Opinion
03 Civ. 674 (MGC)
November 25, 2003
MEMORANDUM OPINION
Plaintiffs Greta Rothstein and Konstantinos Karetsos, move to disqualify me from presiding over this action pursuant to 28 U.S.C. § 144 and 28 U.S.C. § 455. For the reasons discussed below, the motion is denied.
Plaintiffs do not specify which subsection of § 455 they are moving under. However, only § 455(a) and § 455(b)(1) have any possible relevance.
BACKGROUND
Plaintiffs, who are proceeding pro se, filed this action in January 2003 against Merrill Lynch, Pierce, Fenner Smith, Inc. ("Merrill Lynch") and four of its employees. The complaint alleges fraudulent handling of their joint investment account at Merrill Lynch. Merrill Lynch filed an answer to the complaint on February 18, 2003. In March, plaintiffs, who live in Greece, and counsel for defendants were notified that a conference would be held on June 19, 2003.
At the June conference, plaintiffs raised the issue of the failure of the individual defendants to answer the complaint. Defense counsel said that he would look into this matter. The individual defendants were ordered to file an answer by June 26, 2003, and plaintiffs and counsel for defendants were instructed to meet and exchange voluntary disclosures and to fill out a case management plan.
On June 25, 2003, defense counsel submitted a letter stating that the individual defendants did not answer the complaint because they had never been served. The letter also stated that one of the named defendants is no longer employed at Merrill Lynch and another had moved to California. On July 10, 2003 plaintiffs responded to defense counsel's letter with a letter which stated that they had indeed served process on all five defendants through Merrill Lynch's offices in New York. According to plaintiffs, their process server had not been permitted to enter the General Counsel's office itself, but had served five copies of the summons and complaint on a receptionist, who represented "that she was authorized by appointment to receive service of process . . . on behalf of [the] Vice President and Counsel Manager" who, in turn, had the power to effect service on defendants.
Defense counsel submitted a case management plan on behalf of the parties with the June 25th letter. Counsel for defendants made clear that he was doing so with the consent of plaintiffs and sent a copy to them. The proposed plan failed to include a date for submission of the joint pre-trial order. On September 12, 2003 my chambers telephoned defense counsel and instructed him to submit a case management plan which included all of the required dates. On September 24, 2003 defendants filed a motion to compel arbitration and dismiss plaintiffs' complaint. Subsequently, defense counsel submitted a letter dated September 30, 2003, with a copy to plaintiffs, in which he requested "the Court's permission to defer negotiation of a new proposed case management plan and scheduling order until the Court has ruled on defendants' pending dispositive motion." This request was granted by memo endorsement on October 3rd.
In connection with defendants' motion, an order was issued on October 17th directing plaintiffs to submit to the court, with a copy to defendants' counsel, a copy of the power of attorney document to which plaintiffs refer in the exhibits to their complaint. Plaintiff Karetsos signed the agreement to arbitrate both for himself and on behalf of plaintiff Rothstein. Plaintiffs responded promptly that they could not locate the document. Plaintiffs filed this disqualification motion with their submission regarding the power of attorney document.
Plaintiffs' motion asserts several grievances. First, plaintiffs assert that the October 3rd order deferring submission of the new case management plan shows my bias and prejudice against them and in favor of defendants. Plaintiffs state that the "ex parte" communication with defense counsel, in which my chambers requested a new and complete case management plan, shows that I was seeking to help defendants avoid their discovery obligations. Plaintiffs feel wronged because they believe they have fully complied with defendants' discovery requests and had served written interrogatories and a request for production of documents on defendants, when six days later defendants filed their motion to compel arbitration.
Second, plaintiffs take umbrage at the wording of the orders issued on October 3rd and October 17th. In granting defense counsel's request to defer submission of the new case management plan I used my regular practice of endorsing counsel's letter. Plaintiffs contend that by granting defendants' request by memo endorsement I showed bias and prejudice because the order uses defense counsel's words. Plaintiffs also contend that the order directing them to produce the power of attorney document shows bias and prejudice because it misrepresents their position and magnifies the importance of defendants' motion to compel arbitration and dismiss the complaint. That order read as follows:
Defendants have moved for an order compelling arbitration of this case. Plaintiffs oppose the motion on the ground that Konstantinos Karetsos signed the name of his wife Greta Rothstein on the agreement to arbitrate.
Plaintiffs are directed to submit to the court and send to defendants' counsel by November 3, 2003, a copy of the power of attorney document, referred to in Appendix A, ¶ 8 of the complaint. SO ORDERED.
Third, plaintiffs make a series of varied objections to my handling of this action. Plaintiffs object that the file in this case was "requisitioned" by my chambers. They also contend that defendants' motion to compel arbitration was never entered on the docket of the court. Plaintiffs protest the "silence" of the court with respect to their July 10, 2003 submission regarding service of the individual defendants and their October 10, 2003 response to defendants' motion to compel arbitration. Lastly, plaintiffs make some allegations that the public's interest in the fair handling of disputes has been harmed.
DISCUSSION
The disqualification statute, 28 U.S.C. § 144, requires a district judge to recuse herself whenever a party has filed "a timely and sufficient affidavit" which shows that a judge "has a personal bias or prejudice" in favor of one party or against another party. In addition to an affidavit, which plaintiffs have submitted, § 144 requires that the motion to recuse "be accompanied by a certificate of counsel of record stating that it is made in good faith." Since plaintiffs are proceeding pro se, they are not able to submit such a certificate. Accordingly, plaintiffs7 § 144 motion may be procedurally flawed. However, § 455 does not require a certificate of counsel and the substantive inquiries under § 144 and § 455 are the same. See Liteky v. United States, 510 U.S. 540, 548 (1994). Therefore, I consider plaintiffs' motion on the merits.
Like § 144, § 455(b)(1) also requires recusal whenever a judge "has a personal bias or prejudice" for or against one party.Liteky, 510 U.S. at 548. The substantive standards of the two sections should be construed "in pari materia." Apple v. Jewish Hospital Medical Center, 829 F.2d 326, 333 (2d Cir. 1987);see also Liteky, 510 U.S. at 548. Section 455(a) requires a judge to disqualify herself whenever her "impartiality might reasonably be questioned." However, a separate inquiry under § 455(a) is unnecessary since plaintiffs' only grounds for disqualification are alleged instances of bias or prejudice. Herskowitz v. Charney, No. 93 Civ. 5248, 1994 WL 455172, at *2 (S.D.N.Y. Aug. 18, 1994) (citing Apple, 829 F.2d at 333) ("In certain instances, § 455(a) may provide broader grounds for disqualification than § 144, but that is not the case when, as here, the moving party does not allege any grounds for recusal other than the district judge's alleged bias or prejudice.").
All of plaintiffs' grievances relate to matters that form a part of this litigation. "[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion . . . unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible." Liteky, 510 U.S. at 555. Nothing that has happened during the course of this action would support such a finding. Plaintiffs' complaints are principally addressed to the merits or wording of my orders. My decision to grant defense counsel's request to defer submission of a new case management plan did not stay discovery as plaintiffs contend. The order did nothing other than postpone the date for submission of a case management plan pending resolution of the motion to compel arbitration. If plaintiffs are compelled to arbitrate their dispute, any discovery could be used in the arbitration proceedings. Moreover, the only "ex parte" communication with counsel for defendants was a telephone call from my chambers informing him that he would have to again confer with plaintiffs, who reside in Greece, and agree on a case management plan which includes all of the required dates. Defense counsel's June 25th cover letter which accompanied the initial case management submission represented that he had indeed conferred with plaintiffs, noted plaintiffs' agreement to the plan and sent them a copy of his submission to the court. Plaintiffs also object strongly to the failure of the four individual defendants to answer the complaint. I inquired as to why defendants had failed to answer at the June conference, and directed the individual defendants to file an answer within one week. In his June 25th letter, counsel for defendants represented that the individual defendants had not been served. An obvious dispute exists between the parties as to whether or not proper service was effected and that dispute will have to be resolved. However, that dispute between the parties does not evidence bias or prejudice, and it does not constitute a basis for recusal.
Although the facts stated in plaintiffs' affidavit must be accepted as true, their legal sufficiency should be examined, because "[t]here is as much obligation upon a judge not to recuse himself when there is no occasion as there is for him to do so when there is." Rosen v. Sugarmari, 357 F.2d 794, 797 (2d Cir. 1966) (citations omitted). None of plaintiffs' allegations is legally sufficient to warrant recusal. Each is directly related to my rulings in the case.
Moreover, as shown by an examination of the docket of this action, plaintiffs' contention that defendants' motion to compel arbitration and to dismiss the complaint was never entered on the docket sheet is simply incorrect. Furthermore, the fact that my chambers requested the case file does not support an allegation of bias or prejudice. Finally, plaintiffs' October 10th submission is in response to defendants' motion to compel arbitration, which is still pending.
CONCLUSION
For the foregoing reasons, plaintiffs' motion for disqualification pursuant to 28 U.S.C. § 144 and 28 U.S.C. § 455 is denied.
SO ORDERED.