MICROSOFT CORPORATION v. SOFTICLE.COM et al

Filing 228

LETTER ORDER/OPINION. Signed by Magistrate Judge Steven C. Mannion on 8/30/2018. (sm)

Case 2:16-cv-02762-MCA-SCM Document 228 Filed 08/30/18 Page 1 of 11 PageID: 2965

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

Chambers of

Martin Luther King Jr, Federal Bldg.
& U.S. Courthouse
50 Walnut Street
Newark, NJ 07102
[phone]

STEVEN C. MANNION
United States Magistrate Judge

August 30, 2018

LETTER ORDER/OPINION
Re:

D.E. 190; Motion for Recusal
Microsoft Corporation v. Softicle.com, et al.
Civil Action No. 16-cv-02762 (MCA)(SCM)

Dear Counsel:
Before the Court is Defendants Softicle.com and Aymen Abunamous’ (collectively
“Softicle”) motion for recusal. 1 Plaintiff Microsoft Corporation (“Microsoft”) opposed the
motion, 2 and Softicle did not file a reply. The Court has reviewed the parties’ respective
submissions and decides the motion without oral argument. For the reasons set forth herein,
Softicle’s motion for recusal is DENIED.
I.

BACKGROUND
Softicle supports its motion with the Certification of Defendant Abunamous. 3 The

Abunamous Certification alleges that the undersigned must recuse himself from this matter

1

28 U.S.C. §§ 144, 455(a); (ECF Docket Entry No. (“D.E.”) 190, Def.’s Mot. for Recusal).
Unless indicated otherwise, the Court will refer to documents by their docket entry number and
the page numbers assigned by the Electronic Case Filing System.

2

(D.E. 196, Pl.’s Opp’n).

3

(D.E. 190-2, Abunamous Certification).

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because “all meaningful decisions have been predetermined in favor of Microsoft.” 4 More
specifically, Softicle takes issue with: (1) the disposition of subpoenas served upon PayPal and
Bank of America in California; (2) Judge Arleo’s opinion regarding dismissal of some of
Microsoft’s claims; (3) Judge Arleo’s opinion regarding Softicle’s motion for reconsideration; (4)
the undersigned’s October 2017, Order to Show Cause; (5) pro hac vice counsel’s deposition of
Mr. Abunamous, and (6) the Court’s decisions regarding various discovery disputes.
II.

MAGISTRATE JUDGE AUTHORITY
Our jurisprudence authorizes magistrate judges to decide any non-dispositive motion 5 and

authorizes all judges to decide motions for their own recusal. 6 “[T]he mere filing of an affidavit
[of bias] does not automatically disqualify the judge. He has authority to decide whether the claim
of bias is legally sufficient.” 7 “Indeed, if the affidavit submitted is legally insufficient to compel
his disqualification, the judge has a duty to preside.” 8 Such decisions are subject to the abuse of
discretion standard. 9

4

(D.E. 190-2, Abunamous Certification, at ¶ 2).

5

28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72; In re U.S. Healthcare, 159 F.3d 142, 145 (3d Cir.
1998).
6

See, e.g., Craven v. Leach, No. 14-1860, 2015 WL 1274834, at *2 (D.N.J. Mar. 18, 2015); see
also In re Corrugated Container Antitrust Litig., 614 F.2d 958, 963 n. 9 (5th Cir. 1980).
7

Behr v. Mine Safety Appliance Co., 233 F.2d 371, 372 (3d Cir. 1956).

8

United States v. Dansker, 537 F.2d 40, 53 (3d Cir. 1976) (citing Simmons v. United States, 302
F.2d 71, 76 (3d Cir. 1962)).
9

Edelstein v. Wilentz, 812 F.2d 128, 130 (3d Cir. 1987).
2

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III.

LEGAL STANDARD AND DISCUSSION
Softicle seeks recusal pursuant to Sections 144 and 455(a). 10 Judges should not recuse

themselves from cases lightly. “If an affidavit of bias is legally insufficient to compel …
disqualification, the judge has a duty to preside.” 11 An affidavit “couched in generalities” that
fails “to recite specific acts” is insufficient “for a successful attack upon the qualifications of the
Judge to sit in the proceedings.” 12 “Rather, a trial judge need only recuse himself if he determines
that the facts alleged in the affidavit, taken as true, are such that they would convince a reasonable
man that he harbored a personal, as opposed to a judicial, bias against the movant.” 13
A. Section 144
Section 144 has procedural and substantive requirements as follows:
Whenever a party to any proceeding in a district court makes and
files a timely and 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, such judge shall proceed no further
therein, but another judge shall be assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the belief that
bias or prejudice exists, and shall be filed not less than ten days
before the beginning of the term at which the proceeding is to be
heard, or good cause shall be shown for failure to file it within such
time. A party may file only one such affidavit in any case. It shall
be accompanied by a certificate of counsel of record stating that it is
made in good faith. 14

10

28 U.S.C. §§ 144, 455(a).

11

Simmons, 302 F.2d at 76.

12

Id.

13

United States v. Thompson, 483 F.2d 527 (3d Cir. 1973).

14

28 U.S.C. § 144.
3

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Courts have noted that, because of the nature of Section 144 and the possibilities for abuse,
Court’s should strictly construe the statute’s procedural requirements. 15 Accordingly, failure to
comply with the procedural requirements of Section 144 provides grounds for denial of a motion
for recusal. 16
With those principles in mind, the Court denies Softicle’s motion as untimely. 17 A Section
144 disqualification application must be “filed not less than ten days before the beginning of the
term at which the proceeding is to be heard, or good cause shall be shown for failure to file it
within such time.” 18 The timeliness requirement is “[c]rucial to the integrity of the judicial
process” and is intended to ensure that a party is not simply filing the motion on the basis of
subsequent unfavorable rulings or treatment by the Court.” 19 “An affidavit is untimely when the
party significantly invokes participation by the court in pretrial motions or other judicial
proceedings between the time he first learned” of the alleged prejudice and the time he filed his
Section 144 motion. 20
Softicle’s affidavit vaguely alleges that it first learned of my alleged prejudice from a
number of my decisions and actions in 2017, 21 but did not file this application until May 18, 2018.

15

United States v. Clark, 398 F.Supp. 341, 362 (E.D. Pa. 1975); United States v.
Gilboy, 162 F. Supp. 384, 388-89 (M.D. Pa. 1958).
16

Concepcion v. Resnik, No. 05-1840, 2005 WL 1791699 at *2 (3d Cir. 2005).

17

28 U.S.C. § 144; see Shank v. Am. Motors Corp., 575 F. Supp. 125, 128 (E.D. Pa. 1983);
Sataki v. Broad. Bd. of Governors, 733 F. Supp. 2d 54, 60 (D.D.C. 2010).
18

28 U.S.C. § 144.

19

Sataki, 733 F. Supp. 2d at 60–61 (quoting S.E.C. v. Loving Spirit Found, 392 F.3d 486, 492
(D.C. Cir. 2004)).
20
21

Shank, 575 F. Supp. at 128 (citing Smith v. Danyo, 585 F.2d 83, 86 (3d Cir.1978)).
(D.E. 190-2, Abunamous Certification).
4

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That was almost two years after this case was reassigned to me for pretrial scheduling on June 15,
2016. Nevertheless, assuming that Softicle became aware of my alleged bias on the first of this
year, Softicle has participated in numerous conferences and filed several pretrial motions in that
intervening period. 22 Accordingly, because Softicle has affirmatively invoked the participation
of this Court in the intervening period, and has neither argued nor shown good cause for the delay,
the Court denies Softicle’s Section 144 motion as untimely.
In addition, Section 144 requires that a party's affidavit in support of a motion for
disqualification “be accompanied by a certificate of counsel of record stating that it is made in
good faith.” 23 “The certification requirement is not simply a pro forma procedural obligation but
is key to the integrity of the recusal process.” 24 Softicle’s counsel has not filed the required
certification.
Failure to comply with the procedural requirements of Section 144 provides grounds for
denial of a motion for disqualification. 25 Accordingly, the Court must deny Softicle’s Section 144
motion as procedurally defective.

22

Shank, 575 F. Supp. at 128 (citing Smith, 585 F.2d at 86).

23

28 U.S.C. § 144; Sataki, 733 F. Supp. 2d at 60.

24

Sataki, 733 F. Supp. 2d at 60.

25

Concepcion v. Resnik, 143 Fed. Appx. 422, 425 (3d Cir. 2005).
5

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B. Section 455
Absent evidence of actual bias, “[a] judge is required to recuse [only] where his or her
impartiality ‘might reasonably be questioned.’” 26 A litigant’s displeasure with a judge’s rulings is
not a basis for recusal. 27 “The test for recusal … is whether a reasonable person, with knowledge
of all the facts, would conclude that the judge's impartiality might reasonably be questioned.” 28
Softicle largely bases its allegations on its displeasure with various rulings in this case and
the Court’s perceived hostility towards their counsel. As several courts have held, rulings adverse
to a party may be properly the subject of appeal, not disqualification. 29 “[A]lleged bias stemming
from facts gleaned from the judicial proceeding will rarely be grounds for recusal.” 30
As the Supreme Court has held, “[j]udicial rulings alone almost never constitute a valid
basis for a bias or partiality motion.” 31 “Almost invariably, they are proper grounds for appeal, not
for recusal.” 32 Additionally, opinions the judge forms or expresses during the course of current or
prior proceedings do not constitute a basis for a bias or partiality motion unless “they display a

26

Securacomm Consulting, Inc. v. Securacom Inc., 224 F.3d 273, 278 (3d Cir. 2000) (quoting 28
U.S.C. § 455(a)).
27

In re TMI Litig., 193 F.3d 613, 728 (3d Cir. 1999); Jones v. Pittsburgh Nat'l Corp., 899 F.2d
1350, 1356 (3d Cir. 1990).
28

In re Kensington Intern. Ltd., 353 F.3d 211, 220 (3d Cir. 2003); Securacomm, 224 F.3d at 278
(quoting 28 U.S.C. § 455(a).
29
30

Liteky v. United States, 510 U.S. 540, 555-56 (1994).
Securacomm, 224 F.3d at 278 (citing United States v. Antar, 53 F.3d 568, 574 (3d Cir.1995)).

31

Liteky, 510 U.S. at 555-56.

32

Id.

6

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deep-seated favoritism or antagonism that would make fair judgment impossible.” 33 Therefore,
“[e]xpressions of impatience, dissatisfaction, annoyance, and even anger, that are within the
bounds of what imperfect men and women . . . sometimes display” are not grounds for recusal. 34
With those principles in mind, the Court finds that Softicle’s allegations fall woefully short
of the standard necessary to justify recusal. Softicle first alleges that the disposition of Microsoft’s
subpoenas to PayPal and Bank of America in California justifies the undersigned’s recusal. 35
However, as discussed in detail in the Court’s October 2, 2017, Opinion and Order, Softicle failed
to follow the proper procedure to quash the subpoenas. 36 The Federal Rules state that a party must
file motions to quash a subpoena in the “district where compliance is required.” 37 Accordingly, if
Softicle wished to quash the subpoena, they should have done so in California, rather than in this
Court. Softicle appealed that decision, 38 and on April 30, 2018, Judge Arleo affirmed the
undersigned’s decision. Counsel are charged with the responsibility of reading the docket.
Nonetheless, I suggested, on the record, that Softicle’s counsel review Judge Arleo’s recent
opinions, 39 but it appears that he declined to do so prior to filing this motion on May 18, 2018. 40

33

Id.

34

Id.

35

(D.E. 190-1, Def.’s Br., at 2-3)

36

(D.E. 69, Op., at 20).

37

Fed. R. Civ. P. 45(d)(3).

38

(D.E. 74, Appeal).

39

(D.E. 184, May 4 Hearing Tr., at 27:25–29:12 (referring to D.E. 171, 172, 173)).

40

(D.E. 190-1, Def.’s Br., at 4 (referring to D.E. 73 and D.E. 74 as still pending)).
7

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Softicle’s next allegation involves Judge Arleo’s Order dismissing its counterclaims
against Microsoft, and is similarly without merit in this context. Notwithstanding the merits of its
counterclaims and Judge Arleo’s dismissal thereof, Softicle’s complaints regarding this Order have
no bearing on the undersigned’s alleged bias. Motions to dismiss are the province of the district
judge, and therefore any opinion or order with regard thereto, is entirely out of the control of the
undersigned. Accordingly, this Order could not have been the result of any purported bias against
Softicle by me.
Next, Softicle takes issue with Judge Arleo’s denial of its Motion for Reconsideration. 41
That motion concerned Judge Arleo’s denial of Softicle’s Motion to Dismiss Microsoft’s claim for
contributory copyright infringement. Once again, Softicle’s arguments are misplaced. These
decisions could not have been the result of the undersigned’s alleged bias, because they were
entirely the prerogative of the district judge.
Moreover, Softicle argues that the undersigned’s October 2, 2017, Order to Show Cause42
shows bias and prejudice against Softicle. As set forth in more detail in that Opinion and Order,43
the Court issued this Order due to Softicle’s repeated failure to comply with the initial scheduling
order and subsequent orders. To the extent that Softicle argues that the Court erred in issuing this
Opinion, Judge Arleo affirmed this decision on April 30, 2018. 44

41

(D.E. 73, Mot. for Reconsideration).

42

(D.E. 69, Op.).

43

Id.

44

(D.E. 173, Order).
8

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Next, Softicle argues that the undersigned must recuse himself due to his denial of
Softicle’s motion to strike the appearance of pro hac vice counsel Katherine M. Dugdale. Softicle
took issue with, among other things, the fact that Ms. Dugdale took the deposition of Defendant
Abunamous without local counsel. 45 Softicle argues that the undersigned “summarily denied” 46 its
motion, but for the reasons set forth, at length, on the record on March 15, 2018, 47 Softicle’s
arguments are without merit. As discussed on the record, this Circuit’s case law does not resolve
the issue of whether pro hac vice counsel’s participation in a deposition constitutes an
“appearance,” but the New Jersey state court rules state that “an attorney admitted in another
jurisdiction shall not be deemed to be making an appearance in this State by reason of taking a
deposition.” 48 Accordingly, the undersigned’s refusal to strike Ms. Dugdale’s appearance is in
accordance with our jurisprudence and is not the result of any alleged bias.
Finally, Softicle argues that the undersigned’s decision to compel production of its credit
card processing records shows bias. Softicle alleges that the Court granted Microsoft’s motion to
compel “without addressing whether the data was relevant.” 49 Softicle fails to address the Court’s
supplementary order explaining, among other things, that “the Stripe records are relevant because
if Microsoft were to corroborate investigator transactions, it would tend to prove that Softicle
‘materially contributed to the infringement.’” 50

45

(D.E. 94, Def.’s Mot. to Strike).

46

(D.E. 190-1, Def.’s Br., at 6).

47

(D.E. 155, Tr.).

48

N.J. Ct. R. 1:21-1(b).

49

(D.E. 190-1, Def.’s Br., at 7-8).

50

(D.E. 167, Order, at 2).
9

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Indeed, Softicle’s brief incorrectly stated that several of the aforementioned motions and
appeals were still pending. 51 Defense Counsel owes a duty of candor to the Court 52 and
additionally, by submitting his papers, certified that his contentions have factual support. 53
Accordingly, the undersigned is deeply concerned with Defense Counsel’s failure to review or
correct the false statements with regard to allegedly pending motions and appeals. 54
Furthermore, as set forth above and in Judge Arleo’s opinions, Defense Counsel continues
to advance arguments which have no basis in the law and which have been repeatedly rejected by
the Court. This failure, not any purported bias by the undersigned, is the reason for these adverse
rulings.
Comments that Mr. Abunamous subjectively interpreted as hostile to him and his counsel
are likewise not a basis for disqualification. The Liteky Court specifically stated that “expressions
of impatience, dissatisfaction, annoyance, and even anger” 55 do not establish bias or partiality.
None of Softicle’s purported reasons manifest any “deep seated bias” that would render a fair
judgment impossible. 56 Accordingly, the motion for recusal is hereby DENIED.
An appropriate Order follows:

51

(D.E. 190-1, Def.’s Br., at 3-4).

52

N.J. Rules Prof’l Conduct R. 3.3.

53

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

54

It is worth noting that the undersigned explicitly encouraged Defense Counsel to review Judge
Arleo’s opinions on the record in athe May 4, 2018, telephone conference. See (D.E. 184, May 4
Tr., at 27:25-29:12).
55

Id. at 556.

56

Securacomm Consulting, Inc., 224 F.3d at 278.
10

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ORDER
IT IS on this Thursday, August 30, 2018,
ORDERED that Defendants Softicle.com and Mr. Abunamous’ motion for recusal (D.E. 190) is
DENIED.

8/30/2018 11:39:41 AM

Original: Clerk of the Court
Hon. Madeline Cox Arleo, U.S.D.J.
cc: All parties
File

11