Hart v. Penske Truck Leasing Company et al

Filing 73

ORDER denying 70 Motion for Recusal.. Signed by Judge S. Thomas Anderson on 7/25/2013. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

DENNIS HART,

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Plaintiff,
v.
PENSKE TRUCK LEASING COMPANY,
REPUBLIC PARKING SYSTEM, INC.
and LARRY CULLEN (individually),
Defendants.

No. 09-2108-STA-tmp

ORDER DENYING MOTION TO RECUSE
ORDER DENYING REQUEST FOR SANCTIONS

Before the Court is Plaintiff Dennis Hart’s (“Hart”) Motion to Recuse (D.E. # 70) filed
June 21, 2013. Defendant Penske Truck Leasing Company (“Penske”) filed a Response (D.E. #
71) on June 27, 2013, arguing the Court should deny Hart’s Motion to Recuse and should impose
sanctions against Hart for failure to comply with the Court’s orders taxing costs and to engage in
post-judgment discovery. For the reasons stated herein, the Court DENIES Hart’s Motion to
Recuse and DENIES Penske’s request for sanctions.
BACKGROUND
Hart initiated this case on February 24, 2009, alleging causes of action under Title VII, 42
U.S.C. § 1981, the Tennessee Human Rights Act, Tenn. Code Ann. § 47-50-109, and tortious
interference with contract against Penske, Republic Parking System, Inc. (“Republic”) and Larry
Cullen (“Cullen”). (Complaint, D.E. # 1). Hart voluntarily dismissed his claims against
Republic and Cullen on July 15, 2010. (Stipulation of Dismissal, D.E. # 30). The Court granted

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summary judgment in Penske’s favor on the remainder of Hart’s claims on August 13, 2010.
(Order Granting S.J., D.E. # 43). Hart appealed the Court’s Order Granting Summary Judgment
to the Sixth Circuit Court of Appeals on September 13, 2010. (Notice of Appeal, D.E. # 46).
The Sixth Circuit Court of Appeals upheld the Court’s grant of summary judgment on February
1, 2012. (Sixth Circuit Order, D.E. # 54). Hart then filed a petition for writ of certiorari in the
United States Supreme Court on June 30, 2012. (Notice from Supreme Court, D.E. # 56). On
November 26, 2012, the Supreme Court denied Hart’s petition for writ of certiorari, ending
Hart’s appeal process. (Notice from Supreme Court, D.E. # 57).
On November 17, 2010, during the pendency of Hart’s appeal to the Sixth Circuit, the
Clerk of Court for the Western District of Tennessee entered an order taxing Penske’s costs to
Hart for $4,934.65. (Order Taxing Costs, D.E. # 53). Hart did not appeal this order. On May 6,
2013, Penske filed a motion to compel post-judgment discovery. (Motion to Compel, D.E. # 60).
The Court referred this motion to the United States Magistrate Judge for determination. (Order
of Referral, D.E. # 63). Hart did not respond to Penske’s motion to compel, and the magistrate
judge issued an order directing Hart to satisfy Penske’s post-judgment discovery requests.
(Order Granting Motion to Compel, D.E. # 64). Pursuant to Rule 37(a)(5)(A), the magistrate
judge also issued a report and recommendation that the Court sanction Hart $1,000.00 in
attorney’s fees for his failure to participate in post-judgment discovery. (Report and
Recommendation, D.E. # 65). On June 13, 2013, Hart filed objections to the magistrate judge’s
report and recommendation, arguing he never received Penske’s discovery requests and that he
was attempting to work out payment arrangements on the order taxing costs. (Response to
Report and Recommendation, D.E. # 66). On de novo review of the record before the
magistrate judge, the Court adopted the magistrate judge’s report and recommendation, ordering

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Hart to pay $1,000.00 in attorney’s fees pursuant to Rule 37(a)(5)(A). (Order Adopting Report
and Recommendation, D.E. # 68).
Also on June 13, 2013, Hart filed a motion requesting the court enjoin Penske’s attempts
to engage in post-judgment discovery. (Motion for Injunction, D.E. # 67). Finding there was no
legal basis for Hart’s request, the Court denied Hart’s motion for an injunction. (Order Denying
Motion for Injunction, D.E. # 69).
Hart now asks the undersigned to recuse himself from this case, claiming a reasonable
person would question the undersigned’s impartiality. In support, Hart argues the undersigned
has ruled against him on Penske’s motion for summary judgment, the undersigned has ruled
against him on Penske’s motion to compel, and that Hart has filed a complaint against the
undersigned with the United States Department of Justice.1
STANDARD OF REVIEW
“Any justice, judge, or magistrate judge of the United States shall disqualify himself in
any proceeding in which his impartiality might reasonably be questioned.”2 “[A] judge must
recuse [him]self if a reasonable, objective person, knowing all of the circumstances, would have
questioned the judge’s impartiality.”3
If it would appear to a reasonable person that a judge has knowledge of facts that
would give him an interest in the litigation then an appearance of partiality is
created even though no actual partiality exists because the judge does not recall

1

Hart also cites Tennessee Supreme Court Rule 10B and ABA Canons of Professional
Ethics 1, 2, 3, and 6. However, the cited rules do not apply under these circumstances.
2

28 U.S.C. § 455.

3

Hughes v. United States, 899 F.2d 1495, 1501 (6th Cir. 1990) (citing Lijeberg v. Health
Servs. Acquisition Corp., 486 U.S. 847 (1988); United States v. Story, 716 F.2d 1088, 1090-91
(6th Cir. 1983)).
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the facts, because the judge actually has no interest in the case or because the
judge is pure in heart and incorruptible.4
ANALYSIS
As a preliminary matter, Hart’s motion is procedurally deficient as being untimely as a
motion under 28 U.S.C. § 144. “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, such judge shall proceed no further therein[.]”5 “The affidavit . . .
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.”6 Ignoring the fact
Hart’s motion does not contain an affidavit, Hart filed this motion nearly three years after the
undersigned became presiding judge for this case. Hart makes no attempt in his motion to
explain his failure to ask for recusal of the undersigned in a timely manner. Therefore, the
undersigned DENIES Hart’s Motion to Recuse under 28 U.S.C. § 144.
However, because Hart also moves for recusal under 28 U.S.C. 455, the undersigned will
discuss the merits of his motion to recuse. Under 28 U.S.C. § 455, no motion or affidavit is
required, because the statute places the burden on a judge to disqualify himself sua sponte.7
“There is no particular procedure that a party must follow to obtain judicial disqualification
under § 455(a).”8

4

Lijeberg, 486 U.S. at 860.

5

28 U.S.C. § 144 (emphasis added).

6

Id.

7

Roberts v. Bailar, 625 F.2d 125, 129 (6th Cir. 1980).

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Id.
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Hart states the undersigned has shown partiality towards Penske by ruling in Penske’s
favor on Penske’s motion for summary judgment and by ruling in Penske’s favor on Penske’s
motion to compel post-judgment discovery. “[J]udicial rulings alone almost never constitute a
valid basis for a bias or partiality motion.”9 “[E]arlier adverse rulings, without more, do not
provide a reasonable basis for questioning a judge’s impartiality.” The fact the undersigned
ruled against Hart at previous stages of litigation does not raise a reasonable question of
partiality. With respect to the order granting summary judgment, Hart makes no allegation of
bias other than the simple fact of an adverse ruling – a ruling the Sixth Circuit Court of Appeals
has affirmed on review.
Hart gives more detail in claiming the undersigned showed partiality by ruling in
Penske’s favor on Penske’s motion to compel. Hart argues the undersigned did not require
Penske to provide “proof of service for delivery of the alleged correspondences[,]”10 and
“inferr[ed] Plaintiff is being untruthful[.]”11 However, a review of the record shows Penske
attached its discovery requests to its motion to compel, including a certificate of service attested
to by Penske’s counsel.12 “If a certificate of service is filed averring that a [paper] has been
served by being placed in the U.S. mail, ‘a presumption of regularity arises that the addressee
received the [paper].’”13 Had Hart wished to contest this presumption, the proper way to do so
9

Liteky v. United States, 510 U.S. 540, 555 (1994); see also Addams-More v. United
States, 79 Fed. Cl. 578, 580 (2007).
10

Motion to Recuse at 1.

11

Id. at 2.

12

Exhibit A to Motion to Compel at 8, D.E. # 60-1.

13

Craul v. Wal-Mart Stores East, LP, No. 4: 12-CV-1380, 2012 WL 6823181, at *6
(M.D. Pa., Nov. 29, 2012) (quoting Fiore v. Giant Food Stores, Inc., No. 98-517, 1998 WL
254975, at *2 (E.D. Pa., April 17, 1998)).
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would have been by response to Penske’s motion to compel. Hart failed to respond, waiving his
opportunity to contest Penske’s evidence.14
Hart further argues a reasonable person might reasonably question the undersigned’s
impartiality because the undersigned is the subject of a complaint Hart filed with the United
States Department of Justice. However, that a litigant has filed a complaint against a judge is not
grounds for recusal.15 If it were, “litigants displeased with Judge A’s adverse rulings could
easily manipulate the system by filing a misconduct complaint, thereby disqualifying Judge A
from hearing the case, in the hopes that the case would then be assigned to Judge B who might
be more sympathetic to their cause. Judge shopping is not a practice that should be
encouraged.”16 As a matter of law, the fact Hart filed a complaint with the Department of Justice
against the undersigned would not cause a reasonable person to question the undersigned’s
impartiality.
Because Hart presents the undersigned with nothing that would cause a reasonable,
objective person with knowledge of all the circumstances to doubt the undersigned’s
impartiality, the undersigned DENIES Hart’s Motion to Recuse under 28 U.S.C. § 455.
Penske, in its response to Hart’s motion to recuse, asks this Court to hold Hart in
contempt, and order Hart to pay an additional $1,000.00 as sanctions and to pay Penske’s
outstanding judgment by a date certain. Because Penske raises this request by way of a response

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See L.R. 7.2(a)(2) (“Failure to respond timely to any motion . . . may be deemed good
grounds for granting the motion.”) It should also be noted that Hart’s bare assertion he never
received Penske’s discovery request is legally insufficient to overcome the presumption of good
service. “Denials of receipt generally will not overcome the presumption in the absence of some
supporting evidence.” Craul, 2012 WL, at *6.
15

In re Mann, 229 F.3d 657, 658 (7th Cir. 2000).

16

Id.
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to a motion instead of motioning the Court, the Court DENIES Penske’s request with leave to
refile as a motion so that Hart may properly respond.
CONCLUSION
Because Hart’s Motion to Recuse contains insufficient grounds for recusal, the
undersigned DENIES Hart’s Motion to Recuse. Because Penske requested sanctions in a
response rather than by motioning the Court, the Court DENIES Penske’s request for sanctions
with leave to refile.
IT IS SO ORDERED.

s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: July 25, 2013.

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