ROBINSON v. HORIZON BLUE CROSS BLUE SHIELD OF NEW JERSEY et al

Filing 103

OPINION & ORDER denying 87 Motion for Recusal. Signed by Magistrate Judge Joseph A. Dickson on 2/24/15. (sr, )

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KENNETH E. ROBINSON JR.,

I

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

Plaintiff,

v.

J

HORIZON BLUE CROSS BLUE SHIELD I
OF NEW JERSEY, et al.,
'

Civil Action No.: 12-02981 (MCA-JAD)
OPINION AND ORDER

Defendants.
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JOSEPH A. DICKSON, U.S.M.J.
This matter comes before this Court on Plaintiff Kenneth E. Robinson's ("Plainti
motion, (Motion to Recuse, ECF No. 87), seeking the recusal of the undersigned from this ma
pursuant to 28 U.S.C. § 455. Pursuant to Federal Rule Civil Procedure 78, no oral argument
heard. After considering the submissions of the parties, and for good cause, this Court DENI S
Plaintiffs motion for the reasons herein expressed separately below.

I.

BACKGROUND

Plaintiff filed the instant lawsuit in this Court on May 18, 2012 alleging disparate/adv
treatment on the basis of race and sex, retaliation, wrongful termination, intentional infliction
emotional distress, fraud/deceit, breach of fiduciary duty, and negligent hiring, supervision,
training. (Complaint, ECF No. 1). The matter was reassigned to the undersigned on Septem
13, 2013. (See Docket Entry on September 13, 2013). The Court held an in person sta s
conference on November 18, 2013. (See Minute Entry on November 18, 2013). On Decem

23, 2013 this Court issued an Opinion on the properly filed pending Motions, 1 (ECF No. 73),
entered an Order on December 26, 2013. (ECF No.74). Plaintiff appealed this Court's decis" n
on January 9, 2014. (ECF No. 76). After having considered the parties' submissions, Judge Sa s
affirmed this Court's Opinion and Order on July 21, 2014. (ECF Nos. 80 and 81). On Septem r
9, 2014 this Court scheduled an in person conference on October 9, 2014. (ECF No. 82).
October 9, 2014 Plaintiff filed, what appears to be, his personal notes, requesting that the ma
be referred to another Magistrate Judge. (ECF No. 83).
On or about October 27, 2014, Plaintiff, pursuant to 28 U.S.C. §§ 455(a) and (b), filed
instant motion seeking the recusal of the undersigned from this matter. Specifically, Plain ff
contends disqualification pursuant to 28 U.S.C. §455(a) is warranted because:
... [the undersigned's] utterances and conduct seemed to signal a disdain for
Plaintiff, and a deep seeded favoritism towards Defendants' Counsel, which have
made Plaintiff deeply concerned, and genuinely and reasonably question his
impartiality to the extent that Plaintiff reasonably questions whether Magistrate
Dickson will adjudicate this lawsuit in a fair and just manner.
(Motion to Recuse, ECF No. 87 at 4).
Plaintiff offers four examples he claims demonstrate the undersigned's bias: (1) my alleged x
parte communications with Defendants' Counsel prior to the start of the in-person sta s
conference held on November 18, 2013; (2) my alleged admission, during the in-person sta s
conference held on October 09, 2014, of failing to become acquainted with all of the filings in

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instant matter when it was transferred from Magistrate Mannion to myself; (3) at that s
conference, my alleged "coaching" of Defendants' Counsel to file a dispositive motion; and

)

my allegedly biased decision in allowing Defendants' Counsel to file a response to Plainti

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Defendants' Motions to Compel, Plaintiff's Motion to Compel, and Defendants' CrossMotion for a Protective Order. (ECF Nos. 48, 49, and 53).
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submission, while telling Plaintiff it was not necessary to file a reply to Defendants' Counse s
response.
Moreover, Plaintiff argues in the alternative, that I should be disqualified from this acti n
pursuant to 28 U.S.C. §455(b) because I have "served as a lawyer in the matter in controversy.. "
(Id. at 8). Specifically, Plaintiff points to my alleged employment as a management-side litigat ,
and argues "[I]t is unfathomable to believe that he doesn't retain a bias against a plaintiff, and
management, in employment discrimination cases."

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ilib).

On or about November 11, 2014, Defendants filed an opposition to Plaintiff's moti n
seeking the undersigned's recusal, (ECF No. 88). Defendants' opposition emphasizes that

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undersigned has not demonstrated any bias towards either party. Instead, Defendants characte · e
Plaintiff's motion as "the latest effort by Plaintiff to refuse to accept decisions with which e
disagrees ..." (Id. at 2).
On or about November 14, 2014, Plaintiff filed a reply to Defendants' opposition, (E
No. 89). In summary, Plaintiff argues that "[T]he merits of Plaintiff's Motion for Recusal sh
that, despite Counsel's strident defense of Magistrate Dickson, Magistrate Dickson's impartial y
and appearance ofbias are reasonably questioned, and he should recuse himself or be disqualifie "
(Id. at 9).

II.

LEGAL STANDARD

Section 455(a) states that a judge should recuse himself if the judge's "impartiality mi

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reasonably be questioned." 28 U.S.C. § 455(a). Under Section 455(a), "the test that applies s
'whether a reasonable person, with knowledge of all the facts, would conclude that the judg 's
impartiality might reasonably be questioned.'" Meza-Role v. Partyka, No. 11-2307, 2011

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2579884, at *2, fn. 1 (D.N.J. June 27, 2011) (citing In re: Kensington Int'l Ltd., 368 F.3d 289, 3 1
(3d Cir.2004)); see also Jones, 899 F .2d at 1356 ("Under this section a judge must consider whet
a reasonable person knowing all the circumstances would harbor doubts concerning the judg 's
impartiality."). "This is an objective inquiry that considers not only whether a judge is actua y
impartial but whether there is an appearance of impartiality." Meza-Role, 2011 WL 2579884, t
*2, fn. 1 (citing In re: Community Bank of Northern Virginia, 418 F.3d 277, 320 (3d Cir.200
Moreover, "[T]he test for disqualification is objective, not subjective. It only matters whether

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judge reasonably appears to be biased." Liteky v. U.S., 510 U.S. 540, 548, 114 S.Ct. 1147, 1 7
L.Ed.2d 474 (1994).
In addition to § 455(a), the present motion to recuse is also brought under § 455(b) wh' h
provides, in pertinent part, as follows:
Any justice, judge, or magistrate of the United States shall also disqualify himself
in the following circumstances:
(2) Where in private practice he served as lawyer in the matter in controversy, or a
lawyer with whom he previously practiced law served during such association as a
lawyer concerning the matter, or the judge or such lawyer has been a material
witness concerning it ....
Thus, based on the plain language of§ 455(b), it is clear that "disqualification is warranted
only where the judge, while a lawyer in private practice, represented or practiced with a
lawyer who represented a client concerning the matter in controversy." § 3549 Appearance
of Bias, Prejudice, or Partiality, 13D Fed. Prac. & Proc. Juris.§ 3549 (3d ed.).
Additionally, only extrajudicial bias requires disqualification. Johnson v. Trueblood, 629 F. d
287, 290-91 (3d Cir.1980). '"Extrajudicial bias' refers to a bias that is not derived from
evidence or conduct of the parties that the judge observes in the course of the proceedings." I
see also Meza-Role, 2011 WL 2579884, at *2 (stating that a party "generally must show thats h

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bias or prejudice is grounded in extrajudicial sources, such as personal animus, rather than judic
actions that can be corrected on appeal"); Carter, 2011 WL 5864083, at * 11 ("The alleg
prejudice usually obtains from an extrajudicial source; a judge's prior adverse ruling alone is
sufficient cause for recusal."). "In the absence of extrajudicial bias, a party seeking recusal m
show that a judge has a 'deep-seated and unequivocal antagonism that would render fair judgm
impossible' to obtain recusal." Meza-Role, 2011 WL 2579884, at *2 (citing Litek v. Uni
States, 510 U.S. 540, 555-56, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) ("opinions formed by

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judge on the basis of facts introduced or events occurring in the course of the current proceedin ,
or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they <lisp y
a deep-seated favoritism or antagonism that would make fair judgment impossible")).

III.

ANALYSIS AND DISCUSSION
A. Recusal under 28 U.S.C. §455(a)
In the instant motion, Plaintiff seeks recusal pursuant to 28 U.S.C. § 455(a), which provi

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that "any justice, judge, or magistrate judge of the United States shall disqualify himself in
proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a).
It is well established pursuant to the case law, that mere disagreement with prior rulin s,

does not warrant recusal. Liteky, 510 U.S. at 555; Jones v. Pittsburgh Nat'l Corp., 899 F
1350, 1357 (3d Cir. 1990). In fact, the Supreme Court has explained that the proper relief

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a party in disagreement with a judge's ruling is an appeal, rather than a motion for recu
Liteky, 510 U.S. at 555. Here, Plaintiff appealed my Opinion, (December 23, 2013 Opini

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ECF No. 73), and Order, (December 26, 2013 Order, ECF No. 74), granting Defend
Motion for a Protective Order and denying Plaintiffs Motion to Compel, to District Ju

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Esther Salas. Upon review of Plaintiffs objections, Judge Salas affirmed my Opinion

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Order. See ECF Nos. 80-81. Plaintiff, however, did not stop there and upon the case be· g
reassigned from District Judge Salas to District Judge Arleo, sought, once again, the rever al
in its entirety, of my rulings, as well as Judge Salas's affirmation thereof. (ECF No. 91- ).
Judge Arleo issued an Order denying Plaintiffs request with prejudice on January 20, 20 5,
(ECF No. 94).
Plaintiffs motion expresses nothing more than disagreement with this Court's prior ruli

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and therefore does not form the basis of recusal. See Avila v. New Jersey, No. CIV. A.
0779 (JAP), 2013 WL 4597096, at *3 (D.N.J. Aug. 29, 2013) ("an adverse decision, even i
is adverse on all issues raised, is not evidence of bias, especially when it is supported by

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law and facts."); see also Bolick v. Pennsylvania, 2005 WL 3234630, *2 (E.D.Pa. Nov. 0,
2005) ("The undersigned district judge cannot be disqualified under 28 U.S. C. § 45 5(a) me
because [plaintiff] disagrees with his decision."). In fact, during the October 09, 2014
person status conference, Plaintiff, himself, admittedly stated, "Your Honor, I don't belie

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have grounds. I can't just - and I've read the rules and I know that I just can't ask to swi
judges, because I disagreed with your ruling." See Transcript of October 09, 2014 St

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Conference, at 4.
I will now address each individual allegation of impartiality raised by the Plaintiff
explain why they fail to provide evidence of "deep-seated and unequivocal antagonism
would render fair judgment impossible." Liteky, 510 U.S. at 555.
1. Alleged Ex Parte Communication with Defendants' Counsel

Plaintiff contends that my decision to meet privately with Defendants' Counsel prior to
start of the in-person status conference held on November 18, 2013, and not meet privately

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Plaintiff, evidences a bias in favor of Defendants' Counsel. Quoting Canon 1.4 and 4.4 of

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"Code of Conduct for U.S. District Judges" in his papers, (Plaintiff's Reply, ECF No. 89 at
Plaintiff implies that ex parte contacts in themselves cause a judge's impartiality to be reasona
questioned. However, based on a review of the relevant case law in which ex parte discussi

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were at issue, "courts ordering recusal examined the qualitative circumstances of the contacts
their consequences in making their decisions." In re Kensington Intern. Ltd., 368 F. 3d 289 (200
Here, as set forth by Defendants', (Defendants' Brief, ECF No. 88 at 2), I merely inquired i o
Defendants' willingness to discuss settlement. As all parties had discussed settlement w
Magistrate Judge Mannion prior to the case being reassigned to the undersigned, I find the b
exchange I had with Defendants' Counsel no different than any previous settlement discussi

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that the parties had with Judge Mannion or any settlement discussions I have with nearly ev
party that has appeared in cases assigned to me. It is clear that there is nothing about th e
communications that was improper or that warrants recusal.
2. Alleged Admission of Being Unacquainted with the Instant Case
Next, Plaintiff argues that "[A]t the beginning of the 2nd In-Person Status Conference set y
Magistrate Dickson (DE 82), he apologized for not having read or becoming acquainted with 11
of the filings in this case when the case was transferred to him from Magistrate Mannion." (Mo ti n
to Recuse, ECF No. 87 at 6). A review of the Transcript from the October 09, 2014 sta s
conference, provides that I explained the following to both parties:
Excuse me. And the first thing I want to raise is the fact that it was brought to my
attention, maybe by one of the - one of you - one of the litigants. And I will tell
you, we just missed it. This case was transferred to me, and prior to the date it was
transferred, Mr. Robinson filed a motion to amend the complaint. The problem I
had in missing this, in my defense, is that there's no docket, we had no idea there
was a pending motion ... I just wanted to alert the parties that I now have it in front
of me and I will move on it as quickly as I can get it.

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October 09, 2014 In-person Status Conference Transcript, at 3-4.
Regardless, Plaintiffs argument, even iftaken as true, in no way evinces impartiality on
part, nor that I harbor "disdain for Plaintiff, and deep seeded favoritism towards Defendan '
Counsel." See Motion to Recuse, ECF No. 87 at 4. In fact, my decision to consider Plainti

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improperly filed "motion" may indicate the opposite.2
3. The Undersigned's Alleged Coaching of Defendants' Counsel
The Plaintiffs next proffered reason that he argues warrants recusal, also took place at

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October 09, 2014 in-person status conference held before the undersigned. Plaintiff alleges

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following:
At the end of the 2nd In-person Status Conference, Magistrate Dickson asked
Defendants' Counsel whether or not he was going to "file a dispositive motion."
As a seeming afterthought, he advised Plaintiff that he, too, could file a dispositive
motion regarding liability. Plaintiff interpreted this question to Counsel as unfair
coaching.
See Motion to Recuse, ECF No. 87 at 6.
Recognizing that it is routine for defendants in such actions seek leave to move for
summary judgment, 3 I asked Defendants' Counsel's intention in order to facilitate the
management of the case. 4 Moreover, Defendants' Counsel also points out that "at prior

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Plaintiff failed to file a Notice of Motion. As a result, the Court's Electronic Filing System d
not indicate that the motion was pending before the Court.
3
"Most employers' counsel say ... that they intend to file a "Rule 56" motion if the case
does not settle; and ... a large number of employers do so. By contrast, practically no
plaintiffs in employment cases make such motions." Vivian Berger et. al., Summary
Judgment Benchmarks for Settling Employment Discrimination Lawsuits, 23 Hofstra Lab.
& Emp. L.J. 45, 48 (2005). Such is this Court's experience as well.
4

"Rather, federal judges now take control of their cases from the start. The process of taking
control typically begins with the judge issuing a case-management order that sets a detailed
schedule based on the particular needs of the case. As the case goes forward, the federal judge
can continue to exercise control by, among other things, closely managing the scope, timing,
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conferences, Defendants fully indicated their intent to file their motion for summary
judgment." (Defs' Opp'n, ECF No. 88 at 2).

As such, Plaintiffs contention that the

undersigned unfairly "coached" Defendants' Counsel is objectively without merit.

4. Defendants Requested to Respond - Plaintiff is Not Required to Respond
Plaintiffs final issue is that the undersigned ordered Defendants to respond to
Plaintiffs "Oral Notes," (ECF No. 83), which essentially outlined discovery disputes, but
did not require Plaintiff to respond to Defendants' response. The undersigned's decision
to allow Defendants an opportunity to respond to Plaintiffs "Oral Notes" does not exhibit
bias. See Karakozova v. Univ. of Pittsburgh, No. 09CV0458, 2010 WL 2804518, at *6
(W.D. Pa. July 15, 2010) (court's decision to allow defendant an opportunity to respond to
plaintiffs proposed clarifications did not exhibit bias). The Court requested a response
from Defendants because it is my practice not to rule on issues until I have heard from both
parties. Furthermore, there is no automatic right to a reply in a discovery dispute. See
Local Civil Rule 3 7 .1 (a)( 1) (reply papers are not permitted without the express permission
of the magistrate judge).

B. Recusal under 28 U.S.C. §455(b)(2)
Next, the Court examines the Plaintiffs contention that because the undersigned w s
previously in the practice of employment law with a management-side firm, 28 U.S.C. §
455(b)(2) requires my disqualification. Specifically, Plaintiff argues "[P]rior to

becomin~

a

magistrate judge in Federal District Court, Judge Dickson was employed as a managemet -

sequence of discovery and dispositive motions." Steven S. Gensler, Judicial Case Mana2ement
Caught in the Crossfire, 60 Duke L.J. 669, 670-71 (2010).
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side litigator associate of Wolff & Samson PC for almost thirty (30) years. It is unfathoma le
to believe that he doesn't retain a bias against a plaintiff, and for management, in employm
discrimination cases." (Motion to Recuse, ECF No. 87). 5
Pursuant to §455(b)(2), a judge must recuse herself where "in private practice [the jud
served as lawyer in the matter in controversy, or a lawyer with whom [the judge] previou
practiced law served during such association as a lawyer concerning the matter, or the ju e
or such lawyer has been a material witness concerning it." 28 U.S.C. §455(b)(2). This secti

,

however, is not applicable to the case before the Court. The record clearly demonstrates t at
the undersigned never served as a lawyer or a material witness concerning the matter in iss e.
The undersigned's previous employment as a practicing attorney certainly did not cone
the matter in issue. To hold that the current action is the same "matter of controversy" un r
§455(b)(2) would suggest that the undersigned should be precluded from presiding over
kind of employment law case. This, of course, is not the intent of the statute, and therefore

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Court finds that recusal is not warranted under Section 455(b)(2).
Moreover, viewing this motion from a practical standpoint, I note that persons selecte

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serve as United States Magistrate Judges all take the bench with certain experiences
backgrounds which hopefully help provide experiential guidance in the matters before th
In fact, much of my time in employment related cases in private practice was spent n
representing plaintiffs. As such, it is a bit ironic that Plaintiff requests that I recuse mysel n
this matter due to my background in employment law.

In fact, the Court of Appeals n

Cipollone, explains the conundrum that would occur if Judges were to disqualify themsel
for having too much knowledge of issues before them.

5

As a matter of fact, I only worked at Wolff & Samson for about 5 years.
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Cipollone does not assert that Judge Hunter has knowledge of evidentiary facts. If
Judges could be disqualified because their background in the practice of law gave
them knowledge of the legal issues which might be presented in cases coming
before them, then only the least informed and worst-prepared lawyers could be
appointed to the bench.
Cipollone v. Liggett Gm., Inc., 802 F.2d 659-60(3d Cir. 1986).
Furthermore, upon review of the relevant case law, Courts have generally held that ex

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judicial knowledge gained through prior positions does not provide a requisite reason

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disqualification. Laird, 409 U.S. at 835, 93 S.Ct. 7 ("Proof that a Justice's mind at the time e
joined the Court was a complete tabula rasa in the area of constitutional adjudication would e
evidence oflack of qualification, not lack of bias."); United States v. Voccola, 99 F.3d 37, 4 43 (1st Cir.1996) (judge's participation in a commission investigating fraud in financ
institutions did not mandate recusal in case where defendant was accused of such fraud); I
v. Diamond Shamrock Chems. Co., 996 F.2d 1425, 1438-39 (2d Cir.1993) (fact that judge
the manager of a settlement fund, the validity of which was at issue in the litigation, did
mandate recusal); Schurz Communications, Inc. v. Fed. Communications Comm'n, 982 F. d
1057, 1061 (7th Cir.1992) (judge not required to recuse himself where, as law professor, e
had given an affidavit in a previous case concerning the same general question at issue in c e
before him as judge); United States v. Glick, 946 F.2d 335, 336-37 (4th Cir.1991) (fact

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judge was Chairman of the United States Sentencing Commission does not preclude jud e
from hearing case in which sentencing guidelines were at issue); United States v. Payne, 9 4
F.2d 1458, 1476-77 (9th Cir.1991) (recusal not required where judge had previously se
on Attorney General's Commission on Pornography and case before him involved sexual ab e
of child); In re Wyoming Tight Sands Antitrust Cases, 726 F.Supp. 288, 291-92 (D.Kan.19
(holding that judge's previous testimony before the Federal Power Commission did

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mandate recusal in case involving similar issue on which judge testified). Indeed, "Co

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have uniformly rejected the notion that a judge's previous advocacy for a legal, constitutio
or policy position is a bar to adjudicating a case, even when that position is directly implica
in the case before the court." Carter v. West Pub. Co., 1999 WL 994997, *9 (11th Cir.199
Therefore, I find no reason why Plaintiff should think the undersigned is "tainted agai st
plaintiffs in employment discrimination cases." As such this Court concludes that the rec d
is devoid of any facts that objectively indicate a bias against the Plaintiff.

IV.

CONCLUSION

Based on the reasons set forth above, I will not recuse myself from this matter. A
careful consideration of Plaintiff's submissions, there are no facts from which a reasona e
person with knowledge of all the facts would find that the impartiality of the undersigned mi
reasonably be questioned. Accordingly, Plaintiffs motion seeking recusal of the undersign ,
(ECF No. 87), is hereby DENIED.

cc.

Hon. Madeline Cox Arleo, U.S.D.J.

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