Opinion
Chapter 11 Case #97-11884
February 21, 2002
Paul S. Kulig, Esq., Rutland, VT, for Bank One.
Jesse T. Schwidde, Esq., Glinka Schwidde, Rutland, VT, for debtor.
John Norton-Griffiths, Rutland, VT, Pro se Secured Creditor.
MEMORANDUM OF DECISION DENYING SUA SPONTE MOTION FOR SANCTIONS UNDER RULE 9011 AGAINST NORTON-GRIFFITHS
The matter before the Court is the Court's sua sponte request for John Norton-Griffiths, pro se, to show a basis in law and fact for his second Motion for Sanctions Under Bankruptcy Rule 9011, filed on December 18, 2001 against Paul S. Kulig, Esq., counsel for the creditor, Charter One Bank (hereafter "the Bank"). Mr. Norton-Griffiths requested Bankruptcy Rule 9011 sanctions based upon allegations that Attorney Kulig wrongfully failed to withdraw the Bank's claim against the debtor. Pursuant to the hearing held on January 29, 2002, the opposition submitted by Attorney Kulig, and the record, this Court denied the motion for sanctions both on the merits and because Mr. Norton-Griffiths lacked standing to seek such relief pursuant to the prior decisions of this Court and the U.S. District Court. Concerned that this successive motion for sanctions by Mr. Norton-Griffiths not only lacked legal and factual merit but reflected the potential for an abusive filing in violation of Bankruptcy Rule 9011, this Court advised the movant of its concerns with respect to Rule 9011 and directed Mr. Norton-Griffiths to substantiate the legal and factual underpinnings for his motion. Mr. Norton-Griffiths responded by filing his Secured Creditor John Norton-Griffiths' Memorandum of Facts and Law Supporting Motion Pursuant to F.R.B.P. 9011 [Dkt. #343-1]. For the reasons set forth on the record at the hearing held on January 29, 2002, this Court's denial of Mr. Norton-Griffiths' request for Rule 9011 relief stands, and shall not be disturbed based upon anything filed subsequent to that hearing. For the reasons set forth below, the Court finds that Mr. Norton-Griffiths has presented a sufficient legal and factual basis for his most recent motion to avoid imposition of sanctions under Rule 9011 at this time.
DISCUSSION
Bankruptcy Rule 9011 provides in pertinent part:
(b) REPRESENTATIONS TO THE COURT. By presenting to the court . . . a petition, pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the persons's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, —
(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
(c) SANCTIONS. If, after notice and a reasonable opportunity to respond, a motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subsection (b). It shall be served as provided in Rule 7004.
The Court, on its own authority, directed Mr. Norton-Griffiths to substantiate the basis for his second motion for sanctions so it could determine whether the he was, in fact, in violation of the foregoing provision.
This Court takes the mandates of Rule 9011 seriously and expect all litigants to conduct themselves in compliance with Rule 9011. This Court also believes special consideration must be given to the obstacles facing parties who choose proceed without benefit of counsel, and recognizes the latitude accorded pro se parties pursuing relief in federal courts in this Circuit. See Patrick v. LeFevre, 745 F.2d 153, 160 (2nd Cir. 1984) (Second Circuit has "long evinced a sensitivity toward the plight of the uncounselled [party] attempting to navigate the technically-ladened road to the courthouse."). Thus, in cases such as this the Court must balance the handicap under which a pro se party is proceeding against the importance of maintaining the standards set by Rule 9011. Ultimately, the Court will not countenance bad faith or abusive filings designed to harass opposing parties or their counsel, in violation of Rule 9011, by any party, but may allow the pro se status of the litigant to be a factor in determining whether the litigant should be given extra time to remedy improper conduct and in determining what sanctions to impose under Rule 9011. The original papers filed in connection with the subject motion failed to set forth any specific legal basis for the relief sought, and appeared to be seeking the same relief that had already been denied by this Court (Littlefield, J.), the U.S. District Court and the U.S. Court of Appeals for the Second Circuit.
Upon a careful review of the response filed by Mr. Norton-Griffiths, it appears that notwithstanding the legal deficiencies in his second motion for sanctions under Rule 9011, it does not appear that the motion was filed with a complete absence of law and fact, or the requisite bad faith, to warrant Rule 9011 sanctions sua sponte. While the case law and factual contentions set forth by Mr. Norton-Griffiths do not substantiate relief under Rule 9011 against Attorney Kulig or alter his lack of standing to seek the requested relief, this Court is satisfied that sua sponte sanctions against Mr. Norton-Griffiths are not warranted at this time.
Based on the foregoing, the court will not impose sanctions pursuant to Bankruptcy Rule 9011 upon Mr. Norton-Griffiths in connection with this motion.
MEMORANDUM OF DECISION DENYING MOTION FOR RECUSAL
The matter before the Court is the Motion by Secured Creditor John Norton-Griffiths to Recuse Honorable Colleen A. Brown, Bankruptcy Judge [Dkt. #342-1]. Mr. Norton-Griffiths seeks recusal pursuant to 28 U.S.C. § 455(a) and (b)(1), based upon contentions that this Court's impartiality might be reasonably questioned and that a personal bias or prejudice exists against the movant. This Court has jurisdiction pursuant to 28 U.S.C. § 455 and 1334. For the reasons set forth below, the recusal motion is denied.
The motion for recusal sets forth three alleged grounds for relief: (1) this Court's arbitrary and unexplained disallowance of attorneys fees; (2) the impolite manner in which the Court rejected Mr. Norton-Griffiths' admittedly flawed first request for Rule 9011 sanctions on procedural grounds; and (3) this Court's denial of Mr. Norton-Griffiths' second motion for Rule 9011 sanctions on substantive and procedural grounds.
The test for determining the merits of a motion to disqualify a federal judge under 28 U.S.C. § 455 is an objective test. See Liteky v. U.S., 510 U.S. 540, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994); Tapia-Ortiz v. Winter, 185 F.3d 8 (2nd Cir. 1999). A federal judge is not required to disqualify herself where the motion contains unsubstantiated allegations of bias. See Tapia-Ortiz v. Winter, supra; Willner v. University of Kansas, 848 F.2d 1023 (10th Cir. 1988), cert. den. 109 S.Ct. 840 (1989); see also Bin-Wahad v. Coughlin, 853 F. Supp. 680, 683-84 (S.D.N.Y. 1994) (movant must show a true personal bias and allege specific facts as opposed to mere conclusions and generalizations). Moreover, adverse rulings and allegations of impoliteness alone do not provide a basis for disqualification. See Liteky v. U.S., supra; Tapia-Ortiz v. Winter, supra; see also U.S. v. Muyet, 994 F. Supp. 501 (S.D.N.Y. 1998); Holmes v. NBC/GE, 925 F. Supp. 198 (S.D.N Y 1996). Furthermore, judges are presumed to be impartial and the law imposes a substantial burden upon a movant to prove otherwise. See Bin-Wahad v. Coughlin, 853 F. Supp. at 683.
Based upon these authorities, it is not necessary for the Court to respond to each and every allegation interposed by the movant. This is particularly true here since this Court finds that the insufficiency of the two allegations of bias based upon denial of the 9011 motions is clearly evident from the record and written decisions. The movant's remaining ground for this Court's recusal, namely that the Court reduced a fee application in an arbitrary fashion, should be addressed because it raises the more complex issues of relevancy and judicial discretion. The fee in question was sought by Jess Schwidde, Esq., the attorney for the debtor herein, and the movant has failed to set forth any basis upon which the Court's ruling on Mr. Schwidde's fee application is relevant to the Court's alleged lack of impartiality toward the movant. Moreover, contrary to the movant's contention, the Court did recite its reasons for reducing this fee on the record at the hearing held on March 13, 2001, specifying the entries that the Court found to be beyond the reasonable and necessary standard of 11 U.S.C. § 330. The movant's claim that the Court's reduction of fees was arbitrary is belied by the fact that under the circumstances presented and the relevant case law, this Court had the discretion to deny debtor's counsel's fee in its entirety based upon counsel's failure to obtain approval of the fee prior to its disbursement. See In re Anderson, 936 F.2d 199 (5th Cir. 1991); Lavender v. Wood Law Firm, 785 F.2d 247 (8th Cir. 1986). In fact, the Court allowed the vast majority of the fee sought, over the zealous objection of the Office of the U.S Trustee, on primarily equitable grounds, for the reasons set forth in the Memorandum of Decision dated January 25, 2001. Accordingly, this Court finds that none of the specific allegations set forth by the movant are supported by the record.
This Court has also examined the motion to determine if it raises allegations which would cause a reasonable person to find that this judge holds or evinces a bias or prejudice vis a vis the movant that creates a reasonable impression that the movant is being deprived of the impartiality to which he is entitled in this Court under federal law, i.e., to determine if an objective test is satisfied by the movant's allegations. See U.S. v. Thompson, 76 F.3d 442, 451 (2nd Cir. 1996); Yagman v. Republic Insurance, 136 F.R.D. 652, 656 (C.D.Cal. 1991), aff'd. 987 F.2d 622 (1993). Based upon a careful and objective review of the matters set forth in the motion to recuse, the Court finds that the movant has failed to set forth a legally sufficient basis for disqualification of a federal judge pursuant to 28 U.S.C. § 455(a) or (b)(1).
For the foregoing reasons, the Motion by Secured Creditor John Norton-Griffiths to Recuse Honorable Colleen A. Brown, Bankruptcy Judge is denied.