New London Tobacco Market, Inc. v. Kentucky Fuel Corporation et al

Filing 404

MEMORANDUM,OPINION AND ORDER: Accordingly, and the Court being sufficiently advised, Plaintiff's Motion for Recusal [R. 388 under 28 U.S.C. § 144 and § 455 is hereby DENIED. Signed by Judge Gregory F. VanTatenhove on 11/28/18. (MRS) cc: COR,

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON
NEW LONDON TOBACCO MARKET,
INC., AND FIVEMILE ENERGY, LLC,
Plaintiffs,
v.
KENTUCKY FUEL CORPORATION AND
JAMES C. JUSTICE COMPANIES, INC.,

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Civil No. 6:12-cv-00091-GFVT-HAI

MEMORANDUM OPINION AND
ORDER

Defendants.
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This matter is before the Court on Defendants’ Motion for Recusal pursuant to 28 U.S.C.
§ 144 and 28 U.S.C. § 455. [R. 388.] For the following reasons, Defendants’ motion is
DENIED.
I
Litigation in this matter has been protracted and is yet ongoing. This Court has noted
before that Defendants “have a long history of contumacious practice in this case that began in
2012.” [R. 341.] On numerous occasions, Defendants have failed to produce timely discovery
or respond to discovery requests altogether, failed to obtain counsel, and failed to appear for
scheduled depositions, all in defiance of this Court’s orders. [See R. 341.] In September, 2014
this Court entered Default as to liability against the Defendants. [R. 206.]
What remains to be settled is the issue of damages. An evidentiary hearing on that issue
is set before Magistrate Judge Hanly A. Ingram on December 11, 2018. [R. 373.] Now,
Defendants have moved for Judge Ingram’s recusal, on the grounds that his prior rulings

demonstrate “bias and prejudice against Defendants.” [R. 388-1.] Defendants also request a
telephonic conference to argue this motion as well as reschedule the evidentiary hearing. Id.
II
Under § 144, whenever a party to a proceeding in district court makes a motion and files
a sufficient affidavit “that the judge before whom the matter is pending has a personal bias or
prejudice either against him or in favor of any adverse party,” the judge must recuse. A party
may only file one of these motions in any case, and that motion must be accompanied by a
certificate from the counsel of record stating that the motion was made in good faith. 28 U.S.C.
§ 144. It is well settled that 28 U.S.C. § 455 “must be construed in para materia” with § 144.
United States v. Story, 716 F.2d 1088, 1091 (6th Cir. 1983). Under both statutes, recusal is not
subjective and is required “if a reasonable, objective person, knowing all of the circumstances,
would have questioned the judge’s impartiality.” Hughes v. United States, 899 F.2d 1495, 1501
(6th Cir. 1990).
The Defendants filed their motion and two affidavits1 simultaneously. [R. 388; R. 388-2;
R. 388-3.] In their memorandum accompanying the motion, counsel for defendants indicated
“Defendants mean no disrespect by this Motion, but they also submit that the Motion is wellgrounded and is not simply a reaction to rulings that have not been in Defendants’ favor.” [R.
388-1.] However, the motion did not contain a “certificate from the counsel of record stating
that it is made in good faith,” as required by § 144. 28 U.S.C. § 144. Because Defendants have
not complied with the statutory requirement, the motion must be denied. Scott v. Metropolitan
Health Corp., 234 F. App’x 341, 352–53 (6th Cir. 2007).

1

Section 144 requires the affidavit be that of a party to the litigation. 28. U.S.C. § 144. Because Jonnie L. Turner is
Defendants’ former attorney and not a party, this Court will not consider his affidavit. [ See R. 388-3.]

2

However, even if this Court construes Defense counsel’s assertion of good faith as proper
certification, the motion still fails. “[D]isqualification under section 455(a) must be predicated as
previously under section 144, upon extrajudicial conduct rather than on judicial conduct.” United
States v. Story, 716 F.2d 1088, 1091 (6th Cir. 1983) “‘Personal’ bias is prejudice that emanates
from some source other than participation in the proceedings or prior contact with related cases.”
Wheeler v. Southland Corp., 875 F.2d 1246, 1251 (6th Cir. 1989) (quoting Demjanjuk v.
Petrovsky, 776 F.2d 571, 577 (6th Cir. 1985)). It is well established that personal bias cannot
arise from the Court’s view of the law, and “judicial rulings alone almost never constitute a valid
basis for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994).
Here, the only evidence Defendants supply of bias are Judge Ingram’s previous rulings in
the case. [R. 388-1.] Defendants point to language in various of Judge Ingram’s orders and
argue that “the tone and tenor of Magistrate Judge Ingram’s rulings” demonstrate clear bias
against the Defendants. [R. 388-1.] But Defendants fail to identify or even allege any
extrajudicial source of bias on the part of Judge Ingram while simultaneously admitting “that
[Defendants] have perhaps on certain occasions failed to adhere to the precise letter and spirit of
their discovery obligations in this matter.” [R. 388-1 at 2.] This is hedging. Defendants have
repeatedly defied or disregarded orders of this Court as well as those of Judge Ingram. [See R.
341; R. 345.] Further, this Court does not agree with Defendants’ position that Judge Ingram’s
rulings have been “inflammatory,” but even if they were, “expressions of impatience,
dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and
women . . . sometimes display” do not by themselves establish personal bias. Liteky v. United
States, 510 U.S. 540, 555–56 (1994).

3

Judges are presumed to be impartial, and the moving party carries the burden of proving
otherwise. Scott v. Metropolitan Health Corp., 234 F. App’x 341, 352 (6th Cir. 2007). In
addition to failing to comply with the statute, Defendants have failed to carry this substantial
burden. See id. Defendants’ assertion that Judge Ingram’s previous orders demonstrate personal
bias does not form a valid basis for a motion pursuant to 28 U.S.C. §§ 144 or 455.
III
Accordingly, and the Court being sufficiently advised, Plaintiff’s Motion for Recusal [R.
388] under 28 U.S.C. § 144 and § 455 is hereby DENIED.
This the 28th day of November, 2018.

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