Opinion
00 Civ. 3618 (SHS)
September 12, 2003
OPINION AND ORDER
On July 30, 2003, Mac Truong filed a motion to recuse this Court pursuant to 28 U.S.C. § 455(b)(1). For the following reasons, that motion is denied.
Discussion
Section 455(b)(1) requires recusal when a judge has a "personal bias or prejudice" for or against any party, where the bias is evident from extrajudicial conduct or, in certain rare instances, from a "deep-seated favoritism or antagonism that would make fair judgment impossible"See Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994); U.S. v. Diaz, 176 F.3d 52, 112 (2d Cir. 1999). The standard for recusal pursuant to section 455 is whether `"an objective, disinterested observer fully informed of the underlying facts, [would] entertain significant doubt that justice would be done absent recusal,' or alternatively, whether `a reasonable person, knowing all the facts,' would question the judge's impartiality.'U.S. v. Yousef, 327 F.3d 56, 169 (2d Cir. 2003) (quotingU.S. v. Lovaglia, 954 F.2d 811, 815 (2d Cir. 49929)); Hernandez v. U.S., 2003 WL22076471, *2 (S.D.N.Y. Sept. 3, 2003). `Discretion is confided in the district judge in the first instance to determine whether to disqualify himself." In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1312 (2d Cir. 1988). However, it is well-settled that "a judge has `an affirmative duty . . . not to disqualify himself unnecessarily."Rivera v. U.S., 2001 WL 736778, *2 (S.D.N.Y. June 29, 2001) (quoting National Auto Brokers Corp. v. General Motors Corp., 572 F.2d 953, 958 (2d Cir. 1978)).
Reviewing Truong's affidavits and supporting documentation and accepting the facts stated to be true, this Court finds that the facts stated are not legally sufficient to warrant recusal. See Rosen v. Sugarman, 357 F.2d 794, 797-98 (2d Cir. 1966); Farkas v. Ellis, 68 F. Supp. 476, 478 (S.D.N.Y. 1991) (the court may place the facts alleged into their proper context and examine the surrounding circumstances) Every factual assertion of prejudice or bias made by Truong involves conduct which arises from rulings made by this Court in this particular action, and related actions, that were contrary to Truong's positions. Truong variously asserts that this Court exhibited "a malevolent desire to injure [him]" by (1) accepting six complaints — Vishipco Line, v. Schwab, 02 Civ. 7823; Dr. Mac Truong v. Schwab, 02 Civ. 7846, Mac Truong. PEP v. Schwab, 02 Civ. 7929, Hugh Mac Truong v. Schwab, 02 Civ. 7877 (Truong's son), Thuhnh Mac Truong v. Schwab, 02 Civ. 7915 (Truong's daughter) and Marvse Mac Truong v. Schwab, 02 Civ. 7928 (Truong's wife) (collectively, the "Schwab actions") — as related at the request of several of the parties even though Truong filed them as unrelated; (2) subsequently dismissing those actions and sanctioning Truong pursuant to 28 U.S.C. § 1927, see Vishipco Line v. Charles Schwab Co., 2003 WL 1345229 (S.D.N.Y. March 19, 2003); (3) receiving the transfer of three related cases — Truong v. Tran, 03 CIV. 3423, Truong v. Levy, 03 Civ. 3424 andTruong v. Schwab, 03 Civ. 3425 — filed by Truongin the District Court for the District of New Jersey (the "New Jersey actions"); (4) denying Truong's motion to disqualify this Court from adjudicating the New Jersey actions; (5) denying Truong's March 2003 motion to hold Schwab in contempt of court for allegedly violating this Court's July 13, 1999 Order set forth in Mac Truong v. Vitranschart, 98 Civ. 6328; (6) denying various motions to reconsider both the March 19, 2003 Opinion dismissing the Schwab actions and a related March 20, 2003 Order dismissing (a)Mac Truong v. Vitranschart, 98 Civ. 6328, and (b) Vitranschart's claims against the defendants in this action, see Vitranschart v. Levy, 00 Civ. 3618, slip op. (SHS) (S.D.N.Y. March 20, 2003); and (7) dismissing Truong's third-party complaint alleging 19 causes of action against New York State Justices Tompkins and Cozier — each of whom presided over state court actions involving Truong — for conspiracy, coercion and extortion, among other allegations,see Vitranschart v. Levy, 00 Civ. 3618, 2000 WL 1239081 (S.D.N.Y. August 31, 2000).
"[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion." Liteky, 510 U.S.at 555.114 S.Q. 1147: U.S. v. Arena, 180 F.3d 380, 398 (2d Cir. 1999) ("adverse rulings in other litigation or the same litigation involving the party seeking recusal generally do not constitute a basis for recusal");Hoffenberg v. Hoffman Pollok, 2002 WL 31444994, *2 (S.D.N.Y. Oct. 31, 2002). While Truong's allegations may constitute "proper grounds for appeal," they are not evidence of a deep-seated favoritism or antagonism and do not result in a valid basis for recusal.Liteky, 510 U.S. at 555, 114 S.Ct. 1147. Truong also conclusorily states that this Court had "already made up his mind" because of "personal, extrajudicial knowledge," Truong Aff. at 29, and theorizes that the Court has "a secret agreement with or a personal interest in the well-being of Schwab and/or Levy Boonshoft Spinelli. Id. However, mere bald speculations of bias and prejudice do not suffice to show partiality. See Fulton v. Robinson, 289 F.3d 188, 199 (2d Cir. 2002); U.S. v. IBT, 170 F.3d 136, 147 (2d Cir. 1999). Accordingly, given the totality of circumstances, Truong has failed to prove that "an objective, disinterested observer fully informed of the underlying facts, [would] entertain significant doubt that justice would be done absent recusal," or that "a reasonable person, knowing all the facts," would question this Court's impartiality. Yousef, 327 F.3d at 169. Truong's motion to disqualify this Court should be denied.
Conclusion
For the reasons set forth above, the motion of Mac Truong to recuse this Court pursuant to 28 U.S.C. § 455(b)(1) is denied.
SO ORDERED.