Kabbaj v. Simpson

Filing 96

MEMORANDUM OPINION: The Court denies plaintiffs Motion to Recuse and Amended Motions to Recuse United States Magistrate Judge Mary Pat Thynge, pursuant to 28 U.S.C. §§ 144 and 455 in C. A. No. 10-431-RGA at D.I. 74, 75, and further denies as the motions found in C. A. Nos. 13-1522-RGA at D.I. 118, 119; 14-780-RGA at D.I. 5, 16, 17; 14-982-RGA at D.I. 7, 8; 14-1001-RGA at D.I. 24, 29 are moot. Signed by Judge Mary Pat Thynge on 12/18/14. (cak)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
YOUNES KABBAJ ,
Plaintiff,
v.

Civil Action No. 10-431-RGA

AMERICAN SCHOOL OF TANGIER,
et al. ,
Defendants.

YOUNES KABBAJ ,
Plaintiff,
Civil Action No. 12-1322-RGA-MPT

v.
MARK SIMPSON,
Defendant.

YOUNES KABBAJ ,
Plaintiff,

v.

Civil Action No. 13-1522-RGA

GOOGLE INC., et al. ,
Defendants.

YOUNES KABBAJ ,
Plaintiff,

v.
AMERICAN SCHOOL OF TANGIER,
et al. ,
Defendants.

YOUNES KABBAJ ,

Civil Action No. 14-780-RGA

Plaintiff,
Civil Action No. 14-982-RGA

v.
AMERICAN SCHOOL OF TANGIER,
et al.,
Defendants.

YOUNES KABBAJ,
Plaintiff,
Civil Action No. 14-1001-RGA

v.
MARK SIMPSON,
et al.,
Defendants.

Younes Kabbaj, Plantation, Florida, Pro Se Plaintiff.
Jennifer Gimler Brady, Esq., and Michael Brendan Rush, Esq., Potter Anderson &
Corroon, LLP, Wilmington, Delaware; Counsel for Defendants American School of
Tangier, Board of Trustees for the American School of Tangier, Stephen E. Eastman,
and Edward M. Gabriel.
Ian Robert Liston, Esq., Wilson Sonsini Goodrich & Rosati, Georgetown, Delaware;
Counsel for Defendants Google Inc. and Amazon Inc.

A. Thompson Bayliss, Esq., Abrams & Bayliss LLP; Counsel for Defendant Yahoo Inc.
Randolph Karl Herndon, Jr., Esq., McDermott Will & Emery LLP, Washington, D.C.;
Counsel for Defendants Mark S. Simpson and Brian K. Albro.

MEMORANDUM OPINION

December 18, 2014
Wilmington, Delaware

~~eJudge:
Presently before the Court are plaintiff's Motions for Recusal and Amended
Motions for Recusal with Supporting Affidavits, filed in C. A. Nos. 10-431-RGA, 121322-RGA-MPT, 14-780-RGA, 14-982-RGA, and 14-1001-RGA. 1 For the reasons that
follow, the motions are denied. 2

I.

BACKGROUND

Plaintiff Younes Kabbaj , a former employee of the American School of Tangier,
filed numerous lawsuits alleging employment discrimination, violations of a state
whistleblowers' protection act, negligence , intentional infliction of emotional distress,
intentional interference with a contractual relationship , abuse of process, conversion ,
breach of contract, tortious interference, and defamation . See C. A. Nos. 10-431-RGA,
12-1322-RGA-MPT, 13-1522-RGA, 14-780-RGA, 14-982-RGA, 14-1001-RGA. He
appears prose, has paid the filing fee in certain cases, and was granted leave to

1

The motions were also filed in C. A. No. 12-1322-RGA-MPT, but will not be
addressed since final judgment in this matter case was affirmed by the Third Circuit
Court of Appeals. (See id. at D.I. 77). On December 19, 2012 , an order was entered in
C. A. No. 12-1322-RGA-MPT referring the case to me to hear and resolve all pretrial
matters up to and including the resolution of case dispositive motions pursuant to 28
U.S.C. § 636(b). Plaintiff filed the motions for recusal after the appellate court
summarily affirmed the earlier final judgment in this matter. (D.I . 77). Plaintiff
continued to file motions in the case , as well as another notice of appeal. (See id. at
D. I. 78 , 83 , 84, 85, 86). Because the motions for recusal filed in C. A. No. 12-1322RGA-MPT were contrary to a court order (see D.I. 80), they were deactivated.
Inasmuch as there is no apparent reason to address motions filed in a case which has
been affirmed on appeal , they need not be further addressed.
Regarding C.A. Nos. 13-1522-RGA, 14-780-RGA, 14-982-RGA, and 14-1001RGA, none were referred or assigned to me. The only matter referred pursuant to 26
U.S.C. § 636(b) was 12-1322-RGA-MPT, which as noted above was affirmed on
appeal.
2
The motions also sought the recusal of United States District Court Judge
Richard G. Andrews . All motions seeking his recusal were denied on November 12,
2014.

proceed in forma pauperis in others. In all cases , plaintiff filed identical motions for
recusal and amended motions for recusal , with supporting affidavits. Id. at C. A. Nos.
10-431-RGA at D.I. 74, 75; 12-1322-RGA-MPT at D.I. 83, 84; 13-1522-RGA at D.I. 118,
119; 14-780-RGA at D.I. 16, 17; 14-982-RGA at D.I. 7, 8; 14-1001-RGA at D.I. 24, 29). 3
These motions for recusal generally address both my recusal and that of District Court
Judge Richard G. Andrews , with the initial motions specifically addressing Judge
Andrews' recusal , while the amended motions, although generally directed to recusal of
both judges, specifically target the undersigned's recusal. Plaintiff seeks to have the
cases assigned to a "neutral judge."
In the first action commenced by plaintiff, C. A. No. 10-431-RGA, the parties
entered into a confidential settlement agreement,4 followed by a joint motion to dismiss
with prejudice and consent order, granted by the Court on April 24, 2012. (Id. at D.I.
54 ). These matters were heard by me after the parties consented to my jurisdiction for
all matters related to settlement and to rule on the joint motion to dismiss with prejudice
and consent order. (Id. at D.I. 53). The dismissal order provided that the Court would
retain jurisdiction of the matter following dismissal for the purpose of enforcing the
parties' written settlement agreement and to resolve disputes regarding that settlement
agreement. (Id. at D.I. 54). In addition , the dismissal order restrained and prohibited
plaintiff from having any contact with numerous persons and entities (the "Releasees")

3

Because the motions are identical , for the sake of simplicity, when referring to
the motions for recusal and the amended motions for recusal , only the docket items in
C. A. No. 10-431-RGA will be cited .
4
Plaintiff attached a redacted copy of the confidential settlement agreement to
the motion for recusal. (C. A. No. 10-431-RGA at D. I. 74 at 95-110).

2

involved in C. A. No. 10-431-RGA. (Id.) Finally, the dismissal order provided that,
unless prior written permission is obtained from this Court, defendants may not bring a
civil action against plaintiff, and plaintiff may not institute a civil action against any of the
releasees of the settlement agreement with respect to any matter not released by the
parties' settlement agreement, including but not limited to , any claim that any party
breached the settlement agreement. 5 Plaintiff filed a request to engage in mediation
and/or to file a lawsuit which seeks to modify the terms of the settlement agreement
and settlement order. (Id. at D.I. 65). 6
It appears plaintiff initiated three actions without receiving prior Court approval in
derogation of the dismissal order, C. A. Nos. 14-780-RGA, 14-982-RGA, and 14-1001RGA. 7 All subsequent cases filed by plaintiff are related to C. A. No. 10-431-RGA.

5

The numerous releasees are identified in paragraph 11 of the Confidential
Settlement Agreement.
6
Plaintiff's request, as well as other related filings , will be addressed in a
separate decision.
7
Shortly after commencement of C. A. No. 14-780-RGA, plaintiff filed a motion
for recusal that was not filed in any of his other cases. (Id. , D.I. 5). Therein, he states
that: (1) the Court was involved in crafting the settlement agreement in C. A. No. 10431-RGA; (2) the provisions of the settlement agreement were misrepresented to him
during settlement negotiations; (3) the Court has since decided it will not be involved in
any mediation among the parties; and (4) the Court has refused to allow plaintiff to deal
with defendants' breaches of the agreement. (Id. at ml 2-13). Plaintiff contends the
Court has behaved in a discriminatory manner towards him and has lent its support to a
malicious and illegal criminal prosecution of him in New York City. (Id. at~ 13). Plaintiff
seeks the recusa l of both myself and Judge Andrews and reassignment to another
judge, for review of the settlement agreement, and to decide whether, if any, breach of
the settlement agreement occurred and by whom. (Id. at~ 15). The Court finds no
need to address this motion separately inasmuch as its issues are encompassed by the
Motions for Recusal and Amended Motions for Recusal filed in all cases. Moreover, as
indicated previously, this matter is not presently and has not been referred to the
undersigned.

3

Plaintiff seeks my recusal pursuant to 28 U.S.C. § 144 and 28 U.S.C. § 455 on
the grounds of a "personal bias and/or prejudice" against him. (C . A. No. 10-431RGA, D.I. 74 motion at ,-r 2). 8

II.

STANDARDS OF LAW

Section 144 requires federal district court judges to recuse if a party timely files a
sufficient affidavit, setting forth factual statements showing the judge has personal bias
or prejudice against a party. 28 U.S.C. § 144. An affidavit that puts forth conclusory
statements and opinions, however, is insufficient and does not require recusal under

§ 144. See Hill v. Carpenter, 323 F. App'x 167, 170 (3d Cir. 2009).
Section 455 applies regardless of whether a party files a formal motion and
affidavit for recusal, and requires recusal when a judge's impartiality "might reasonably
be questioned ," 28 U.S.C. § 455(a), or "[w]here [she] has a personal bias or prejudice
concerning a party." 28 U.S.C. § 455(b)(1 ).
The test for recusal is an objective one and requires recusal where a "reasonable
person , with knowledge of all the facts , would conclude that the judge's impartiality
might reasonably be questioned." In re Kensington Int'/ Ltd. , 368 F.3d 289, 301 (3d Cir.
2004 ). The bias required before recusal is warranted under either §§ 144 or 455 "must
stem from a source outside of the official proceedings. " Liteky v. United States, 510
U.S . 540 , 544, 554 (1994). Notably, "a party's displeasure with legal rulings does not
form an adequate basis for recusal. " Securacomm Consulting, Inc. v. Securacom Inc. ,
224 F.3d 273 , 278 (3d Cir. 2000). In order to establish the level of bias necessary to
8

Sections 144 and 455 assume recusal involves the judge before whom a matter
is pending; thus, where a judge is not assigned or referred a matter, recusal is moot.

4

require recusal, facts that arose during the course of litigation are usually insufficient.
Generally, "opinions formed by a judge on the basis of events occurring in the course of
prior proceedings do not constitute a basis for a bias motion under 28 U.S.C. §§ 144,
455(a) and 455(b)(1 ), unless they display a deep-seated antagonism that would make
fair judgment impossible." Atwell v. Schweiker, 27 4 F. App'x 116, 117 (3d Cir. 2007).

Ill.

DISCUSSION
Plaintiff argues recusal is warranted and claims the undersigned: (1) has

obvious bias, is not neutral, and was hostile towards him; 9 (2) oversaw a settlement
conference on March 12, 2012, helped draft the language of the confidential settlement
agreement, explained its provisions and "lied" to plaintiff regarding how the Court would
eventually interpret the settlement agreement, and deceived and induced plaintiff into
signing the settlement agreement by making false claims and with no intent to enforce
the settlement agreement; (3) issued a consent order as a means to immunize
defendants against any further litigation for their breaches of contract; (4) refused to
enforce the terms of the settlement agreement after the undersigned's assignment of
jurisdiction to enforcement the agreement for purposes of specifically obstructing its
enforcement; (5) retained jurisdiction over the settlement agreement to prevent plaintiff
from filing additional litigation should defendants breach the settlement agreement;
(6) refused to enforce the settlement agreement and was part of an illegal attempt to
assist defendants in their attempt to have plaintiff incarcerated on false charges;
9

Plaintiff contends the undersigned exhibited hostility towards him in a March 8,
2013 order when referencing him as a frequent filer, and showed bias in a Report and
Recommendation by "accus"[ing] him of filing "a pleading for nefarious purposes"
resulting from a purported typographical error.
5

(7) refused to hold hearings to clarify matters regarding letters of apologies, publications
of false claims, breaches of the settlement agreement, and enforcement of the terms of
the settlement agreement; (8) is an advocate of, and favors , the homosexual religious
lobby and the religious beliefs of defendants; (9) took advantage of plaintiff's pro se
status; (10) refused to act to restrain defamation and threats to plaintiff; (11) made
rulings in favor of defendants and shielded them from litigation; (12) quashed
subpoenas that would have allowed plaintiff to identify the persons who were defaming
or threatening him; (13) banned discovery; (14) refused to admonish defendants; (15)
entered an order in Civ. Act. No. 12-1322-RGA-MPT that has no basis in law; and (16)
engaged in a series of orders that denied him the ability to serve subpoenas and the
ability to amend the complaint. (Id. at D.I. 74, aff. at

,m 5, 41 , 42 , 47, 51; D.I. 75 at ,m

5, 6, 7, 8, 15, 16, 17, 18, 22 , 23, 24, 26 , 29, 30 , 32, 35, 36 , 42-44, 46).

A.

Jurisdiction

As discussed previously, it is only in C. A. No. 10-431-RGA that the parties
consented to the undersigned's limited jurisdiction. Plaintiff seeks recusal in all cases
even though the undersigned is no longer involved , to prevent any future involvement at
a later date. (D.I. 75, ~ 3). Plaintiff's other open cases are not referred to the
undersigned and , although my decisions in C. A. No. 10-431-RGA could have an effect
on those matters, I cannot recuse from cases that are not currently referred to me or to
which the parties have not consented to my jurisdiction. Quite simply, I have no
jurisdiction in cases filed by plaintiff other than the limited jurisdiction in C. A. No. 10431-RGA as described above. Accordingly, all motions for recusal in those cases other

6

than C. A. No. 10-431-RGA are denied as moot.
B.

Bias

Plaintiff asserts that the presence of a gay flag in the undersigned's chambers,
coupled with obstruction of litigation and immunity conferred upon defendants due to
their being high-level members of the homosexual religion 10 and homosexual lobby
demonstrates a clear predisposition of bias against him and the lack of proper judicial
temperament necessary to be a neutral judge. (D.I. 75, ,-r 47).
His belief appears to be based upon an afghan plaintiff incorrectly describes as a
"gay pride flag" that he noticed on March 12, 2012 during the settlement conference
negotiations held in my chambers. (Id. at ,-r 27). There is no "gay pride flag" in my
chambers. There is, however, a couch that has a multi-colored afghan draped on the
back of it. The afghan was made by my aunt and given to me as a gift. The Court does
not believe that anyone could reasonably question the undersigned's impartiality based
upon these assertions.
C.

Rulings by the Court

The affidavits complain of the undersigned's conduct during mediation and
rulings. These numerous complaints are not bases for recusal. "[A] party's displeasure
with legal rulings does not form an adequate basis for recusal." Securacomm
Consulting, Inc. v. Securacom, Inc., 224 F.3d 273, 278 (3d Cir. 2000). All such rulings

complained of occurred in 12-1322-RGA which, when objections were filed, were

10

The affidavit explains in detail plaintiff's belief that homosexuality is a religion .
(D.I. 74, ,-r,-r 8-14, 27-30).

7

affirmed , and subsequently dismissed on appeal. Those decisions addressed quashing
subpoenas , disallowing discovery, denying various other motions , including a motion to
amend the complaint, and granting a defendant's motion to dismiss.
Plaintiff has not met the standard for recusal under either §§144 or 455 given the
insufficiency of the affidavit. Plaintiff did not submit any objective, factual assertions
that would indicate bias. Instead , his proffered grounds for recusal amount to
conclusions based upon suspicion , conjecture and speculation , and/or assertions that
are contrary to the records in these cases. In addition , recusal is not required under
objective standard of§ 455 . To the extent plaintiff attempts to implicate extrajudicial
sources , the undersigned has examined the totality of the circumstances, and finds that
the provisions of 28 U.S.C. § 455(a) do not mandate recusal.
After careful and deliberate consideration , the undersigned concludes there is no
actual bias or prejudice towards plaintiff, and that a reasonable, well-informed observer
would not question my impartiality. In light of the foregoing standard, and after
considering plaintiff's assertions, there are no grounds for recusal under 28 U.S.C.
§§ 144 or 455.
D.

Timeliness

Although there is no express timeliness provision in§ 455(a), "most circuits
considering the matter have concluded that a litigant must raise the disqualification
issue within a reasonable time after the grounds for it are known." 11 Here, my recusal is
11

United States v. Barrett, 111 F.3d 947, 951-52 (D.C. Cir. 1997) (citing In re
Kansas Pub. Emps. Ret. Sys. , 85 F.3d 1353, 1360 (8th Cir. 1996) (noting that "even
though § 455 has no express timeliness requirements , claims under § 455 will not be
considered unless timely made."); see also United States v. Brinkworth, 68 F.3d 633,

8

sought more than two years after mediation , execution of the settlement documents
and agreement to the consent order by plaintiff and plaintiff's admitted concern of my
potential bias in favor of homosexuals, heightened by the purported "gay pride flag."
Other bases for recusal are directed to my rulings in 12-1322-RGA. The last decision
issued by the undersigned in that matter, which granted a defendant's motion under
FED. R. C1v. P. 12(b )(2), occurred on June 6, 2013 .12 Thereafter, on June 17, 2013 and
July 2, 2013, motions were no longer referred to me. 13 Plaintiff waited more than fifteen
months until August 2014 to move to recuse. Numerous federal circuits recognize that
such a motion be made promptly when alleged disqualifying facts are known or should
have been known. Plaintiff's motion and accompanying affidavits do not meet this
requirement.

Ill. CONCLUSION
For the above reasons , the Court denies plaintiff's Motion to Recuse and
Amended Motions to Recuse United States Magistrate Judge Mary Pat Thynge,
pursuant to 28 U.S.C. §§ 144 and 455 in C. A. No. 10-431-RGA at D.I. 74, 75, and
further denies as the motions found in C. A. Nos. 13-1522-RGA at D.I. 118, 119; 14780-RGA at 0.1. 5, 16, 17; 14-982-RGA at 0 .1. 7, 8; 14-1001-RGA at 0 .1. 24, 29 are

639 (2d Cir. 1995) ("Although§ 455 does not specify a time limit for application , a
timeliness provision has been judicially implied. A party must bring a disqualification
motion 'at the earliest possible moment after obtaining knowledge of facts
demonstrating the basis for such a claim."') (internal quotations and citations omitted).
12
See D.I. 56 . Rulings which plaintiff claims demonstrate bias, include quashing
subpoenas, banning discovery, refusing to admonish defendants, entering the June 6,
2013 Report and Recommendation and engaging in a series of orders denying him the
ability to serve subpoenas and amending the complaint, occurred prior to my last
decision. See D.I. 42 entered March 7, 2013.
13
See docket references to motions filed at D.I. 57 , 60-61 in 12-1322-RGA.
9

moot.
An appropriate order will be entered.

10