, to the fact that you are not a lawyer and are proceeding on your own. You are entitled to consideration for that and I am trying to do that.
"But the defendant has some rights, too, and one of their rights is not to have this lawsuit hanging over their head indefinitely and it has been hanging over their head for a long time now and I have to take a balanced approach and I am trying to do that." Tr., Feb. 13, 2004, 7.
The motion is denied.
SO ORDERED.