Easton LLC v. Inc. Village of Muttontown

Filing 54

ORDER denying 48 Motion to Disqualify Judge: For the reasons contained in the attached Memorandum Opinion and Order, plaintiff's motion for recusal is denied in its entirety. So Ordered by Magistrate Judge E. Thomas Boyle on 3/15/2013. (Minerva, Deanna)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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EASTON LLC, doing business in New York as
SHILLELAGH HOLDINGS LLC,

Plaintiff,

-against-

MEMORANDUM
OPINION AND ORDER
CV 11-4791 (ETB)

INC. VILLAGE OF MUTTONTOWN,
Defendant.
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Before the court is the plaintiff’s motion for recusal, pursuant to 28 U.S.C. § 455(a).
Defendant opposes plaintiff’s application. For the following reasons, plaintiff’s motion is
denied.

FACTS
Plaintiff, Easton LLC (“Easton”), is a family-held limited liability company that owns a
100-plus acre parcel of unsubdivided land (the “Property”) in the defendant, the Incorporated
Village of Muttontown’s (the “Village”), three-acre residential zoning district. (Am. Compl. ¶
17.) The family members who make up Easton no longer reside on the Property. (Id. ¶ 16.)
Easton seeks to develop the Property into a large lot residential community composed of
minimum three-acre residential lots under the Village’s existing zoning regulations. (Id. ¶ 10.)
Familiarity with the Memorandum Opinion and Order of the undersigned, dated April 27, 2012,
as well as the summary order of the Court of Appeals, dated December 13, 2012, is presumed.

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Easton commenced the within action on October 3, 2011 and amended its Complaint on
December 18, 2011. The Amended Complaint was for a declaratory judgment to redress the
alleged violations of Easton’s Fifth and Fourteenth Amendment rights. Easton alleged that the
reasons given by the Village for the moratoria were “patently false, irrelevant and fraudulent”
and that the Village did nothing during the course of the two back-to-back moratoria to address
the problems alleged by the Village as reasons for their imposition. (Id. ¶¶ 11-12.) The
Amended Complaint alleged that the two moratoria, both on their face and as applied, violated
Easton’s due process and equal protection rights under the Fifth and Fourteenth Amendments
because: (1) the only reason to impose the moratoria was to devalue private property so that the
Village could acquire a parcel of land it was interested in for a lower price at a bankruptcy
auction; (2) the moratoria constituted a deprivation of property and liberty without due process of
law; (3) the moratoria constituted a deprivation of equal protection, as well as unlawful
discrimination, because they affected only a handful of the more than 1,000 landowners in the
Village; (4) the moratoria constituted an invalid exercise of police power by the Village; and (5)
the moratoria constituted a taking of property without just compensation. (Id. ¶ 62.)
While the within action was pending, however, the Village Trustees adopted a resolution
at a public meeting held on April 10, 2012, terminating the moratorium giving rise to this action,
effective immediately. Accordingly, there is no longer any impediment to Easton submitting its
subdivision application to the Village.
By Memorandum Opinion and Order dated April 27, 2012, the Court granted the
Village’s motion to dismiss for failure to state a federal claim and dismissed this action in its
entirety. Plaintiff appealed the Court’s decision to the Second Circuit, which, on December 13,
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2012, affirmed the dismissal of plaintiff’s federal claims. The Circuit vacated the dismissal,
however, with respect to plaintiff’s state law claims and remanded the action for the sole purpose
of further consideration of the state law claims.
After issuance of the mandate, the Court set a briefing schedule with respect to any
motion to dismiss the state law claims. The plaintiff now moves for my recusal on a myriad of
grounds, all of which are discussed infra.

DISCUSSION
I.

Legal Standard
28 U.S.C. § 455(a) provides that “[a]ny justice, judge, or magistrate . . . shall disqualify

himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C.
§ 455(a). It is well-established that a judge “has discretion to determine whether disqualification
is warranted in a given matter.” Leskinen v. Halsey, No. 12-cv-00623, 2013 U.S. Dist. LEXIS
31532, at *9 (E.D.N.Y. Mar. 5, 2013) (citing Sec. & Exch. Comm’n v. Drexel Burnham Lambert
Inc., 861 F.2d 1307, 1312 (2d Cir. 1988)). “When determining whether recusal is appropriate,
the trial judge must balance ‘the policy of promoting public confidence in the judiciary against
the possibility that those questioning his impartiality might be seeking to avoid the adverse
consequences of his presiding over their case.’” Leskinen, 2013 U.S. Dist. LEXIS 31532, at *910 (quoting Drexel Burnham Lambert, 861 F.2d at 1312).
The ultimate inquiry under Section 455 is whether “a reasonable person, knowing all the
facts, [would] conclude that the . . . judge’s impartiality could reasonably be questioned.” United
States v. Lovaglia, 954 F.2d 811, 815 (2d Cir. 1992). Disqualification is not required where a
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case involves “remote, contingent, indirect or speculative interests.” Id. Moreover, while
“[l]itgants are entitled to an unbiased judge,” they are not entitled to “a judge of their choosing.”
Drexel Burnham Lambert, 861 F.2d at 1312. “Where a litigant produce no evidence showing to
the contrary, a judge’s impartiality will be presumed.” Leskinen, 2013 U.S. Dist. LEXIS 31532,
at *10 (citing Wolfson v. Palmieri, 396 F.2d 121, 126 (2d Cir. 1968)).

II.

The Timeliness of the Motion
Although there is no express provision in 28 U.S.C. § 455 mandating that a party move

for recusal in a timely fashion, this requirement has been effectively read into the statute. See In
re IBM Corp., 618 F.2d 923, 932 (2d Cir. 1980). It is well-settled that a party seeking recusal
must raise its claim at the “earliest possible moment after obtaining knowledge of facts
demonstrating a basis for such a claim.” Apple v. Jewish Hosp. and Med. Ctr., 829 F.2d 326,
333 (2d Cir. 1987). Untimeliness in seeking recusal may constitute the basis for finding an
implied waiver of the right to seek it. See United States v. Bayless, 201 F.3d 116, 127 (2d Cir.
2000).
The decision whether to grant or deny a recusal motion is a matter confided to the court’s
discretion. See Apple, 829 F.2d at 333. A number of factors must be examined when assessing
the timeliness of a motion for recusal, including “whether: (1) the movant has participated in a
substantial manner in trial or pre-trial proceedings; (2) granting the motion would represent a
waste of judicial resources; (3) the motion was made after the entry of judgment; and (4) the
movant can demonstrate good cause for delay.” Id. at 334.
There are two underlying concerns that prompt this rule of timeliness. First, judicial
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resources should not be wasted. See id. A prompt application affords the judge an opportunity
to assess the merits of the application before taking any further steps that may be inappropriate to
take. See In re IBM Corp., 45 F.3d 641, 643 (2d Cir. 1995). Second, “a movant may not hold
back and wait, hedging its bets against the eventual outcome.” Apple, 829 F.2d at 334. A
prompt application for recusal avoids the risk that the party is holding back its application as a
“fall-back position” in the event there are adverse rulings on the pending matters. In re IBM, 45
F.3d at 643. This appears to be what happened here.
I have been assigned to this action since its commencement in 2011. The plaintiff and
defendant consented to have this case transferred to me for all purposes in February 2012, see 28
U.S.C. § 636(c), six months prior to the dismissal of this action. At no time during the action did
Easton raise any bias by me. Now, having lost the motion to dismiss, which was primarily
affirmed on appeal, this appears to be the last desperate attempt of a losing litigant and its
counsel.
Accordingly, the application for recusal, pursuant to 28 U.S.C. § 455(a), is denied for
untimeliness.

III.

The Merits of the Motion
Easton advances numerous grounds for the instant motion, each of which is devoid of any

merit.
A.

Timeliness of the Oral Argument Held on April 23, 2012
Easton first argues that although it moved for a preliminary injunction by order to

show cause on December 21, 2011, the Court delayed holding oral argument until April 23,
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2012, even though “time was of the essence.” (Pl. Mem. of Law 3.) While the dates cited by
Easton are correct, Easton overlooks the procedural history of this action.
Easton commenced this litigation on October 3, 2011, at which time it was assigned to
Judge Wexler, as the district judge, and myself, as the magistrate judge. Easton then filed its
order to show cause on December 21, 2011, which was signed by Judge Wexler. Briefing on
Easton’s motion for a preliminary injunction was not completed until January 19, 2012, by which
time a cross-motion to dismiss was also filed by the Village.
By Order dated February 16, 2012, Judge Wexler referred the motions for a preliminary
injunction and to dismiss to the undersigned. One day later, the parties consented to have this
action transferred to my jurisdiction for all purposes and the case was reassigned to the
undersigned on February 23, 2012.
By letter dated April 11, 2012, the Village advised the Court that it had lifted the
moratorium at issue in this action. Accordingly, Easton’s request for a preliminary injunction
became moot at that point. The Court held oral argument on April 23, 2012 with respect to all of
the “pending motions;” however, the only motion still in issue at that point was the Village’s
motion to dismiss since the preliminary relief requested by Easton was moot in light of the
Village’s termination of the moratorium.
As set forth above, the motions for a preliminary injunction and to dismiss were under
this Court’s jurisdiction for approximately two months prior to oral argument. Easton’s
argument based on delay is baseless and devoid of any merit.
B.

The In-Chambers Discussion Prior to the April 23, 2012 Oral Argument
Easton takes issue with the Court’s offer prior to oral argument - in chambers and
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off the record - to place this action on a suspension calendar to afford Easton time to file a
subdivision application with the Village (the moratorium having been lifted), which would
address the substantial ripeness issue which ultimately proved fatal to the plaintiff. It would also
afford the parties the opportunity to proceed without the litigation costs and expense of this
action. According to Easton, the Court “strongly suggest[ed]” that this action be administratively
closed, “providing no explanation whatsoever as to the purpose of such request.” (Pl. Mem. of
Law 3.) This was presented to the parties as an option requiring joint consent. Easton’s counsel
immediately rejected the Court’s offer and oral argument commenced. There was no coercion
involved. Easton’s counsel rejected the opportunity and oral argument then followed the brief
in-chambers conference.
“No good deed goes unpunished.” Although Easton now attempts to paint this offer as
the Court trying to “strong arm” it into something Easton did not want to do, the day after oral
argument was held, and apparently aware of the weaknesses in its case as a result of the oral
argument, Easton’s counsel wrote a letter to the Court “in response to Your Honor’s very helpful
suggestion that this case be placed on the suspense calender pending the continuing processing of
[Easton’s] subdivision application.” (Letter from Stephen P. Conlon dated Apr. 24, 2012.) By
that letter, Easton “accept[ed] [the Court’s] suggestion and . . . move[d] that the matter be placed
on the suspense calendar.” (Id.)
By letter dated April 25, 2012, the Village declined to consent to the transfer to the
suspension calendar. (Letter from Steven G. Leventhal dated Apr. 25, 2012.) Thereafter, by
letter dated April 26, 2012, Easton sought a second time to have this action placed on the
suspension calendar without the Village’s consent. (Letter from Stephen P. Conlon dated Apr.
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25, 2012.) No such relief was granted. The Court had informed the parties prior to oral
argument, it would only consider administrative closure with the consent of both parties.
There is no basis for Easton’s claim that the Court showed bias in offering to
administratively close this action. Both sides, in the Court’s view, stood to gain - ironically,
perhaps the plaintiff more than the Village.
C.

The Order of the Oral Argument and the Time Allotted Each Side
Easton’s third ground for recusal is that, during the oral argument on April 23,

2012, the Court instructed the Village to make its opening argument first, rather than Easton,
who, according to Easton, was “the primary movant,” and that “[d]espite the complexity of the
issues,” the Court “allotted plaintiff . . . only 15 minutes to argue and 5 minutes in rebuttal.”1 (Pl.
Mem. of Law 3.) What Easton conveniently overlooks, however, is that, although it made the
initial motion for a preliminary injunction, the Village’s termination of the moratorium prior to
the oral argument rendered Easton’s motion moot. Accordingly, the only motion at issue before
the Court was the Village’s motion to dismiss, which is why the Village was asked to proceed
first during the argument.
Moreover, as the Village points out in its opposition, each side was given approximately
fifteen minutes to argue and five minutes for rebuttal. (Def. Mem. of Law in Opp’n 4.) Easton
attempts to make it seem as if the Village was given ample time to argue, while Easton’s time
was cut drastically short, when in fact, both sides were given equal time for argument and
rebuttal. No favoritism was shown by the Court to either side. Nor was any bias. This ground is
1

Unless changed during my seventeen-year tenure on the bench, this is approximately
the time afforded generally for oral argument before the Supreme Court and the Second Circuit
Court of Appeals.
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devoid of any merit.
D.

My Prior Service as a Village Trustee
Easton’s next ground for recusal is that the undersigned failed to disclose until the

time of oral argument that I previously served as a village trustee. According to Easton, since the
within action is “essentially against village trustees,” a reasonable person might question the
impartiality of a former village trustee presiding over the case. (Pl. Mem. of Law 4.)
I served as village trustee in the Village of Old Field, in Suffolk County, in the 1990’s.
Upon appointment as a magistrate judge in 1995, I resigned that position. I never served as
village trustee for the Village of Muttontown (in Nassau County), the defendant herein, nor did I
have any dealings with the Village of Muttontown during my service as a village trustee.
Contrary to Easton’s naive assertion, the universe of village trustees on Long Island is not a small
and cohesive group. There are currently ninety-six incorporated villages on Long Island; sixtythree in Nassau County and thirty-three in Suffolk. See
http://en.wikipedia.org/wiki/List_of_villages_in_New_York (last visited Mar. 13, 2013).
Moreover, Easton has made absolutely no showing - other than sheer speculation - that my prior
service as a village trustee impacted my decision-making in this action. As stated above,
disqualification is not required where a case involves “remote, contingent, indirect or speculative
interests.” Lovaglia, 954 F.2d at 815.
E.

The Court’s Conduct
Easton also argues that the Court demonstrated bias by failing to mention either at

oral argument or in its Memorandum Opinion and Order: (1) Easton’s property rights; (2) the
duration of the moratoria; and (3) Easton’s “factual negation of each proffered reason for the
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moratoria as well as any other conceivable legitimate purpose for them.” (Pl. Mem. of Law 4.)
Easton is simply incorrect.
Both Easton’s property rights and the duration of the moratoria were discussed at length
in the “Facts” section of the Court’s Memorandum Opinion and Order dated April 27, 2012.
(See Mem. Op. and Order 1-4.) In addition, Point IV of the Memorandum Opinion and Order is
specifically titled “Facial Challenge to the Local Laws Enacting the Moratoria” and discusses, in
detail, Easton’s challenges to the Village’s stated purposes for the moratoria. (See id. at 16-18.)
Accordingly, this, too, is a baseless claim and is denied.
F.

Easton’s State Law Claims
Easton’s next basis for recusal is that the Court “failed . . . to respond to [its] state

law claims either at oral argument or in its Memorandum Opinion . . . .” (Pl. Mem. of Law 5.)
Regrettably, the Court did overlook discussion of Easton’s state law claims when rendering its
decision on the Village’s motion to dismiss. This is why the Circuit remanded the action.
However, the failure to address Easton’s state law claims had nothing to do with bias. Raising
this now as evidence of bias is frivolous.
Moreover, a review of Easton’s Amended Complaint demonstrates that its state law
claims are not separately parsed out but rather, are lumped together with its federal claims all in
one paragraph of the Amended Complaint. (See Am. Compl. ¶ 62.) Nor does Easton’s
Amended Complaint specifically cite to any New York statute or provision of the New York
Constitution claimed to be violated by the Village. (See id.) Instead, the only citations to law in
the Amended Complaint are to the Fifth and Fourteenth Amendments to the United States
Constitution. (See id.)
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G.

My Reapppointment as a Magistrate Judge
Easton next argues that I should have recused myself from this action because the

decision on the Village’s motion to dismiss was rendered during the time that I was seeking
reappointment as a magistrate judge.2 (Pl. Mem. of Law 5.) Easton cites no law addressing this
claim for recusal for an obvious reason. Its assertion is frivolous.
According to plaintiff, recusal was warranted due to the “significant political overtones”
of this action.3 (Id.) If there are “significant political overtones,” none are evident from the
papers, none were called to the Court’s attention and the Court is unaware of any. Land use
disputes, such as the instant case, are heard in the district court on a regular basis. Moreover,
even if this were the “significant” case that Easton makes it out to be, 28 U.S.C. Section 455 “is
not intended to be ‘used by judges to avoid sitting on difficult or controversial cases.’” Bayless,
201 F.3d at 127 (citing H.R. Rep. No. 93-1453, at 5, reprinted in 1974 U.S.C.C.A.N. at 6355).

2

My second eight-year term expired on July 31, 2011. The Memorandum Opinion and
Order dismissing Easton’s Amended Complaint is dated April 27, 2012. Thus, Easton’s counsel
refers to my “recall” application, see 28 U.S.C. § 636(h), submitted to the Circuit council and
granted on July 18, 2011. See Order of Recall dated July 18, 2011 on behalf of the Judicial
Council of the Second Circuit.
3

Easton goes on to state as follows:
Indeed such a disinterested observer might reasonably conclude that
such a judge was bias [sic] in favor of defendant Muttontown and
against plaintiff Easton. Even the Court of Appeals did not see the
reasoning behind Magistrate Boyle’s omission.

(Pl. Mem. of Law 5 (emphasis added.)) This last statement is puzzling. Nothing in the Second
Circuit opinion mentions my reappointment as a magistrate judge or otherwise addresses the
propriety of my ruling on this action during the pendency of the recall application to the Circuit
Council.
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H.

Easton’s Motion Papers
Easton’s final ground for recusal is that “[a]n appearance exists that [the Court]

did not even read plaintiff’s [motion] papers before rendering a decision” on the Village’s motion
to dismiss. (Pl. Mem. of Law 5.) According to Easton, a footnote in the Court’s decision
wherein the Court stated that Easton failed to address the ripeness issue raised by the Village,
demonstrates that the Court did not read Easton’s motion papers because the point headings
clearly address ripeness. (Id. at 5-6.)
The point heading in Easton’s brief made reference to the ripeness issue. (Pl. Mem. of
Law in Opp’n to Def. Cross Mot. for Dismissal 5). Nothing in the paragraphs that followed
developed the point heading or contradicted the Village’s arguments that Easton’s federal claims
were not ripe for adjudication. Thus, despite the point heading titled “Plaintiff’s Claims are Ripe
for Adjudication,” the entire argument that followed focused on the facial invalidity of the
moratoria. (Id. 5-8.) Contrary to Easton’s speculation, the Court reviewed all of the motion
papers prior to oral argument. As found in the Court’s Memorandum Opinion and Order, and
affirmed by the Court of Appeals, Easton’s claims are not ripe for adjudication.
Based on the foregoing, this basis for recusal is denied.

CONCLUSION
For the foregoing reasons, plaintiff’s motion for recusal is denied in its entirety.

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SO ORDERED:
Dated: Central Islip, New York
March 15, 2013
/s/ E. Thomas Boyle
E. THOMAS BOYLE
United States Magistrate Judge

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