United States District Court, E.D. Kentucky, Southern Division
NEW LONDON TOBACCO MARKET, INC., AND FIVEMILE ENERGY, LLC, Plaintiffs,
KENTUCKY FUEL CORPORATION AND JAMES C. JUSTICE COMPANIES, INC., Defendants.
MEMORANDUM OPINION AND ORDER
GREGORY F. VAN TATENHOVE UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants' Motion for
Recusal pursuant to 28 U.S.C. § 144 and 28 U.S.C. §
455. [R. 388.] For the following reasons, Defendants'
motion is DENIED.
in this matter has been protracted and is yet ongoing. This
Court has noted before that Defendants “have a long
history of contumacious practice in this case that began in
2012.” [R. 341.] On numerous occasions, Defendants have
failed to produce timely discovery or respond to discovery
requests altogether, failed to obtain counsel, and failed to
appear for scheduled depositions, all in defiance of this
Court's orders. [See R. 341.] In September, 2014
this Court entered Default as to liability against the
Defendants. [R. 206.]
remains to be settled is the issue of damages. An evidentiary
hearing on that issue is set before Magistrate Judge Hanly A.
Ingram on December 11, 2018. [R. 373.] Now, Defendants have
moved for Judge Ingram's recusal, on the grounds that his
prior rulings demonstrate “bias and prejudice against
Defendants.” [R. 388-1.] Defendants also request a
telephonic conference to argue this motion as well as
reschedule the evidentiary hearing. Id.
§ 144, whenever a party to a proceeding in district
court makes a motion and files a 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, ” the judge must recuse. A party may
only file one of these motions in any case, and that motion
must be accompanied by a certificate from the counsel of
record stating that the motion was made in good faith. 28
U.S.C. § 144. It is well settled that 28 U.S.C. §
455 “must be construed in para materia”
with § 144. United States v. Story, 716 F.2d
1088, 1091 (6th Cir. 1983). Under both statutes, recusal is
not subjective and is required “if a reasonable,
objective person, knowing all of the circumstances, would
have questioned the judge's impartiality.”
Hughes v. United States, 899 F.2d 1495, 1501 (6th
Defendants filed their motion and two
affidavits simultaneously. [R. 388; R. 388-2; R.
388-3.] In their memorandum accompanying the motion, counsel
for defendants indicated “Defendants mean no disrespect
by this Motion, but they also submit that the Motion is
well-grounded and is not simply a reaction to rulings that
have not been in Defendants' favor.” [R. 388-1.]
However, the motion did not contain a “certificate from
the counsel of record stating that it is made in good faith,
” as required by § 144. 28 U.S.C. § 144.
Because Defendants have not complied with the statutory
requirement, the motion must be denied. Scott v.
Metropolitan Health Corp., 234 Fed.Appx. 341, 352-53
(6th Cir. 2007).
even if this Court construes Defense counsel's assertion
of good faith as proper certification, the motion still
fails. “[D]isqualification under section 455(a) must be
predicated as previously under section 144, upon
extrajudicial conduct rather than on judicial conduct.”
United States v. Story, 716 F.2d 1088, 1091 (6th
Cir. 1983) “‘Personal' bias is prejudice that
emanates from some source other than participation in the
proceedings or prior contact with related cases.”
Wheeler v. Southland Corp., 875 F.2d 1246, 1251 (6th
Cir. 1989) (quoting Demjanjuk v. Petrovsky, 776 F.2d
571, 577 (6th Cir. 1985)). It is well established that
personal bias cannot arise from the Court's view of the
law, and “judicial rulings alone almost never
constitute a valid basis for a bias or partiality
motion.” Liteky v. United States, 510 U.S.
540, 555 (1994).
the only evidence Defendants supply of bias are Judge
Ingram's previous rulings in the case. [R. 388-1.]
Defendants point to language in various of Judge Ingram's
orders and argue that “the tone and tenor of Magistrate
Judge Ingram's rulings” demonstrate clear bias
against the Defendants. [R. 388-1.] But Defendants fail to
identify or even allege any extrajudicial source of bias on
the part of Judge Ingram while simultaneously admitting
“that [Defendants] have perhaps on certain occasions
failed to adhere to the precise letter and spirit of their
discovery obligations in this matter.” [R. 388-1 at 2.]
This is hedging. Defendants have repeatedly defied or
disregarded orders of this Court as well as those of Judge
Ingram. [See R. 341; R. 345.] Further, this Court
does not agree with Defendants' position that Judge
Ingram's rulings have been “inflammatory, ”
but even if they were, “expressions of impatience,
dissatisfaction, annoyance, and even anger, that are within
the bounds of what imperfect men and women . . . sometimes
display” do not by themselves establish personal bias.
Liteky v. United States, 510 U.S. 540, 555-56
are presumed to be impartial, and the moving party carries
the burden of proving otherwise. Scott v. Metropolitan
Health Corp., 234 Fed.Appx. 341, 352 (6th Cir. 2007). In
addition to failing to comply with the statute, Defendants
have failed to carry this substantial burden. See
Id. Defendants' assertion that Judge Ingram's
previous orders demonstrate personal bias does not form a
valid basis for a motion pursuant to 28 U.S.C. §§
144 or 455.
and the Court being sufficiently advised, Plaintiffs Motion
for Recusal [R. 388] under 28 U.S.C. ...