Mathis v. Goldberg et al

Filing 44

MEMORANDUM OPINION (c/m to Plaintiff 3/25/13 sat). Signed by Chief Judge Deborah K. Chasanow on 3/25/13. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
BURMAN Y. MATHIS
:
v.

:

Civil Action No. DKC 12-1777

:
DAVID S. GOLDBERG, et al.
:
MEMORANDUM OPINION
Presently pending and ready for review in this breach of
contract and fraud case are the motions for a hearing pursuant
to

Federal

Rule

of

Evidence

201(e)

(ECF

No.

29),

for

reconsideration (ECF No. 30), for sanctions (ECF No. 32), for
recusal (ECF Nos. 31, 33), and for judicial notice (ECF Nos. 34,
35, 40, 41, 42) filed by Plaintiff Burman Mathis.

The issues

have been briefed, and the court now rules, no hearing being
deemed necessary.

Local Rule 105.6.

For the following reasons,

the motions will be denied.
I.

Background
On February 12, 2013, the court issued a memorandum opinion

and

order

dismissing

some

of

Plaintiff’s

claims

against

Defendants Goldberg and Skok, and entering summary judgment on
those

remaining.

(ECF

Nos.

27,

28);

see

also

Mathis

v.

Goldberg, No. 12-1777, 2013 WL 524708 (D.Md. Feb. 12, 2013).
The facts of this case are contained in that memorandum opinion

and will not be recounted here.
motion for reconsideration.

On March 4, Plaintiff filed a

(ECF No. 30).

In the following two

weeks, Plaintiff filed an additional nine motions, making nearly
identical

arguments

reconsideration.
II.

to

those

contained

in

his

motion

for

(ECF Nos. 29, 31-35, 40-42).

Motions for Recusal
Pursuant to 28 U.S.C. § 144 and 455, Plaintiff moves for

recusal

of

the

undersigned

because

“her

impartiality

might

reasonably be questioned” (ECF No. 31, at 1), and issues raised
in

this

case

may

“potentially

open

former

judge

Howard

Chasanow’s business . . . to large liability” (ECF No. 33, at
1).
Plaintiff’s motion is not proper under § 144.
requires,

inter

alia,

that

Plaintiff

file

an

Section 144

affidavit

with

facts to support that bias exists and also “a certificate of
counsel of record stating that [the affidavit] is made in good
faith.

See Molinaro v. Watkins–Johnson CEI Div., 359 F.Supp.

474, 476 (D.Md. 1973) (“[T]he affidavit is strictly construed
against the affiant, for a judge is presumed to be impartial . .
. The affidavit, to be sufficient, must identify and carefully
delineate

time,

supporting

the

place,
belief

persons,
of

bias

occasions,
or

and

circumstances

prejudice.”).

Plaintiff’s

affidavit fails to comply with basic form requirements that §
144

demands,

including

“a

certificate
2

of

counsel

of

record

stating that it is made in good faith.”

28 U.S.C. § 144.

Plaintiff cannot supply such a certificate because he has no
counsel of record.

See Morse v. Lewis, 54 F.2d 1027, 1032 (4th

Cir.

denied

1932),

cert.

286

U.S.

557

(1932)

(interpreting

predecessor statute to § 144 to require certificate to be signed
by an attorney regularly admitted to practice before that court
and concluding that the purpose of requiring a certificate of
good

faith

provided

by

by

counsel

the

act

of

to

record

insure

“is

as

one

far

of

as

the

safeguards

possible

that

no

affidavit of prejudice will be made except in good faith”);
Green v. Stevenson, No. 12-432, 2012 WL 2154123, at *2 (E.D.La.
June 13, 2012) (holding that “a pro se litigant may not use 28
U.S.C. § 144 as a means to seek recusal”); Murray v. Nationwide
Better Health, No. 10-3262, 2012 WL 698278, at *1 (C.D. Ill.
Mar. 1, 2012) (concluding that pro se plaintiff cannot proceed
under Section 144); U.S. v. Bravo Fernandez, 792 F.Supp.2d 178,
184 (D.P.R. 2011) (citing Morse 54 F.2d at 1032) (concluding
that certificate signed by attorney admitted to the court pro
hac

vice

did

not

meet

the

requirements

of

§

144).

Thus,

Plaintiff’s motions are considered as being brought under 28
U.S.C. § 455.
Section 455(a) requires a federal judge to recuse herself
“in any proceeding in which h[er] impartiality might reasonably

3

be questioned.”

28 U.S.C. § 445(a).

This issue is determined

by an objective standard:
a judge must disqualify h[er]self whenever
h[er]
impartiality
might
reasonably
be
questioned.
In
other
words,
disqualification is required if a reasonable
factual
basis
exists
for
doubting
the
judge’s
impartiality.
The
inquiry
is
whether a reasonable person would have a
reasonable basis for questioning the judge’s
impartiality, not whether the judge is in
fact impartial.
A presiding judge is not,
however, required to recuse h[er]self simply
because of unsupported, irrational or highly
tenuous speculation. Put simply, the proper
test to be applied is whether another with
knowledge of all of the circumstances might
reasonably
question
the
judge’s
impartiality.
United

States

(internal

v.

Cherry,

quotation

marks

330

F.3d

658,

and

citations

665

(4th

Cir.

omitted).

2003)

Plaintiff

presents no evidence that would cause a well-informed observer
to question the impartiality of the undersigned.
First, “[a]lleged bias and prejudice to be disqualifying
[under § 455] must stem from an extrajudicial source and result
in an opinion on the merits on some basis other than what the
judge learned from h[er] participation in the case.”
Martin, 733 F.2d 304, 308 (4th Cir. 1984).

Shaw v.

Indeed, on their own,

judicial rulings “almost never constitute a valid basis for a
bias or partiality motion.”

Liteky v. United States, 510 U.S.

540, 555 (1994).

4

Acknowledging this general rule, Plaintiff argues that the
undersigned’s judicial conduct in this case rises to the rare
level that requires recusal.

“[T]he only cases where courts

have granted recusal motions based on in-trial conduct tend to
involve singular and startling facts.”
F.3d 567, 573 (4th Cir. 2011).

Belue v. Leventhal, 640

Such cases include those where

the judge noted that German-Americans have hearts “reeking with
disloyalty”; where the judge made clear from the beginning of
the

case

that

his

object

was

to

“recover

funds

that

the

defendants had taken from the public”; and also where the judge
“directed profanities at Plaintiffs or Plaintiffs’ counsel over
fifteen times and perfused to allow the plaintiffs to present
argument

at

the

sanctions

hearing.”

internal quotation marks omitted).

Id.

(citiations

and

Finding in Defendants’ favor

on summary judgment and on motions to dismiss does not rise to
this level of misconduct.

Therefore, Plaintiff’s first motion

for recusal, which only examines what Plaintiff perceives to be
errors

and

inconsistencies

with

the

February

12

memorandum

opinion (ECF Nos. 27, 28), will be denied.
Plaintiff’s second motion for recusal points out that the
undersigned’s husband is a private mediator and surmises that
finding against Defendant Goldberg in this matter might create
precedent that would be harmful to his business.
Section

455(b)(5)(iii)

of

Title
5

28

requires

(ECF No. 33).
a

judge

to

disqualify herself if her spouse “[i]s known by the judge to
have an interest that could be substantially affected by the
outcome of the proceeding.”
For recusal to be proper under this section of the statute,
either the judge or her spouse must directly benefit from the
outcome of the case.

In re Drexel Burnham Lambert, Inc., 861

F.2d 1307, 1313 (2d Cir. 1988), cert. denied, 490 U.S. 1102
(1989) (noting that “where an interest is not direct, but is
remote,

contingent

interest

which

or

speculative,

reasonably

brings

it
into

is

not

the

question

a

kind

of

judge’s

partiality”); see also, e.g., Nachshin v. AOL, LLC, 663 F.3d
1034,

1041-42

(9th

Cir.

2011)

(applying

§

455(b)(5)(iii)

and

concluding that recusal was not warranted even though judge’s
husband

served

on

benefit from the

the

board

cy pres

of

an

organization

that

would

distribution proposed in the case,

because, as one of fifty volunteer board members, he received no
direct benefit from the distribution); Sensley v. Albritton, 385
F.3d 591, 600-01 (5th Cir. 2004) (finding that judge did not
abuse

discretion

by

refusing

to

recuse

himself

under

§

455(b)(5)(iii) where his wife worked as an Assistant District
Attorney in a different branch of District Attorney’s office
than the one representing the parties in the current case, and
she had no direct personal or financial relationship with the
parties); In re Kan. Pub. Emps. Ret. Sys., 85 F.3d 1353, 1364-65
6

(8th

Cir.

1996)

(finding

no

abuse

of

discretion

in

denying

recusal where, during pendency of litigation, judge’s daughter
accepted defendant’s employment offer to be associate attorney
in

defendant’s

firm);

CACI

Intern.,

Inc.

v.

Pentagen

Techs.

Intern., Ltd., 70 F.3d 111, at *6 (4th Cir. 1995) (unpublished
table decision) (affirming denial of defendant’s recusal motion
where judge’s husband had previously awarded $25,000 grant to
plaintiff and had interest in the general subject matter of the
pending case, because neither the judge nor her husband had any
interest that could be “substantially affected” by the outcome
of the case); Hunt v. Am. Bank & Trust of Baton Rouge, 783 F.2d
1011

(11th

acceptance

Cir.
of

1986)

(holding

employment

offer

that

from

a

law

judge’s
firm

law

clerk’s

representing

a

party before the judge did not require recusal because that
clerk was not participating in that specific case).
Accordingly,

recusal

is

not

required

where,

as

here,

a

judge’s spouse merely practices in the area of law covered in
the

case,

and

has

interest in the case.

no

other

personal

involvement

or

direct

“A judge is not required to abstain from

hearing an entire class of cases because his or her spouse, as
an

attorney,

participates

in

such

cases,

and

any

such

construction of 28 U.S.C. § 455 would quickly bring the judicial
business of the federal courts to a complete halt.”
A.W.

Chesterton,

Inc.,

No.

10-119,
7

2010

WL

Kuhlman v.

910481,

at

*1

(S.D.Ill. Mar. 9, 2010).

Therefore, because the undersigned’s

husband has no interest in the case, Plaintiff’s motions to
recuse will be denied.
III. Standard of Review
A motion for reconsideration filed within 28 days of the
underlying order is governed by Federal Rule of Civil Procedure
59(e).

Courts

have

recognized

three

limited

grounds

for

granting a motion for reconsideration pursuant to Federal Rule
of Civil Procedure 59(e):

(1) to accommodate an intervening

change in controlling law, (2) to account for new evidence not
available at trial, or (3) to correct clear error of law or
prevent manifest injustice.

See United States ex rel. Becker v.

Westinghouse Savannah River Co., 305 F.3d 284, 290 (4th Cir.
2002) (citing Pacific Ins. Co. v. Am. Nat’l Fire Ins. Co., 148
F.3d 396, 403 (4th
(2003).

Cir. 1998)),

cert. denied, 538 U.S. 1012

A Rule 59(e) motion “may not be used to relitigate old

matters, or to raise arguments or present evidence that could
have been raised prior to the entry of judgment.”
Co.,

148

F.3d

at

403

(quoting

11

Wright,

et

Pacific Ins.
al.,

Practice and Procedure § 2810.1, at 127–28 (2d ed. 1995)).

Federal
Where

a party presents newly discovered evidence in support of its
Rule 59(e) motion, it “must produce a legitimate justification
for not presenting the evidence during the earlier proceeding.”
Id. (quoting Small v. Hunt, 98 F.3d 789, 798 (4th Cir. 1996))
8

(internal marks omitted).

“In general, ‘reconsideration of a

judgment after its entry is an extraordinary remedy which should
be used sparingly.’”

Id. (quoting Wright, et al., supra, §

2810.1, at 124).
IV.

Analysis
Plaintiff has not sufficiently addressed any of the grounds

for reconsideration under Rule 59(e), nor does any appear to be
applicable.

Rather,

considered
motions.

and

he

rejected

mostly
by

the

rehashes

the

court

deciding

in

same

arguments
the

prior

See Sanders v. Prince George's Pub. Sch. Sys., No.

RWT-08-501, 2011 WL 4443441, at *1 (D.Md. Sept. 21, 2011) (a
motion

for

reconsideration

is

“not

the

proper

place

to

relitigate a case after the court has ruled against a party, as
mere

disagreement

with

a

granting such a request”).

court’s

rulings

will

not

support

He also raises a few new arguments

that were not raised earlier, but these arguments likewise do
not address the grounds for reconsideration under Rule 59(e).
Specifically, regarding claims on which summary judgment
was entered on the basis of collateral estoppel, Plaintiff reargues that:

(1) the issues were not actually litigated in

state

court

circuit

because

he

was

not

fully

allowed

to

introduce evidence and cross-examine witnesses; (2) that some of
the facts raised in his complaint here arose after the October
2009 hearing; (3) mental illness precluded him from effectively
9

litigating in state court; (4) Defendant Goldberg’s fraud and
destruction of evidence precluded judicial review of his claims;
(5) his fragile mental health prevented him from effectively
preparing

for

and

appealing

the

October

2009

hearing

and

resulting ruling;1 (6) he did not agree to be estopped from
litigating

these

issues

a

second

time;

and

(7)

he

did

not

actually present certain of his legal arguments during the oral
hearing

in

October

2009.

Regarding

the

claims

that

were

dismissed, Plaintiff re-argues that his intentional infliction
of

emotional

distress

claim

should

survive

because

Defendant

Goldberg exploited his position of power over Plaintiff, and
that the court’s conclusions of law regarding his Section 1983
claims are incorrect.

Plaintiff made all of these arguments in

his opposition papers to Defendants’ original motions, and they
are

no

more

availing

now.

Further,

Plaintiff

cites

to

no

authority to support that reconsideration is warranted on the

1

Plaintiff notes that “fuller procedural opportunities” are
available to him in federal court than were available in state
court.
He cites this as grounds for not applying collateral
estoppel.
The only difference in procedure that Plaintiff
argues is prejudicial, however, is the amount of time that he
would be afforded to prepare for litigation, and that during the
shorter, thirty-day window in which he could bring his claims to
state court, he was suffering from severe depression.
He does
not dispute that he actually filed briefs or presented arguments
at the hearing.
10

basis of these arguments and that the February 12, 2013 order
should be altered.
Plaintiff asserts one new argument against the application
of the collateral estoppel doctrine:
burden

of

persuasion

here,

he is faced with a lesser

making

inappropriate as a matter of law.

collateral

estoppel

Plaintiff also argues for the

first time that his fraud claim against Defendant Skok should
not

be

dismissed

disagreed
further

with

asserts

because

Ms.

Skok’s

that

if

Defendant
attorney
his

Goldberg
fee

arguments

never

actively

recommendation.2

He

fail,

be

he

should

permitted to amend his complaint on this claim of fraud.
A.

Plaintiff’s Burden of Persuasion

Citing
argues

that

the

Second

applying

the

Restatement
doctrine

of
of

Judgments,

collateral

Plaintiff

estoppel

is

inappropriate where he faced a higher burden of persuasion in
the previous proceeding.
28(4).

Restatement (Second) of Judgments §

He argues that before the circuit court, he was required

to prove that Defendant Goldberg manifestly disregarded the law.
This does not appear to be the case; Plaintiff was subject to
the same burden of persuasion before the circuit court as he is
before this court.

In Maryland, where, as here, a party to an

2

It is not clear what bearing this argument has on the
sufficiency of Plaintiff’s fraud claim against Defendant Skok,
and it does not demonstrate an error of law or manifest
injustice meriting reconsideration of the claim.
11

arbitration

agreement

Arbitration

Act

governed

challenges

the

by

the

validity

Maryland
of

the

Uniform

arbitration

agreement, the arbitrator is not afforded deference.

Stephen L.

Messersmith, Inc. v. Barclay Townhouse Assocs., 313 Md. 652,
659-661

(Md.

judicial

1988).

review,

Rather,

and
the

the

that

court,

agreement

“based

evidence,”

upon

construes

is

subject

its

to

independent

assessment

of

the

arbitration

agreement.

Id. at 663; see also Montgomery Cnty. v. Fraternal

Order of Police, Montgomery Cnty. Lodge 35, 427 Md. 561, 571
(2012) (noting that a circuit court, “when confronted with a
petition to either stay arbitration or vacate an award, . . .
‘engages

in

a

de

novo

review,

including

an

independent

assessment of the evidence.’”) (citations omitted).
The

circuit

construction
construing

of
that

court
the

did

not

arbitration

contract.

afford

Defendant

agreement

Accordingly,

any

Goldberg’s

deference

Plaintiff

was

when
not

subject to a higher burden of persuasion in the 2009 hearing,
and the application of collateral estoppel as to his claims
brought here was appropriate.
new

evidence

that

was

Plaintiff does not proffer any

previously

unavailable,

advance

any

intervening change in controlling law, or identify any clear
error

that

conclusion.

would

warrant

revising

the

court’s

earlier

Accordingly, Plaintiff’s motion for reconsideration

will be denied.
12

B.

Motion to Amend the Complaint

Federal

Rule

of

Civil

Procedure

15(a)(2)

provides

that

leave to amend a complaint should be freely given “when justice
so requires.”

Thus, “leave to amend should be denied only when

the amendment would be prejudicial to the opposing party, there
has been bad faith on the part of the moving party, or amendment
would

be

futile.”

BearingPoint,

Inc.,

Matrix
576

F.3d

Capital
172,

Mgmt.

193

(4th

Fund,
Cir.

LP

2009).

v.
An

amendment is futile if it would fail to withstand a motion to
dismiss.

See Perkins v. United States, 55 F.3d 910, 917 (4th

Cir. 1995).

Consequently, leave to amend should be denied if

the well-pleaded facts in the proposed new complaint do not
amount to a “showing” that the plaintiff is entitled to relief.
See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n. 3 (2007);
see also Ashcroft v. Iqbal, 556 U.S. 662 (2009) (explaining that
a “showing” is more than the “mere possibility of misconduct”).
In

seeking

leave

to

file

a

third

amended

complaint,

Plaintiff simply argues that his fraud claim against Defendant
Skok, as included in the second amended complaint, should not
have been dismissed.

Because, for the reasons discussed in the

memorandum opinion of February 12 (ECF No. 27), any amendment to
Plaintiff’s complaint would be futile, leave to file a third
amended complaint will be denied.

13

C.

Additional Motions

Also pending are Plaintiff’s motions for a hearing pursuant
to Federal Rule of Evidence 201(e), for judicial notice, and for
sanctions.

Because the documents referenced in Plaintiff’s Rule

201 motion and all five motions for judicial notice were already
considered

pursuant

to

Defendants’

summary

they are superfluous and will be denied.
sanctions,

filed

pursuant

to

judgment

motions,

Plaintiff’s motion for

Fed.R.Civ.P.

11,

will

also

be

denied.
“[T]he central purpose of Rule 11 is to deter baseless
filings

in

District

Court

and

thus

.

.

.

streamline

administration and procedure of the federal courts.”
Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990).

the

Cooter &

The decision

to impose Rule 11 sanctions is within the sound discretion of
the

district

court.

Ost–West–Handel

Bruno

Bischoff

Project Asia Line, Inc., 160 F.3d 170, 177 (4th

GMBH

v.

Cir. 1998).

Under Rule 11, by presenting a pleading or written motion to the
court,

an

person's
inquiry

attorney

knowledge,
reasonable

“is

certifying

information,
under

the

that

and

to

belief,

circumstances,”

the

best

of

the

after

an

pleading

or

formed
the

motion is, among other things, “warranted by existing law or by
a

nonfrivolous

argument

for

the

extension,

modification,

or

reversal of existing law or the establishment of new law” and

14

that

its

“allegations

and

evidentiary support .”

other

factual

contentions

have

Fed.R.Civ.P. 11(b).

There is a difference between a losing case and a frivolous
case:

“We have recognized that maintaining a legal position to

a court is only sanctionable when, in ‘applying a standard of
objective
attorney

reasonableness,
in

like

it

can

said

that

a

could

circumstances

be

not

have

believed

actions to be legally justified.’”

reasonable
his

Hunter v. Earthgrains Co.

Bakery, 281 F.3d 144, 153 (4th Cir. 2002) (quoting In re Sargent,
136 F.3d 349, 352 (4th Cir. 1998)).
“allegation

merely

must

be

Thus, to avoid sanctions, an

supported

by

some

evidence.”

Brubaker v. City of Richmond, 943 F.2d 1363, 1377 (4th Cir. 1991)
(emphasis in original).

Furthermore, “[m]otions for sanctions

are to be filed sparingly,” and “[t]he keynote is cooperation
and simple solutions, not paperwork and unnecessary expense to
clients.”

Thomas v. Treasury Mgmt. Ass’n, Inc., 158 F.R.D. 364,

366 (D.Md. 1994).
As

discussed

Defendants’
record.

in

positions

the
were

memorandum
well

opinion

taken

and

of

February

supported

by

12,
the

Defendants’ motions were granted, rendering sanctions

inappropriate.

At bottom, Plaintiff disagrees with Defendants’

representation of the facts of this case and is aggrieved by
this court’s rulings in Defendants’ favor.

15

This, however, is no

basis for imposing sanctions, and Plaintiff’s motion will be
denied.
V.

Conclusion
For

denied.

the

foregoing

reasons,

Plaintiff’s

motions

will

A separate Order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

16

be