Bronick v. State Farm Mutual Automobile Insurance Company et al

Filing 88

ORDER regarding Plaintiff's Motion to Recuse the Hon. James A. Teilborg Pursuant to 28 U.S.C. § 144 and 28 U.S.C. § 455 (Doc. 76 ). ORDERED that Plaintiffs Motion to Recuse the Honorable James A. Teilborg Pursuant to 28 U.S.C. § 144 and 28 U.S.C. § 455 (Doc. 76) is denied. See order for details. Signed by Judge Neil V. Wake on 7-11-13. (NVW, nb)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Sandra Bronick,

No. CV-11-01442-PHX-JAT (NVW)
Plaintiff,

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v.

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ORDER

State Farm Mutual Automobile Insurance
Company,

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Defendant.

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Before the Court is Plaintiff's Motion to Recuse the Honorable James A. Teilborg

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Pursuant to 28 U.S.C. § 144 and 28 U.S.C. § 455 (Doc. 76). Plaintiff moves to recuse

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Judge Teilborg from this case on that grounds that Judge Teilborg’s relationship with a

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witness in the case could cause an objective observer to question his impartiality. For the

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following reasons, the Motion will be denied.

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I.

Substantive Legal Standard

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Under 28 U.S.C. § 144, if “the judge before whom the matter is pending has a

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personal bias or prejudice either against him or in favor of any adverse party, . . . [he]

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shall proceed no further . . . .” Under 28 U.S.C. § 455(a), “[a]ny . . . judge . . . shall

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disqualify himself in any proceeding in which his impartiality might reasonably be

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questioned.”

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reasonable person with knowledge of all the facts would conclude that the judge’s

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impartiality might reasonably be questioned.” Pesnell v. Arsenault, 543 F.3d 1038, 1043

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(9th Cir. 2008) (citing United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997)).

Under both recusal statutes, the substantive standard is “Whether a

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As a result, “[t]he substantive standard for recusal under 28 U.S.C. § 144 and 28 U.S.C.

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§ 455 is the same.” United States v. McTiernan, 695 F.3d 882, 891 (9th Cir. 2012).

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II.

Procedural Requirements § 144

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The principle difference between the two sections is thus that the procedural

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requirements for § 144 are much more demanding. Recusal is mandatory pursuant to §

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144 “whenever a party to any proceeding in a district court makes and files a timely and

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sufficient affidavit . . . .” 28 U.S.C. § 144. As a result, § 144 is “unusual because it

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requires that the district judge accept the affidavit as true even though it may contain

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averments that are false and may be known to be so to the judge.” In re Martinez-Catala,

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129 F.3d 213, 218 (1st Cir. 1997). In light of the automatic nature of relief, and because

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§ 144 “expressly conditions relief upon the filing of a timely and legally sufficient

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affidavit,” United States v. Sibla, 624 F.2d 864, 867 (9th Cir. 1980), courts have been

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exacting in their requirement of a facially sufficient affidavit and that the movant follow

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the procedural prerequisites.

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procedural steps in order to obtain disqualification under § 144. When a party fails to file

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the required affidavit, that party is not entitled to recusal under §144. United States v.

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Sammons, 918 F.2d 592, 598 (6th Cir. 1990). Similarly, when a party fails to accompany

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the affidavit with the required “certificate of counsel of record stating that [the affidavit]

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is made in good faith,” 28 U.S.C. § 144, a motion for recusal under § 144 is insufficient.

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United States v. Barnes, 909 F.2d 1059, 1072 (7th Cir. 1990).

As a result, a party must strictly follow the precise

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In this case, Plaintiff’s attorney first filed “affidavit” in support of her Motion to

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recuse, unsigned by Plaintiff herself. (Doc. 77.) Motions under § 144 are subject to

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dismissal when the attorney, rather than a party, submits the affidavit in question. In re

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Cooper & Lynn, 821 F.2d 833, 838 (1st Cir. 1987). Here, therefore, that procedural error

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alone would be sufficient to deny the Motion under § 144 because courts “need consider

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only the affidavit filed with [a party’s] first motion.” United States v. Balistrieri, 779

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F.2d 1191, 1200 (7th Cir. 1985).

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The Court has considered Plaintiff’s corrected affidavit as well, however, and it

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too is procedurally deficient. Though the first affidavit contained the required certificate

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of counsel (Doc. 78), the corrected affidavit contained no certificate of counsel stating

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that the corrected affidavit was made in good faith. Like the failure to file the first

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affidavit on behalf of Plaintiff, the lack of a certificate of counsel is alone grounds to

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reject the Motion under § 144. Morrison v. United States, 432 F.2d 1227, 1229 (5th Cir.

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1970). Combined, these procedural errors are especially prominent. In order to obtain

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relief under § 144, a party must show strict compliance with the procedural requirements

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of that section. Plaintiff has failed on two occasions to comply with those requirements,

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and so her Motion will be denied under § 144.

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III.

Objective Standard Under § 455(a)

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Unlike § 144, § 455 contains no explicit procedural requirements. “The test for

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disqualification under section 455(a) is an objective one”; courts consider whether

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disqualification is required from the perspective of a reasonable person. United States v.

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Nelson, 718 F.2d 315, 321 (9th Cir. 1983). “The ‘reasonable person’ in this context

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means a ‘well-informed, thoughtful observer,’ as opposed to a ‘hypersensitive or unduly

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suspicious person.’” Clemens v. United States District Court for the Central District of

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California, 428 F.3d 1175, 1178 (9th Cir. 2005) (quoting In re Mason, 916 F.2d 384, 385

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(7th Cir. 1990)).

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To determine whether disqualification is warranted under § 455(a), courts “apply

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the general rule that questions about a judge’s impartiality must stem from extrajudicial

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factors, that is, from sources other than the judicial proceeding at hand.” Id. (citations

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and internal quotation marks omitted). Claims under § 455(a) are fact-driven, and must

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be decided based on “an independent examination of the unique facts and circumstances

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of the particular claim at issue.” Id. (citing United States v. Bremers, 195 F.3d 221, 226

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(5th Cir. 1999)). Because under § 455 courts consider all of the relevant facts, a motion

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to recuse under § 455 is not limited to the affidavit of a party as in § 144. The focus of an

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analysis under § 455(a) is thus whether a well-informed, thoughtful observer might

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question the judge’s impartiality, based on the unique facts and circumstances of the

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particular claim. Whether a judge is in fact impartial is thus not dispositive of a claim for

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disqualification under this section; rather, § 455(a) requires disqualification for the

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appearance of partiality.

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IV.

Analysis Under § 455(a)

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In this insurance case for breach of contract and bad faith claim handling,

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Defendant hired an independent medical examiner, Dr. Hartzler, to evaluate Plaintiff.

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Plaintiff bases her Motion for Recusal on the grounds that Judge Teilborg’s relationship

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with Dr. Hartzler, who will be an important witness in the case, raises questions about his

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impartiality.

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At a hearing on Defendant’s Motion for Partial Summary Judgment on May 15,

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2013, Judge Teilborg informed the parties that, in preparation for the hearing, he became

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aware that Dr. Hartzler was a potential witness in the case. In light of that, Judge

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Teilborg informed the parties that he had visited the practice group of which Dr. Hartzler

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was a member on three occasions to have x-rays read. On two of those occasions—one

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sometime in the last five years, and one sometime within the last few months—Dr.

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Hartzler read Judge Teilborg’s x-rays. Judge Teilborg had not seen Dr. Hartzler outside

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of those two occasions, and had no other relationship, social or otherwise, apart from

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those visits. Judge Teilborg informed the parties at that hearing that he did not believe

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those visits formed any basis for recusal. (Doc. 83 at 4.)

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In addition, Judge Teilborg’s former firm, Teilborg, Sanders and Park, had, in the

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past, hired Dr. Hartzler to complete a number of independent medical examination

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reports as part of their medical malpractice defense work. Plaintiff identified seven cases

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in which Dr. Hartzler was hired by Judge Teilborg’s previous firm, all but two of which

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took place long after Judge Teilborg had already left the firm. Judge Teilborg did not

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work directly on either case in which Dr. Hartzler had been hired while Judge Teilborg

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was still at the firm.

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Plaintiff argues that these two facts—that Judge Teilborg saw Dr. Hartzler twice

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as a patient, and that Judge Teilborg’s former firm hired Dr. Hartzler to perform

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independent medical examinations—create the objective appearance of partiality in this

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case. A central part of Plaintiff’s case, she avers, will be to argue that Defendants acted

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in bad faith by hiring Dr. Hartzler to perform the independent medical examination. To

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do so, Plaintiff intends to attack Dr. Hartzler as inherently biased in performing

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independent medical examinations for Defendants in the past and to attack the credibility

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of the results of his exams. According to Plaintiff, a reasonable observer would question

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Judge Teilborg’s ability to be impartial when she attacks the credibility of a doctor on

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whose medical expertise Judge Teilborg has relied.

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This case therefore falls into the category of one in which a judge has a prior

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relationship with a witness. Judge Teilborg has already determined that he does not

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believe there is any basis for recusal because of his relationship with Dr. Hartzler. Under

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§ 455(a), however, the fact that Judge Teilborg does not have actual bias for or against

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any party or witness is not dispositive. Instead, the Court considers whether a thoughtful

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observer, knowing and understanding all the relevant facts and circumstances, could

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reasonably question Judge Teilborg’s impartiality in the case on the basis of his

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relationship with Dr. Hartzler.

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In general, a judge’s mere acquaintance or familiarity with a witness does not

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require disqualification. United States v. Sundrud, 397 F. Supp. 2d 1230, 1233 (C.D. Cal.

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2005).

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witness rises to a level that is so friendly or antagonistic that it would lead a reasonable

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person to question the judge’s impartiality. As a general rule, the more insignificant the

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relationship and the greater the temporal distance between contacts, the less likely it is

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that a judge's impartiality can reasonably be questioned.

Recusal is required, however, where a judge’s personal relationship with a

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Because of that general rule, Plaintiff’s contention that Judge Teilborg should be

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disqualified on the basis that his former law firm hired Dr. Hartzler is without merit.

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While Judge Teilborg was a member of the firm, more than 12 years ago, he did not

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directly work on any case in which Dr. Hartzler was hired. And when the firm hired Dr.

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Hartzler more recently, Judge Teilborg had already been on the bench for more than five

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years. There was, in short, no meaningful contact between Judge Teilborg and Dr.

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Hartzler in his capacity as a lawyer at Teilborg, Sanders and Park. The subsequent

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contact between Dr. Hartzler and the firm after Judge Teilborg left the firm could not

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reasonably raise a question about Judge Teilborg’s impartiality.

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With respect to Judge Teilborg’s two visits to Dr. Hartzler as a patient to have x-

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rays read, the parties have not cited any factually similar case which would dictate a

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result here. However, there are many cases in which a judge’s relationship with a witness

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was much closer than the one at issue in this Motion and where the judge properly did not

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recuse. For example, the Eighth Circuit found disqualification unnecessary even though

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the judge maintained a friendship of thirty-six years with a fact witness and remained a

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client of the witness’s law firm in an ongoing unrelated matter. Fletcher v. Conoco Pipe

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Line Co., 323 F.3d 661, 665 (8th Cir. 2003). There, the court held that a recusal claim

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should generally be denied when it “alleg[es] no more than a friendship between a judge

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and a witness. . . .” Id.

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Plaintiff contends, however, that Judge Teilborg’s relationship with Dr. Hartzler is

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more significant than a friendship because his visits to Dr. Hartzler as a patient

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demonstrate that he has a deeply personal and trusting relationship with Dr. Hartzler.

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According to Plaintiff, this is especially likely to cause an objective observer to question

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Judge Teilborg’s impartiality in this case because the doctor’s credibility as a physician

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will be attacked. The Court is not, however, persuaded that Judge Teilborg’s relationship

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with this witness would lead a reasonable, informed person to doubt his impartiality.

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Judge Teilborg’s relationship with Dr. Hartzler was limited to three visits for

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minor orthopedic issues. The visits were to Dr. Hartzler’s orthopedic group, and on one

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occasion Judge Teilborg visited a different member of the group. If this were a case in

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which Dr. Hartzler was Judge Teilborg’s general physician, or Dr. Hartzler had seen

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Judge Teilborg repeatedly over an extended period, disqualification would likely be

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necessary. But in this case, the visits were for isolated incidents separated by many

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years.

There were no follow-up visits, and no indication that Judge Teilborg’s

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relationship with Dr. Hartzler was at all personal. Especially when compared with the

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ongoing relationship between the judge and the witness’s law firm in Fletcher, Judge

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Teilborg’s relationship with Dr. Hartzler was limited, both in scope and temporally. As a

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result, a thoughtful observer, knowing and understanding all the relevant facts and

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circumstances, could not reasonably question Judge Tielborg’s impartiality in the case.

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IT IS THEREFORE ORDERED that Plaintiff’s Motion to Recuse the Honorable
James A. Teilborg Pursuant to 28 U.S.C. § 144 and 28 U.S.C. § 455 (Doc. 76) is denied.
Dated this 11th day of July, 2013.

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