Opinion
00 Civ. 3151 (RWS)
October 30, 2002
MEMORANDUM OPINION
Steven Jude Hoffenberg, pro se, ("Hoffenberg") has moved for recusal under 28 U.S.C. § 144 and 455. For reasons stated below, the motion is denied.
Prior Proceedings
Hoffenberg filed a complaint against the defendant law firm Hoffman Pollok, now known as Hoffman Pollok Pickholz LLP ("HPP"), on April 25, 2000, alleging fraud, malpractice and breach of fiduciary duty.
On September 7, 2001, an order granted Hoffenberg an additional forty-five days to serve HPP because Hoffenberg had failed to serve HPP within 120 days of the tiling of the complaint. On November 14, 2001, the action was dismissed for failure to serve, no service return having appeared on the docket. Hoffenberg appealed and on June 27, 2002, the Second Circuit vacated the dismissal and remanded the case to consider whether service was proper. See Hoffenberg v. Hoffman Pollok Pickholz, LLP, No. 01-9427 (2d Cir. 2002). HPP upon this motion withdrew its efficacy of service claim.
HPP previously represented Hoffenberg commencing in 1993 in connection with S.E.C. v. Towers Financial Corp., 1996 WL 406685 (S.D.N.Y. 1996), and U.S. v. Hoffenberg, 1997 WL 96563 (S.D.N.Y. 1997). After pleading guilty in the criminal case in 1995, Hoffenberg sought to withdraw his plea, which motion was denied, U.S. v. Hoffenberg, 169 F.R.D. 267 (S.D.N.Y. 1996). After a judgment of conviction, sentence was entered by this Court, Hoffenberg appealed, and the judgment was affirmed. U.S. v. Hoffenberg, 164 F.3d 620 (2d Cir. 1998).
Hoffenberg moved in December 1999 to recuse this Court in connection with a review of his conviction under 28 U.S.C. § 2255, which motion was denied for lack of jurisdiction, a denial affirmed by the Court of Appeals. His action was transferred to this Court, the motion for recusal was denied, and the § 2255 motion dismissed as untimely. Hoffenberg v. U.S., 2000 WL 1523142 (S.D.N.Y. 2000).
The instant motion was marked submitted on July 10, 2002.
The Facts
No facts have been alleged to establish any relationship between myself and HPP beyond the customary professional relationship between counsel and the Court. There is no social, financial or any other relationship beyond professional appearances by HPP representing clients before the Court.
The Standard For Recusal Has Not Been Met
Recusal is required under 28 U.S.C. § 144 upon the filing of a timely and sufficient affidavit stating "the facts and reasons for the belief that bias or prejudice exists" which sufficiently shows that the "judge before whom the matter is pending has a personal bias or prejudices either against him or in favor of any adverse party . . ." 28 U.S.C. § 144 (West 2002). Section 455(b)(1) requires disqualification, inter alia, where a judge "has personal bias or prejudice concerning a party . . ." 28 U.S.C. § 455(b)(1) (West 2002). Because § 455(b)(1) encompasses § 144, the two can be read together. See Litkey v. U.S., 510 U.S. 540, 548, 114 S.Ct. 1147, 1153 (1994); see also Apple v. Jewish Hospital and Medical Center, 829 F.2d 326, 222 (2d Cir. 1987).
In addition, Section 445(a) functions as a catchall provision, requiring disqualification of a judge "in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a) (West 1993). Section 455 is broader in its application, and thus courts use the same analysis and standards for both sections. See U.S. v. Occhipanti, 851 F. Supp. 523, 524 (S.D.N.Y. 1993); Apple, 829 F.2d at 333; see also Litkey, 510 U.S. at 550, 114 S.Ct. at 1155. The bias and/or prejudice asserted under both provisions must stem from extrajudicial sources, i.e., outside the judicial proceeding at hand. See Litkey, 510 U.S. at 540, 114 S.Ct. 1147 (1994). Since the judge is presumed to be impartial, the movant has a stringent burden of proof. Occhipanti, 851 F. Supp. at 525; Farkas v. Ellis, 768 F. Supp. 476, 478 (S.D.N.Y. 1991);Bailey v. Broder, 1997 WL 73717, *3 (S.D.N.Y. 1997) (citing U.S. v. Kehlbeck, 766 F. Supp. 707, 713 (S.D.Ind. 1990).
Hoffenberg has alleged that this Court "acted with bias prejudice when dismissed the [sic] instant action [Pro Se Complaint] with prejudice on November 14, 2001." See Pro Se Recusal Motion of Judge Sweet at ¶¶ 1 and 7; the Court deprived him of "[d]ue process court access by withholding the review of the Hoffman Pollok fraudulent unlawful conduct . . . [and] prevented Pro Se from being heard in a meaningful manner." Id. at ¶¶ 1 and 7; demonstrated "bias prejudice with hold's [sic] Pro Se Due process by not reviewing the unlawful $450,000 conflicted legal fee payment [to HPP]." Id. at ¶¶ 5 and 6; and "showed the same bias prejudice grounded in apparent or inappropriate disposition against Pro Se in Hoffenberg v. U.S., 28 § 2255 Docket 00-CIV-1686 (RWS) (October 3, 2000)." Id. at ¶ 12 and 14.
Adverse judicial rulings do not constitute a valid basis for recusal.See Litkey, 510 U.S. at 555, 114 S.Ct. at 1156 (denying petitioner's motion for recusal based on prior adverse ruling); U.S. v. Arena, 180 F.3d 380, 398 (2d Cir. 1999), cert. denied, 531 U.S. 811 (2000) (denying petitioner's motion for recusal).
Hoffenberg has alleged a "long standing friendship" between the Court and members of HPP as a basis for the claim of bias and prejudice, a friendship which caused the Court to "attack Pro Se in open court when Pro Se made his application to fire HP" (Id.) and to dismiss Pro Se's instant complaint as a benefit to HPP. Id. at ¶¶ 7, 8.
Although Hoffenberg asserts that this Court and HPP have a "long standing friendship" which resulted in the dismissal of his complaint, he gives no factual support for this allegation (Recusal Motion at ¶ 11), and the allegation is factually inaccurate as found above. As was found in Bailey v. Broder, 1997 WL 73717 (S.D.N.Y. 1997), a professional relationship has been transformed into an "unfounded and wholly unsupported suspicion and innuendo." Id. at *5.
Therefore, because Hoffenberg has failed to establish grounds for recusal, his motion is denied.
It is so ordered.