Blakely et al v. USAA Casualty Insurance

Filing 167

MEMORANDUM DECISION & Order Re: Recusal-denying 161 Motion to Disqualify Judge. ; ( Status Report and Scheduling Conference set for 1/18/2013 01:30 PM in Room 420 before Judge Bruce S. Jenkins.) See Order for details. Signed by Judge Bruce S. Jenkins on 12/10/12. (jmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
*********
ALAN BLAKELY and COLELYN
BLAKELY,
Plaintiffs,
vs.
USAA CASUALTY INSURANCE
COMPANY,
Defendant.

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Civil No. 2:06-CV-00506 BSJ
MEMORANDUM OPINION
& ORDER RE: RECUSAL
(28 U.S.C. §§ 144, 455)

FILED
CLERK, U.S. DISTRICT COURT
December 10, 2012 (2:00pm)
DISTRICT OF UTAH

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On November 16, 2012, this court docketed the mandate of the court of appeals in the
above-entitled action. (See Mandate, filed November 16, 2012 (dkt. no. 164).) The court of
appeals reversed this court’s December 6, 2011 Memorandum Opinion and Order granting
summary judgment against the plaintiffs Alan and Colelyn Blakely (“the Blakelys”) on their
claims against USAA Casualty Insurance Company (“USAA”) for breach of the implied
covenant of good faith and fair dealing and remanded the same for further proceedings in light of
the Utah Supreme Court’s recent opinion in Jones v. Farmers Insurance Exchange, 2012 UT 52,
286 P.3d 301, decided August 28, 2012.
Prior to this court’s receipt of that mandate, the plaintiffs filed a “Motion to Have Judge
Recuse Himself and Have Another Judge Assigned” pursuant to 28 U.S.C. §§ 144 and 455,1

1

(Plaintiffs’ Motion to Have Judge Recuse Himself and Have Another Judge Assigned,
filed November 2, 2012 (CM/ECF No. 161).)

accompanied by a memorandum,2 a declaration signed by both plaintiffs,3 and subsequently, a
certificate of plaintiffs’ counsel.4 Defendant’s counsel filed a memorandum in response5 and
plaintiffs’ counsel filed a one-paragraph reply.6
Applicable Legal Standards
28 U.S.C. § 144 and “Personal Bias or Prejudice”
Section 144 provides for the disqualification of a district court judge when a party to a
proceeding before that judge makes the requisite showing that the judge has “a personal bias or
prejudice either against him or in favor of any adverse party.”7 “A district court judge must not

2

(Memorandum in Support of Plaintiffs’ Motion to Have Judge Recuse Himself and Have
Another Judge Assigned, filed November 2, 2012 (CM/ECF No. 162) (“Blakely Mem.”).)
3

(Id. at Exh. A (“Blakely Decl.”).)

4

(Certificate of Counsel re Motion to Recuse, filed November 6, 2012 (CM/ECF No.

163).)
5

(Opposition to Plaintiffs’ Motion for Recusal, filed November 27, 2012 (CM/ECF No.
165) (“USAA Mem.”).)
6

(Plaintiffs’ Reply Memorandum in Support of their Motion to Recuse, filed November
28, 2012 (CM/ECF No. 166).)
7

28 U.S.C. § 144 reads in part:

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 . . . . A party may file only one such affidavit in any case. . . .
28 U.S.C.A. § 144 (2006). The court of appeals notes that “§ 144 requires an affidavit of bias
(continued...)
-2-

proceed further when a party makes and files a timely and sufficient affidavit that the first judge
has a personal bias or prejudice.” Green v. Dorrell, 969 F.2d 915, 919 (10th Cir. 1992)
(emphasis in original).8 To warrant disqualification, the affidavit required under § 144 must be
both timely and sufficient.9
Timeliness
Section 144’s “timeliness requirement has this been deemed of ‘fundamental importance’
and a matter of substance, not form by a majority of federal district and appeals courts,”10 and is
measured by a standard of reasonableness.11 In this Circuit, the movant must “file his affidavit
when he first learned of facts that allegedly showed bias and prejudice.” Green, 969 F.2d at 919;
see Hinman v. Rogers, 831 F.2d 937, 938 (10th Cir. 1987) (“a motion to recuse must be filed

7

(...continued)
and prejudice, which must be timely, sufficient, made by a party, and accompanied by a
certificate of good faith of counsel.” Glass v. Pfeffer, 849 F.2d 1261, 1267 (10th Cir. 1988).
8

“The filing of the affidavit does not bring about the disqualification. The trial court
determines its sufficiency. The review is, however, restricted to its legal sufficiency and does not
include the truth of the allegations. There must be facts, however, to establish personal bias.”
United States v. Ritter, 540 F. 2d 459, 461-62 (10th Cir. 1976).
9

The court of appeals has observed that “in practice, the procedural requirements of this
statute, which are quite specific, have been strictly construed.” United States v. Hines, 696 F.2d
722, 728 (10th Cir. 1982) (citing United States v. Womack, 454 F.2d 1337 (5th Cir.1972), cert.
denied, 414 U.S. 1025 (1973))
10

Annotation, Timeliness of Affidavit of Disqualification of Trial Judge Under 28 U.S.C.
§ 144, 141 A.L.R. Fed. 311, 329 (1997) (footnotes omitted).
11

Section 144 provides that 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.” With the abolition of formal terms of court in 1963, “the
timeliness of the affidavit must now be judged by a standard of reasonableness in light of the
given facts.” Hines, 696 F.2d at 728.
-3-

promptly after the facts forming the basis of the disqualification become known”);12 United
States v. Gigax, 605 F.2d 507, 511 (10th Cir. 1979) (same); United States v. Roberts, 947 F.
Supp. 1544, 1549 (E.D. Okla. 1996) (affidavit “must be filed ‘at the first opportunity after
discovery of the facts tending to prove disqualification.’” (quoting Sine v. Local No. 992 Intern.
Broth. of Teamsters, 882 F.2d 913, 915 (4th Cir.1989))).13 As the Fifth Circuit has observed,
“The most egregious delay—the closest thing to per se untimeliness—occurs when a party
already knows the facts purportedly showing an appearance of impropriety but waits until after
an adverse decision has been made by the judge before raising the issue of recusal.” United
States v. Vadner, 160 F.3d 263, 264 (5th Cir. 1998).
Sufficiency
“A party cannot subjectively state in a 28 U.S.C. § 144 affidavit that a judge is prejudiced
and thereby automatically disqualify the judge.”14 Section 144 “requires that the affidavit of bias
must state the facts and reasons for the belief that bias or prejudice exists.”15 To be entitled to

12

In Hinman, § 144 affidavits were held to be untimely where they had been filed three to
five months after the most recent relevant facts had been discovered. See also United States v.
Sykes, 7 F.3d 1331, 1339 (7th Cir. 1993) (ruling a §144 affidavit filed two months after the
allegedly prejudicial statement was untimely); Davis v. Cities Service Oil Co., 420 F.2d 1278,
1282 (10th Cir. 1970) “These plaintiffs withheld action until a month after the case was decided
against them. Such an application comes too late.”); Smuck v. Hobson, 408 F.2d 175, 183
(D.C.Cir. 1969) (en banc) (expressing “serious doubt” about the timeliness of a § 144 affidavit
based on remarks the judge made “more than two weeks before” and a law review article he
published “more than a year” earlier).
13

See also, Annotation, 141 A.L.R. Fed. at 342-54, and cases cited therein.

14

8 Fed. Proc., L. Ed. Courts and Judicial System § 20:340, at 389 (2005) (footnote
omitted).
15

Id. § 20:339, at 386 (footnote omitted).
-4-

recusal under § 144, the moving party must submit an affidavit showing, among other things,
personal bias and prejudice:
Affidavits of disqualification [under § 144] must allege personal rather than
judicial bias. They must contain more than mere conclusions. They must show
facts indicating the existence of a judge’s personal bias and prejudice. Motions
alleging bias and prejudice on the part of a judge which establish simply that the
affiant does not like a particular judge are not adequate to require disqualification.
United States v. Bray, 546 F.2d 851, 857 (10th Cir. 1976) (citations omitted). In order to be
sufficient, the § 144 affidavit must state facts and reasons which “‘give fair support to the charge
of a bent of mind that may prevent or impede impartiality of judgment.’” Bell v. Chandler, 569
F.2d 556, 559 (10th Cir. 1978) (quoting Berger v. United States, 255 U.S. 22, 33-34 (1921)). “A
disqualification order under § 144 should be issued when ‘a reasonable man would conclude on
the facts stated (in the affidavit) that the district judge had a special bias against defendant.’”
Bell, 569 F.2d at 559 (quoting United States v. Thompson, 483 F.2d 527, 528 (3d Cir. 1973)).
To warrant recusal under § 144, the alleged bias must be both personal and extrajudicial:
§ 144 refers to ‘personal bias or prejudice.’ The complaints of the plaintiffs relate
to actions and statements during the proceedings. They reflect the judge’s attitude
and reactions to incidents then occurring. They do not reflect any personal feeling
for or against any party or any attorney. To sustain disqualification the bias and
prejudice must arise from an ‘extrajudicial source’ and result in an opinion ‘on
some basis other than what the judge learned from his participation in the case.’ . .
. . Here the complaints all have their origin in judicial proceedings and the
decision was on the record made in the judicial proceedings.
Davis v. Cities Serv. Oil Co., 420 F.2d 1278, 1282 (10th Cir. 1970) (quoting United States v.
Grinnell Corp., 384 U.S. 563, 583 (1966)) (citation omitted); see United States v. Irwin, 561
F.2d 198, 200 (10th Cir. 1977) (“The bias charged must be of a personal nature and must be such
as would likely result in a decision on some basis other than what the judge learned from his

-5-

participation in the case.”).16 Adverse rulings alone are insufficient grounds for disqualification
of a judge, Glass v. Pfeffer, 849 F.2d 1261, 1268 (10th Cir. 1988) (citing Bray, 546 F.2d at 857),
“as is evidence that the judge criticized or was angry with a party.” Lopez v. Behles (In re Am.
Ready Mix, Inc.), 14 F.3d 1497, 1501 (10th Cir. 1994).
[O]pinions formed by the judge on the basis of facts introduced or events
occurring in the course of the current proceedings, or of prior proceedings, do not
constitute a basis for a bias or partiality motion unless they display a deep-seated
favoritism or antagonism that would make fair judgment impossible. Thus,
judicial remarks during the course of a trial that are critical or disapproving of, or
even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias
or partiality challenge. They may do so if they reveal an opinion that derives from
an extrajudicial source; and they will do so if they reveal such a high degree of
favoritism or antagonism as to make a fair judgment impossible.
Liteky v. United States, 510 U.S. 540, 555 (1994) (emphasis in original).
Moreover, under § 144 a federal judge may be disqualified only “upon a showing of
actual bias or prejudice.” Varela v. Jones, 746 F.2d 1413, 1416 (10th Cir. 1984); see Hoffman v.
Caterpillar, Inc., 368 F.3d 709, 718 (7th Cir. 2004) (“a motion to disqualify under § 144 requires
a showing of actual bias. And only personal animus or malice on the part of the judge can
establish actual bias.” (emphasis in original) (citing United States v. Balistrieri, 779 F.2d 1191,
1201 (7th Cir. 1985))); Henderson v. Dep’t Pub. Safety and Corrs., 901 F.2d 1288, 1296 (5th
Cir. 1990) (“Section 144 relates only to charges of actual bias.”).
To be legally sufficient under § 144, the affidavit must aver specific facts: “The affidavit
must state with required particularity the identifying facts of time, place, persons, occasion, and

16

See also United States v. Professional Air Traffic Controllers Organization, 527 F.
Supp. 1344, 1357 (N.D. Ill. 1981) (“[P]ersonal bias or prejudice refers to some sort of
antagonism or animosity toward a party arising from sources or events outside the scope of a
particular proceeding.”).
-6-

circumstances.” Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir. 1987). “The affidavit is
insufficient if it merely states conclusions, rumors, beliefs and opinions . . . .” Glass, 849 F.2d at
1267.17
The facts alleged in the § 144 affidavit must be accepted as true, Glass, 849 F.2d at 1267,
but they are “strictly construed against the affiant and there is a substantial burden on the moving
party to demonstrate that the judge is not impartial,” not a burden on the judge to prove that he is
impartial. United States v. Burger, 964 F.2d 1065, 1070 (10th Cir. 1992), cert. denied, 507 U.S.
1033 (1993). Whether to recuse is a decision “committed to the sound discretion of the district
court,” and the court of appeals will not reverse a judge’s refusal to recuse absent an abuse of that
discretion. Id.
28 U.S.C. § 455 & Judicial Impartiality
28 U.S.C. § 455(b)(1) echoes the § 144 recusal requirement for actual personal bias, and
requires disqualification only if “actual bias or prejudice is ‘proved by compelling evidence.’”
Hook v. McDade, 89 F.3d 350, 355 (7th Cir. 1996) (quoting United States v. Balistrieri, 779 F.2d
at 12020).18 Section 455(a), on the other hand, is broader and requires a judge to disqualify
himself “in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C.
§ 455(a). The court of appeals has held that “[a] judge has a continuing duty to recuse under §

17

The court of appeals in Glass affirmed the denial of a disqualification motion where the
affidavit “lacked particularity” and was “filled with conclusions, rumors and innuendo.” Glass,
849 F.2d at 1267-68.
18

28 U.S.C.A. § 455(b)(1) (2006) reads:

(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal
knowledge of disputed evidentiary facts concerning the proceeding; . . .
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455(a) if sufficient factual grounds exist to cause a reasonable, objective person, knowing all the
relevant facts, to question the judge’s impartiality.” United States v. Pearson, 203 F.3d 1243,
1277 (10th Cir. 2000). Under § 455(a), judges should apply an objective standard in determining
whether to recuse.19 A judge contemplating recusal should not ask whether he or she believes he
or she is capable of impartially presiding over the case. According to our court of appeals, under
§ 455(a), “[t]he test in this circuit is “‘“whether a reasonable person, knowing all the relevant
facts, would harbor doubts about the judge’s impartiality.”’” United States v. Cooley, 1 F.3d 985,
992 (10th Cir. 1993) (quoting United States v. Burger, 964 F.2d at 1070 (quoting Hinman v.
Rogers, 831 F.2d 937, 939 (10th Cir. 1987))). Under § 455(a), “a judge has a continuing duty to
recuse before, during, or, in some circumstances, after a proceeding, if the judge concludes that
sufficient factual grounds exist to cause an objective observer reasonably to question the judge’s
impartiality.” Id. (citing Liljeberg, 486 U.S. at 861, Frates v. Weinshienk, 882 F.2d 1502,
1505-07 (10th Cir. 1989), cert. denied, 494 U.S. 1004 (1990), and United States v. Kelly, 888
19

As the court of appeals has explained:

This subsection is part of a 1974 amendment to the statute, enacted for the
purpose of clarifying and broadening the grounds for judicial disqualification.
“The general language of subsection (a) was designed to promote public
confidence in the integrity of the judicial process by replacing the subjective [‘in
the opinion of the judge’] standard with an objective test.” Liljeberg v. Health
Servs. Acquisition Corp., 486 U.S. 847, 858 n. 7, 108 S.Ct. 2194, 2202, n. 7, 100
L.Ed.2d 855 (1988). See S.Rep. No. 93- 419 at 1 (1973); H.R. Rep. No. 93-1453
at 1-2 (1974), U.S. Code Cong. & Admin. News 1974, p. 6351. The subsection
“applies to the varied and unpredictable situations not subject to reasonable
legislative definition in which judges must act to protect the very appearance of
impartiality.” United States v. Gipson, 835 F.2d 1323, 1325 (10th Cir.1988). . . .
United States v. Cooley, 1 F.3d 985, 992 (10th Cir. 1993). And Congress amended § 455 in 1974
“to conform with the recently adopted ABA Code of Judicial Conduct, Canon 3C (1974).”
Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 858 n. 7 (1988).
-8-

F.2d 732, 744 (11th Cir. 1989)).
In applying § 455(a), the judge’s actual state of mind, purity of heart,
incorruptibility, or lack of partiality are not the issue. See, e.g., Hall v. Small
Business Admin., 695 F.2d 175, 179 (5th Cir. 1983); Susan B. Hoekema,
Comment, Questioning the Impartiality of Judges: Disqualifying Federal District
Court Judges Under 28 U.S.C. § 455(a), 60 Temp. L.Q. 697, 727 (1987). . . . The
standard is purely objective. The inquiry is limited to outward manifestations and
reasonable inferences drawn therefrom. In applying the test, the initial inquiry is
whether a reasonable factual basis exists for calling the judge’s impartiality into
question. . . .
Id. at 993 (citing Gipson, 835 F.2d at 1325; Willner v. University of Kansas, 848 F.2d 1023,
1026-27 (10th Cir. 1988); United States v. Hines, 696 F.2d 722, 729 (10th Cir. 1982); In re
Allied Signal, Inc., 891 F.2d 967, 970 (1st Cir. 1989), cert. denied, 495 U.S. 957 (1990)).
“If the issue of whether § 455 requires disqualification is a close one, the judge must be
recused.” Bryce v. Episcopal Church in the Diocese of Colorado, 289 F.3d 648, 659 (10th Cir.
2002); see Nichols v. Alley, 71 F.3d 347, 352 (10th Cir. 1995). But the court of appeals has also
admonished that “[t]here is as much obligation for a judge not to recuse when there is no
occasion for him to do so as there is for him to do so when there is.” Hinman v. Rogers, 831
F.2d 937, 939 (10th Cir. 1987). “A judge should not recuse . . . on unsupported, irrational, or
highly tenuous speculation.” Id. 20
20

See also Cooley, 1 F.3d at 993-994:

Thus, in addition to other factors, this and other courts have identified
various matters arising in cases involving §§ 144, 455(a), or 455(b)(1), which will
not ordinarily satisfy the requirements for disqualification under § 455(a): (1)
Rumor, speculation, beliefs, conclusions, innuendo, suspicion, opinion, and
similar non-factual matters, United States v. Burger, 964 F.2d at 1069; Glass v.
Pfeffer, 849 F.2d at 1267; Willner v. University of Kansas, 848 F.2d at 1027;
Hinman v. Rogers, 831 F.2d at 939-40; United States v. Hines, 696 F.2d at 719;
(2) the mere fact that a judge has previously expressed an opinion on a point of
(continued...)
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It has long been understood that “The alleged bias and prejudice to be disqualifying must
stem from an extrajudicial source . . . other than what the judge learned from his participation in
the case.” United States v. Grinnell Corp., 384 U.S. 563, 583 (1966) (emphasis added).
In Liteky v. United States, the Court applied this “extrajudicial source” doctrine under the
current language of § 455(a). Just prior to his second criminal trial, the defendant in Liteky
moved to disqualify the judge on the ground that the judge displayed “impatience, disregard for
the defense and animosity” toward the defendant during an earlier criminal trial. He cited
various comments by the judge, including admonitions of defense witnesses and counsel as well
as certain trial rulings. The Court rejected the contention that recusal was in order:

20

(...continued)
law, Leaman v. Ohio Dep't of Mental Retardation, 825 F.2d 946, 949 n. 1 (6th
Cir. 1987); United States v. Bray, 546 F.2d 851, 857 (10th Cir. 1976), or has
expressed a dedication to upholding the law or a determination to impose severe
punishment within the limits of the law upon those found guilty of a particular
offense, United States v. Gigax, 605 F.2d at 514; United States v. Haldeman, 559
F.2d 31, 134 n. 302 (D.C.Cir. 1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53
L.Ed.2d 250 (1977); (3) prior rulings in the proceeding, or another proceeding,
solely because they were adverse, see Glass v. Pfeffer, 849 F.2d at 1268; Green v.
Dorrell, 969 F.2d 915, 919 (10th Cir.1992); Willner v. University of Kansas, 848
F.2d at 1028; (4) mere familiarity with the defendant(s), or the type of charge, or
kind of defense presented, see Frates v. Weinshienk, 882 F.2d at 1506; (5)
baseless personal attacks on or suits against the judge by a party, United States v.
Bray, 546 F.2d at 858; (6) reporters’ personal opinions or characterizations
appearing in the media, media notoriety, and reports in the media purporting to be
factual, such as quotes attributed to the judge or others, but which are in fact false
or materially inaccurate or misleading; and (7) threats or other attempts to
intimidate the judge. See United States v. Studley, 783 F.2d 934, 940 (9th Cir.
1985); United States v. Grismore, 564 F.2d 929, 934 (10th Cir.1977), cert. denied,
435 U.S. 954, 98 S.Ct. 1586, 55 L.Ed.2d 806 (1978). Finally, we have emphasized
that “[t]here is as much obligation for a judge not to recuse when there is no
occasion for him to do so as there is for him to do so when there is.” Hinman, 831
F.2d at 939. (Footnotes omitted.)
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First, judicial rulings alone almost never constitute a valid basis for a bias or
partiality motion. . . . In and of themselves (i.e., apart from surrounding comments
or accompanying opinion), they cannot possibly show reliance upon an
extrajudicial source; and can only in the rarest circumstances evidence the degree
of favoritism or antagonism required . . . when no extrajudicial source is involved.
Almost invariably, they are proper grounds for appeal, not for recusal. Second,
opinions formed by the judge on the basis of facts introduced or events occurring
in the course of the current proceedings, or of prior proceedings, do not constitute
a basis for a bias or partiality motion unless they display a deep-seated favoritism
or antagonism that would make fair judgment impossible.
510 U.S. at 555 (emphasis added & citation omitted).
Consistent with Liteky, the court of appeals has rarely required judicial disqualification
when the alleged partiality did not derive from an “extrajudicial source,” e.g., judicial comments
concerning a probable outcome based upon information presented within the context of a case.
For example, in United States v. Young, 45 F.3d 1405, 1414 (10th Cir. 1995), the Tenth Circuit
upheld a refusal to recuse even though the district judge opined before trial that “the obvious
thing that’s going to happen . . . is that she’s going to get convicted.” The court of appeals
believed the district judge had simply expressed a view of what was likely to happen derived
from what he had observed in the case: “Nothing in the remark indicates that the judge was
unable or unwilling to carry out his responsibilities impartially.” Id. at 1416.21
Under § 455(a), as the Tenth Circuit explains:
Factors that do not merit disqualification include: rumor, speculation, beliefs,
conclusions, or other non-factual matters, see, e.g., United States v. Burger, 964
21

Indeed, the most common basis for recusal is when a judge learns something outside of
the proceedings before the court which “‘result[s] in an opinion on the merits on some basis other
than what the judge learned from his participation in the case.’” Lopez v. Behles (In re Am.
Ready Mix, Inc.), 14 F.3d 1497, 1501 (10th Cir. 1994), cert. denied, 513 U.S. 818 (1994)
(quoting United States v. Grinnell Corp., 384 U.S. 563, 583 (1966); see also Liteky, 510 U.S. at
551 (noting that extrajudicial source factor is the only common basis upon which to establish
disqualifying bias).
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F.2d 1065, 1070 (10th Cir. 1992); the fact that the judge has previously expressed
an opinion on a point of law, see, e.g., Leaman v. Ohio Dep’t of Mental
Retardation & Developmental Disabilities, 825 F.2d 946, 949 n.1 (6th Cir. 1987);
and prior rulings that were adverse to the moving party in this proceeding, or in
another proceeding, solely because they were adverse, see, e.g., Green v. Dorrell,
969 F.2d 915, 919 (10th Cir. 1992). In addition, in Sac & Fox we noted that there
was no authority for the proposition that the “time and manner of [the judge’s]
ruling creates a reasonable doubt about impartiality, absent any other indicia of
bias or partiality.” 193 F.3d at 1168; . . . .
Estate of Bishop v. Equinox Intern. Corp., 256 F.3d 1050, 1058 (10th Cir. 2001) (quoting Sac &
Fox Nation of Okla. v. Cuomo, 193 F.3d 1162, 1168 (10th Cir. 1999)).
“A party introducing a motion to recuse carries a heavy burden of proof; a judge is
presumed to be impartial and the party seeking disqualification bears the substantial burden of
proving otherwise.” Pope v. Fed. Express Corp., 974 F.2d 982, 985 (8th Cir. 1992) (citation
omitted). Under § 455—in contrast to § 144— the movant’s “factual allegations need not be
taken as true, and” as explained above, “the test is whether a reasonable person, knowing all the
relevant facts, would harbor doubts about the judge’s impartiality.” Glass v. Pfeffer, 849 F.2d at
1268 (internal quotation omitted). Under § 455, the court of appeals insists that
disqualification is appropriate only where the reasonable person, were he to know
all the circumstances, would harbor doubts about the judge’s impartiality.
Nichols, 71 F.3d at 351. There must be a reasonable factual basis to question the
judge’s impartiality. United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993).
The scope of inquiry is limited to outward manifestations and reasonable
inferences drawn therefrom. Id. Section 455 does not require recusal based only
on assumptions about a judge’s beliefs that are not substantiated by the facts of
record. See Nichols, 71 F.3d at 351; Bryce v. Episcopal Church, 289 F.3d 648,
659-60 (10th Cir. 2002).
In re McCarthey, 368 F.3d 1266, 1269-1270 (10th Cir. 2004) (emphasis added); see United
States v. Mendoza, 468 F.3d 1256, 1261 (10th Cir. 2006) (same).

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The Blakelys’ § 144 “Affidavit” is Untimely
As noted above, plaintiffs filed their § 144 “affidavit” in this case on November 2, 2012.
All of their allegations of bias prove to be footed upon either the contents of this court’s August
7, 2009 Order22 or this court’s December 6, 2011 Memorandum Opinion & Order23 granting
summary judgment against the Blakelys on their claim for breach of the implied covenant of
good faith and fair dealing. The contents of those rulings have been known to the Blakelys and
their counsel for at least three years and for nearly one year, respectively. The Blakelys point to
no facts upon which they rely in making their allegations that were not known to them at the time
those rulings were made. Neither the Blakelys nor their counsel offer any explanation for the
protracted three-year and one-year delay in filing their § 144 motion with this court, and good
cause for that delay does not appear upon the record in this case, particularly where two-thirds of
the Blakelys’ allegations of bias pertain to what was or was not included in the court’s August 7,
2009 Order, more than three years ago.
In Securities Exchange Comm’n v. Loving Spirit Foundation Inc., 392 F.3d 486 (D.C.
Cir. 2004), the court “found no case, nor has [affiant] cited one, permitting a delay as long as the
one in this case,” where the affiant had “waited two years after the first order it complains of and
over six months after the last.” Id. at 492-93. The same may be said of the Blakelys’ allegations
of bias in this case. Thus the Blakelys’ recusal papers are not timely within the meaning of 28
U.S.C. § 144.

22

(Order of Dismissal, filed August 7, 2009 (CM/ECF No. 113) (“Aug. 7, 2009 Order”).)

23

(Memorandum Opinion & Order, filed December 6, 2011 (CM/ECF No. 153) (“Dec. 6,
2011 Mem. Op.”).)
-13-

The Blakelys’ § 144 “Affidavit” is Legally Insufficient
As outlined above, a legally sufficient § 144 affidavit must meet the following
requirements: (1) the facts must be material and stated with particularity; (2) the facts must be
such that if true they would convince a reasonable person that an actual bias exists; and (3) the
facts must show the bias is personal, as opposed to judicial, in nature. As explained above, §
144 affidavits are strictly construed against the affiant and the moving party has a substantial
burden in establishing that a judge is not impartial. United States v. Burger, 964 F.2d at 1070.
Even assuming that the Blakelys’ November 2, 2012 filings were somehow timely for
purposes of § 144, they do not prove to be “sufficient” within the meaning of that section.
First, the Blakelys allege no specific facts that, if taken as true, would establish any
extrajudicial source for the court’s purported bias. Nothing in the Blakelys’ papers even hints
that the court has any personal antagonism towards them, or that the court learned something
outside of the proceedings before the court in this case which “‘result[s] in an opinion on the
merits on some basis other than what the judge learned from his participation in the case.’”
Lopez, 14 F.3d at 1501.
The Blakelys’ allegations of bias are rooted entirely in their dissatisfaction with this
court’s adverse rulings and the court’s recital or omission of specific facts in its own explanation
of those rulings, as well as the Blakelys’ imputation of negative inferences to the court that they
choose to draw from the court’s explanation of its rulings.
The Blakelys primarily complain that the court’s August 7, 2009 Order made “many
references to documents and facts that favor USAA and unfairly ignores the facts Mr. and Mrs.
Blakely presented in their declaration in opposition to defendant’s motion for summary judge
-14-

[sic] and in other evidence submitted by Plaintiffs.”24 They point to eight examples of factual
references in the court’s August 7, 2009 Order, complaining in each instance that the court did
not expressly reiterate the Blakelys’ factual allegations and contentions as part of its
explanation.25 In essence, the Blakelys try to infer actual personal bias from the fact that in
24

(Blakely Mem. at 2.) Throughout the Blakelys’ November 2, 2012 memorandum,
counsel refers to the “plaintiffs’ May 2009 declarations, Doc 75, Exhs 11, 12.” In fact, the record
reflects that the referenced “Affidavit of Alan Blakely” and “Affidavit of Colelyn Blakely” were
each dated May 15, 2008.
25

The Blakelys aver that (1) “The Judge does not mention that (as we described in our
declarations) we were forced by USAA to move back into the house which was still under
construction because USAA refused to pay any more living expenses,” Blakely Decl. at 1
¶(2)(a)(1); (2) “The Judge leaves out the fact that (as we described in our declarations and the
Tenth Circuit later acknowledged) we were pressured and felt we had little choice but to consent
to USAA’s ‘preferred vendor’ contractor,” id. at ¶(2)(a)(2); (3) “the Judge fails to mention that
the engineer made it clear that he was only addressing the structural issues, not cosmetic,
warranty, odors or other related matters that needed to be addressed to repair and restore the
house to its pre-loss condition,” id. at 2 ¶(2)(a)(3); (4) “the Judge states that the repair and
restoration work ‘was completed by mid-November, 2002’ except for some odor and cleaning
issues. This again does not portray our position that (as we described in our declarations) the
construction was not completed and much of the repairs remained uncompleted for years,” id. at
¶(2)(a)(4); (5) “the Judge relates that we filed a civil action against the at-fault contractor which
caused the fire, leaving the impression that plaintiffs were satisfied with USAA’s settlement, but
wanted to bring a civil claim for other damages. Again, the Judge doesn’t explain that (as we
described in our declarations) we filed the civil suit because USAA was refusing to properly pay
our losses under the insurance policy and it appeared it would be an easier task to obtain full
compensation from the at-fault contractor than it would be from USAA,” id. at ¶(2)(a)(5); (6) the
court “states that we ‘waited until January 29, 2005’ to seek the arbitration and that the ‘process
was from the beginning available’ to us, suggesting that the delay was solely our fault without
giving any explanation that (as we described in our declarations) it was USAA’s recalcitrance in
refusing to pay or deal with us further that made us feel a need to file the interim civil suit. It
wasn’t until it appeared more difficult to get the recovery from the at-fault contractor that we
concluded we should proceed with the arbitration process,” id. at 2-3 ¶(2)(a)(6); (7) the court’s
“one-sided description” of the Blakelys’ assertion of additional claims in June 2004 “makes no
mention of the many efforts plaintiffs used to get USAA to consider the additional claims in
2002 shortly after the fire (as described in our declarations),” id. at 3 ¶(2)(a)(7); and (8) the
court’s description that USAA “‘within a relatively expeditious period of time, paid living
expenses, personal property claims and reconstruction bills’ . . . favors only USAA and ignores
(continued...)
-15-

explaining its ruling against them, the court had not “told our side of the story,” that is, the court
did not adopt the Blakelys’ preferred characterization of specific evidence upon which the
Blakelys rely, or their proferred explanations of their mental state, i.e., why the Blakelys did what
they did in the months and years following the August 29, 2002 fire.26
The remainder of the Blakelys’ declaration complains that following the court of appeals’
reversal of this court’s August 7, 2009 Order as to their “bad faith” claim, “USAA brought the
motion again to have our case thrown out, which he granted and again dismissed our case on
December 6, 2011,” and in doing so, “[t]he Judge basically gives the same summary of the facts
as we describe above as a one sided summary of uncontested facts without giving credence to the
testimony in our Declarations and our evidence.”27 Thus, the Blakelys argue that this court’s
memorandum opinion itself “appears to demonstrate bias against us (or in favor of USAA).”28
If indeed the Blakelys’ alleged “facts indicating the existence of a judge’s personal bias
and prejudice” consist entirely of the text of this court’s orders, then the text of those orders must
be taken as a whole and the Blakelys’ complaints about an order must be considered in context of

25

(...continued)
the testimony in our declarations and other evidence we presented of USAA’s dilatory and unfair
treatment of us and the inadequate payments,” id. at ¶(2)(a)(8).
26

The Blakelys also point to the court of appeals’ recitation of specific factual allegations
in concluding that the Blakelys’ “bad faith” claim was not frivolous—allegations the Blakelys
aver “Judge Jenkins seemed to ignore in his ruling.” (Blakely Decl. at 3 ¶(2)(b).) Yet the court
appeals qualified that recitation, stating that “we express no opinion on the ultimate merits of the
Blakelys’ claim for breach of the implied covenant of good faith and fair dealing, or whether the
evidence is sufficient to withstand any other type of dispositive motion,” such as summary
judgment. Blakely v. USAA Cas. Ins. Co., 633 F.3d 944, 950 (10th Cir. 2011).
27

(Blakely Decl. at 4 ¶(2)(c)(2) (citing Dec. 6, 2011 Mem. Op. at 3-14).)

28

(Id. at ¶(2)(c).)
-16-

the entire document. Under § 144 they must be “strictly construed against the affiant,” and
“there is a substantial burden on the moving party to demonstrate that the judge is not impartial.”
United States v. Burger, 964 F.2d at 1070.
Nothing in this court’s August 7, 2009 Order or its December 6, 2011 Memorandum
Opinion & Order reflects bias and prejudice arising from an “extrajudicial source” that resulted
in an opinion “‘on some basis other than what the judge learned from his participation in the
case.’” Davis v. Cities Serv. Oil Co., 420 F.2d at 1282 (quoting United States v. Grinnell Corp.,
384 U.S. at 583). “Here,” as in Davis, “the complaints all have their origin in judicial
proceedings and the decision was on the record made in the judicial proceedings.” Id.
That this court did not summarize the pertinent facts in the precise way that the Blakelys
would prefer does not establish actual personal animus or malice on the part of the court. Nor
does it show that the Blakelys’ various factual assertions were “overlooked” or “ignored.”
Among the uncontroverted facts recounted by this court’s December 6, 2011 Memorandum
Opinion & Order are these:
9. By mid-November, 2002, Phipps Construction completed the work
recommended in the Barfuss report and its repair and restoration work in the
Blakelys’ home. At that point, still unresolved were some odor and cleaning
issues and some personal property claims—claims which USAA submits had
ostensibly been resolved and paid by not later than July of 2003, but which the
Blakelys insist still remained unresolved.
****
11. By July of 2003, the Blakelys were still not satisfied with the extent of
the floor joist restoration work performed by Phipps Construction pursuant to the
Barfuss report, and with the cleaning, repair and restoration of their home and its

-17-

contents. . . .29
The memorandum opinion references both the Blakelys’ and USAA’s statements of fact set forth
in their respective summary judgment memoranda30 concerning the Blakelys’ dissatisfaction with
the remediation work in November 2002 through July 2003—which fact statements in turn
referenced the evidentiary materials the parties relied upon under Fed. R. Civ. P. 56(c), including
the 2008 Blakely declarations.31 The court further noted that “USAA disputes the record basis
for the Blakelys’ dissatisfaction with the remediation work as of July 2003, but does not dispute
that in July 2003, the Blakelys were in fact dissatisfied.”32 Far from ignoring the Blakelys’
factual assertions, the memorandum opinion’s footnotes catalog those materials in the record

29

(Dec. 6, 2011 Mem. Op. at 6-7 ¶¶ 9, 11 (footnotes omitted).) Compare Blakely v. USAA
Cas. Ins. Co., 633 F.3d 944, 947 (10th Cir. 2011) (“Throughout the process, however, the
Blakelys were dissatisfied with the work to their home and the extent their personal property was
cleaned and/or replaced.”)
30

The court’s local rule DUCivR 56-1 required that the parties’ Rule 56 memoranda
“must begin with a section that contains a concise statement of material facts as to which the
party contends a genuine issue exists” or “as to which movant contends no genuine issue exists.”
Each fact statement “must be numbered, must refer with particularity to those portions of the
record” on which the movant or the opposing party relies. DUCivR 56-1(b), (c). Our local rule
further provided that “[a]ll material facts of record meeting the requirements of Fed. R. Civ. P.
56 that are set forth with particularity in the statement of the movant will be deemed admitted for
the purpose of summary judgment, unless specifically controverted by the statement of the
opposing party identifying material facts of record meeting the requirements of Fed. R. Civ. P.
56.” DUCivR 56-1(c).
31

(See Dec. 6, 2011 Mem. Op. at 6-7 nn.15, 17 (citing “USAA Mem. at 4-5 ¶ 8; Blakely
Mem. at viii-xi ¶¶ 10-13, xx-xxi ¶ 8; USAA Reply Mem. at vii-xiv; USAA 3/28/08 Mem. at viii
¶¶ 11-12; Blakely 5/16/08 Mem. at iv-v ¶¶ 11-12”).) These and other footnote references reflect
the court’s review and consideration of all of the summary judgment materials submitted by the
parties before and after the 2011 remand, including all of plaintiffs’ counsel’s DUCivR 56-1(c)
statements of fact based upon the Blakelys’ 2008 declarations.
32

(Id. at 7 n.17.)
-18-

with reference to each paragraph of the court’s summary narrative of uncontroverted material
facts.
The Blakelys’ allegations of bias—grounded entirely in this court’s prior judicial rulings
against the Blakelys—fail to meet the standard articulated by the Supreme Court in Liteky and so
often quoted by the Tenth Circuit: “[O]pinions formed by the judge on the basis of facts
introduced or events occurring in the course of the current proceedings, or of prior proceedings,
do not constitute a basis for a bias or partiality motion unless they display a deep-seated
favoritism or antagonism that would make fair judgment impossible.” Liteky v. United States,
510 U.S. at 555 (emphasis added). From this court’s prior orders, a reasonable person could not
conclude “‘that the district judge had a special bias against defendant,’” Bell, 569 F.2d at 559
(quoting United States v. Thompson, 483 F.2d at 528), particularly when they are strictly
construed against the affiants, as is required under § 144. Burger, 964 F.2d at 1070 (holding that
§ 144 affidavits should be strictly construed against the affiant and that movants bear a
substantial burden to show actual partiality).
“The affidavit is insufficient if it merely states conclusions, rumors, beliefs and
opinions,” Glass, 849 F.2d at 1267, and the Blakelys’ conclusions, beliefs and opinions
concerning this court’s prior orders cannot suffice to require recusal under 28 U.S.C. § 144. See
Hoffman v. Caterpillar, Inc., 368 F.3d at 718 (explaining that “while a court must assume the
truth of the factual assertions, it is not bound to accept the movant’s conclusions as to the facts’
significance” (citing Balistrieri, 779 F.2d at 1199-1200)). The record in this case contains no
evidence of actual personal bias, animosity or malice on the part of the court that would require
recusal under § 144, and the Blakelys have proffered none. See id. (“only personal animus or
-19-

malice on the part of the judge can establish actual bias” under § 144).
Finally, under the requisite strict construction of § 144’s requirements,33 the Blakelys’ §
144 “affidavit” does not satisfy the statute’s procedural requirements. As explained above, § 144
requires a party seeking judicial recusal to file “a timely and sufficient affidavit.” Generally, an
“affidavit” consists of “[a] voluntary declaration of facts written down and sworn to by the
declarant before an officer authorized to administer oaths.” Black’s Law Dictionary 66 (9th ed.
Bryan A. Garner, ed. 2009). 28 U.S.C. § 1746 provides that:
[w]herever, under any law of the United States or under any rule, regulation,
order, or requirement made pursuant to law, any matter is required or permitted to
be supported, evidenced, established, or proved by the sworn declaration,
verification, certificate, statement, oath, or affidavit, in writing of the person
making the same (other than a deposition, or an oath of office, or an oath required
to be taken before a specified official other than a notary public), such matter may,
with like force and effect, be supported, evidenced, established, or proved by the
unsworn declaration, certificate, verification, or statement, in writing of such
person which is subscribed by him, as true under penalty of perjury, and dated, in
substantially the following form:
(1) If executed without the United States: “I declare (or certify, verify, or state)
under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct. Executed on (date).
(Signature)”.
(2) If executed within the United States, its territories, possessions, or
commonwealths: “I declare (or certify, verify, or state) under penalty of perjury
that the foregoing is true and correct. Executed on (date).
(Signature)”.
A statement or declaration that is made under penalty of perjury in compliance with 28 U.S.C.
§ 1746, “ha[s] the force of an affidavit or sworn declaration.” Hall v. Furlong, 77 F.3d 361, 363
33

Section 144’s “requirements are to be strictly construed to prevent abuse.” Sykes, 7 F.3d

at 1339.
-20-

(10th Cir. 1996), and would serve as an “affidavit” for purposes of 28 U.S.C. § 144. Sworn
statements executed pursuant to State law may also serve as “affidavits” for purposes of federal
law,34 presumably including § 144.
Unsworn declarations or statements that are not “subscribed . . . as true under penalty of
perjury” under the laws of the United States as required by § 1746 cannot serve as “affidavits,”
particularly under a strict construction of 28 U.S.C. § 144.
In this case, the October 31, 2012 “Declaration of Alan and Colelyn Blakely” was neither
“sworn to by the declarant[s] before an officer authorized to administer oaths” nor subscribed in
the fashion specified by 28 U.S.C. § 1746. Instead, the Blakelys’ declaration recites that “[w]e
declare under criminal penalty of the State of Utah that the foregoing is true and correct,”35

34

As the Supreme Court explained in Melendez-Diaz v. Massachusetts, 557 U.S. 305

(2009):
The documents at issue here, while denominated by Massachusetts law
“certificates,” are quite plainly affidavits: “declaration[s] of facts written down
and sworn to by the declarant before an officer authorized to administer oaths.”
Black’s Law Dictionary 62 (8th ed. 2004). They are incontrovertibly a “‘solemn
declaration or affirmation made for the purpose of establishing or proving some
fact.’”
557 U.S. at 310 (quoting Crawford v. Washington, 541 U.S. 36, 51 (2004) (quoting 2 N.
Webster, An American Dictionary of the English Language (1828)).
35

(Blakely Decl. at 6.) The oft-referenced May 15, 2008 declarations of Alan Blakely and
Colelyn Blakely were executed in the identical fashion. USAA moved to strike those
declarations because, inter alia, “they do not comply with the requirements of admissibility
under the Federal Rules of Civil Procedure. . . . [A]ffidavits must be signed, sworn, and notarized
to be admissible and support memoranda filed pursuant to Rule 56 . . . .” (Memorandum in
Support of Motion to Strike, filed June 3, 2008 (CM/ECF No. 81), at 2.) This court did not rule
on USAA’s motion to strike, instead pursuing the question whether the substance of the parties’
assertions of material fact were in genuine dispute, requiring a trial. This court concluded that
they were uncontroverted. (See Aug. 7, 2009 Order at 1 (“the Court concludes that there exist no
(continued...)
-21-

consistent with the form prescribed by Utah Code Ann. § 78B-5-705 (2008):
(1) If the Utah Rules of Criminal Procedure, Civil Procedure, or Evidence
require or permit a written declaration upon oath, an individual may, with like
force and effect, provide an unsworn written declaration, subscribed and dated
under penalty of this section, in substantially the following form:
“I declare (or certify, verify or state) under criminal penalty of the State of
Utah that the foregoing is true and correct.
Executed on (date).
(Signature)”.
(2) A person who knowingly makes a false written statement as provided under
Subsection (1) is guilty of a class B misdemeanor.
Section 78B-5-705 expressly applies to proceedings governed by the requirements of the Utah
court rules and makes no pretense of satisfying federal statutory or procedural requirements
already addressed by 28 U.S.C. § 1746. It also imposes its own penalty separate from those
prescribed under Utah law for perjury (or “falsification in official matters”), which range as high
as a second-degree felony. See Utah Code Ann. § 76-8-501 through 76-8-505 (2008).
Compliance with the requirements of 28 U.S.C. § 1746 was simple—the Blakelys need
only subscribe to their October 31, 2012 Declaration substantially in the form prescribed by the
federal statute. They did not do so. Thus, for purposes of 28 U.S.C. § 144 as strictly construed,
the October 31, 2012 “Declaration of Alan and Colelyn Blakely” filed with this court on
November 2, 2012, is not an affidavit at all.

35

(...continued)
triable issues of material fact, and that defendant is entitled to judgment as a matter of law”).
After remand, the Blakelys resubmitted the same 2008 declarations as exhibits to their
memorandum in opposition to USAA’s motion for summary judgment (see Exhibits “9” & “10”
to Plaintiffs’ Memorandum In Opposition to USAA’s Motion for Summary Judgment, filed May
16, 2011 (CM/ECF No. 147), but this time, USAA did not move to strike or otherwise object to
the declarations.
-22-

The Blakelys’ Allegations Fail to Justify Recusal Under § 455
Under § 455, a federal judge must “disqualify himself in any proceeding in which his
impartiality might reasonably be questioned” or “where he has a personal bias or prejudice
concerning a party.” 28 U.S.C. § 455(a), (b)(1). As explained above, § 455(b)(1) echoes § 144’s
requirement of a showing of actual personal bias, and requires disqualification only if “actual
bias or prejudice is ‘proved by compelling evidence.’” Hook v. McDade, 89 F.3d at 355. In
contrast to § 144, the movant’s “factual allegations need not be taken as true,” Glass v. Pfeffer,
849 F.2d at 1268; “[n]or is the judge limited to those facts presented by the challenging party.”
Hinman v. Rogers, 831 F.2d at 939 (citing Idaho v. Freeman, 507 F. Supp. 706 (D. Idaho
1981)).36
For a movant proceeding under § 455(a), “the test is whether a reasonable person,
knowing all the relevant facts, would harbor doubts about the judge’s impartiality.” Glass v.
Pfeffer, 849 F.2d at 1268; see Chitimacha Tribe of Louisiana v. Harry L. Laws Co., 690 F.2d
1157, 1165 (5th Cir. 1982) (a § 455(a) movant “must show that if a reasonable man knew of all
the circumstances, he would harbor doubts about the judge’s impartiality”).37

36

As Judge Callister explained in Idaho v. Freeman, “it appears appropriate for the judge
to evaluate all the facts and circumstances surrounding the alleged appearance of impartiality and
determine if a reasonable, uninvolved observer would question the judge’s impartiality.”
507 F. Supp. at 721 (footnotes omitted).
37

The Reporter for the ABA Committee that drafted the Code of Judicial Conduct (from
which the standard of subsection 455(a) is taken verbatim) explained the standard as follows:
Any conduct that would lead a reasonable man knowing all the circumstances to
the conclusion that the judge’s “impartiality might reasonably be questioned” is a
basis for the judge’s disqualification.
(continued...)
-23-

As to actual “personal bias or prejudice concerning a party” under § 455(b)(1), the
Blakelys’ motion fails for essentially the same substantive factual deficiencies pointed out under
§ 144: the court’s prior orders do not “display a deep-seated favoritism or antagonism that would
make fair judgment impossible,” Liteky, 510 U.S. at 555; the Blakelys’ conclusions, beliefs and
opinions concerning this court’s prior orders cannot suffice to prove actual personal bias by
compelling evidence; and the record contains no other evidence of actual personal bias, animus
or malice on the part of the court.
Concerning whether the court’s “impartiality might reasonably be questioned” under §
455(a) solely in light of the content of this court’s prior orders, the Liteky standard governs here
as well: “opinions formed by the judge on the basis of facts introduced or events occurring in the
course of the current proceedings . . . do not constitute a basis for a bias or partiality motion
unless they display a deep-seated favoritism or antagonism that would make fair judgment
impossible.” 510 U.S. at 555.
Considered in light of all of the circumstances surrounding the issuance of this court’s
prior orders granting summary judgment on the Blakelys’ claim for breach of the implied
covenant of good faith and fair dealing, the Blakelys’ complaints concerning the court’s
explanation of its rulings fall far short of satisfying the Liteky standard.
Plaintiffs’ counsel asserts that this court’s August 7, 2009 Order “makes many references
to documents and facts that favor USAA and unfairly ignores the facts Mr. and Mrs. Blakely
presented in their declaration in opposition to defendant’s motion for summary judge [sic] and in

37

(...continued)
E. Wayne Thode, Reporter’s Notes to Code of Judicial Conduct 100 (1973).
-24-

other evidence submitted by Plaintiffs,”38 and that the court’s December 6, 2011 Memorandum
Opinion & Order “basically gives the same summary of the facts as plaintiffs describe above as a
one sided summary of uncontested facts without giving credence to the testimony in plaintiffs’
Declarations and plaintiffs’ evidence.”39
This court’s August 7, 2009 Order and December 6, 2011 Memorandum Opinion &
Order do not make formal findings of fact. “The court is not required to state findings or
conclusions when ruling on a motion under Rule . . . 56,” Fed. R. Civ. P. 52(a)(3), and Rule 56
suggests that “[t]he court should state on the record the reasons for granting or denying” a motion
for summary judgment, but does not require it to do so. Nor does Rule 56 require the court to
provide an exhaustive recapitulation of the parties’ respective factual assertions while stating
those reasons.
As explained above, this court summarized in narrative form the sequence of events
transpiring after the August 29, 2002 fire at the Blakelys’ residence—a concise summary in the
August 7, 2009 Order and a more detailed narrative in the December 6, 2011 memorandum
opinion—accompanied in the latter instance by detailed references to the parties’ summary
judgment papers, particularly their respective DUCivR 56-1 statements of material fact. The
court’s memorandum opinion did not rehearse the parties’ more detailed factual narratives, but
cited to those narratives with paragraph-by-paragraph, fact-by-fact specificity.
As noted above, the court’s factual narrative acknowledged the Blakelys’ abiding
dissatisfaction with the extent of the floor joist restoration work performed by Phipps

38

(Blakely Mem. at 2.)

39

(Id.)
-25-

Construction and with the cleaning, repair and restoration of their home and its contents
following the fire, and that the Blakelys remained dissatisfied following USAA’s initial payment
of $93,332.20 as of July of 2003.40 In doing so, the court cited to the four-page factual narrative
set forth in ¶¶ 10-13 of the Blakelys’ opposition memorandum that detailed the specific matters
about which they complained,41 and pointed out that the Blakelys’ dissatisfaction was
uncontroverted by USAA.
The court’s detailed reference to all of the parties’ summary judgment papers—and
particularly those originally filed in 2008—belies the Blakelys’ preferred inference that this court
had “ignored” or “overlooked” or “refused to acknowledge” their factual assertions and the
record evidentiary materials upon they had relied.42 This cannot now come as a surprise to

40

(Dec. 6, 2011 Mem. Op. at 6-7 ¶¶ 9, 11 & nn. 15, 17.)

41

(Id. at 6 n.15 (citing Plaintiffs’ Memorandum in Opposition to USAA’s Motion for
Summary Judgment, filed May 16, 2011 (CM/ECF No. 147), at viii-xii ¶¶ 10-13.)
42

Indeed, this court turned to the parties’ 2008 statements of fact and exhibits in part
because after the first remand, counsel for both parties fell far short of complying with Fed. R.
Civ. P. 56 and DUCivR 56-1 in presenting their respective statements of material fact. (See Dec.
6, 2011 Mem. Op. at 30-34.) As the court of appeals noted:
The district court expressed understandable frustration with the parties’ citations
to the “record,” which were really citations to almost everything but the record,
including the district court’s 2009 Order of Dismissal, the Tenth Circuit’s opinion
in the prior appeal, and the appellate record in the prior appeal. The district court
nevertheless exercised its discretion under Federal Rule of Civil Procedure
56(c)(3) to consider materials not cited by the parties, including exhibits attached
to the parties’ prior motions. So the parties’ inadequate citations did not affect the
outcome in the district court . . . .
Order and Judgment in Blakely v. USAA Casualty Insurance Co., Case No. 11-4218, 2012 WL
5193208 (10th Cir., decided October 22, 2012) (unpublished disposition) (“Blakely Ord. &
Jgmt.”) at 6 n.3.
-26-

plaintiffs’ counsel because this court explained this in significantly greater detail in the
December 6, 2011 Memorandum Opinion & Order:
In deciding USAA’s current motion for summary judgment, this court has
exercised its discretion under Fed. R. Civ. P. 56(c)(3) to consider materials in the
record not directly cited by the parties’ memoranda, including the parties’ prior
memoranda supporting and opposing summary judgment filed in 2008, exhibits
appended to and record materials cited by those memoranda, and the parties’
stipulated list of exhibits as submitted by counsel at the Final Pretrial Conference.
The court has examined the parties’ respective Statements of Facts in some detail
and has attempted to correlate those fact statements with each other, and with the
materials in the record as contemplated by Fed. R. Civ. P. 56(c)(1)(A). Many of
those fact statements were admitted, or at least not substantially controverted, in
2008, and many were admitted or not substantially disputed in the parties’ current
summary judgment memoranda. The absence of a genuine issue of material fact
as to the Blakelys’ claim also became apparent from the record of this court’s
extended colloquy with counsel during the continuing Final Pretrial Conference. .
. . That pretrial record informs this court’s consideration of USAA’s current
motion.43
This court’s memorandum opinion noted that “[e]ven fact statements flagged as “disputed” in the
memoranda proved to be substantially uncontroverted as to the facts themselves. Often what was
actually disputed was the meaning or significance of a specific fact statement with respect to the
parties’ competing legal arguments,”44 and concluded that
[o]n the record now before this court, the undisputed material facts enumerated in
this court’s August 7th Order remain essentially uncontroverted today, though the
narrative sequence of events now benefits from further elaboration, largely
tracking the parties’ own DUCivR 56- 1(b)-(c) statements of fact having such
support as may be gleaned from the record as it exists.45
The Blakelys’ allegation that this court gave a “one sided summary of uncontested facts

43

(Dec. 6, 2011 Mem. Op. at 34 (footnotes omitted).)

44

(Id. at 34 n.65.)

45

(Id. at 37.)
-27-

without giving credence to the testimony in plaintiffs’ Declarations and plaintiffs’ evidence,”46 is
further belied by the fact that the court of appeals affirmed this court’s conclusion as to the
absence of a genuine factual dispute as to the narrative sequence of events:
Plaintiff argues the district court should not have granted summary
judgment because the facts were “disputed.” Appellant’s Br. at 21. But Plaintiff
cannot point us to any material facts that are actually in dispute. We agree with
the district court that the parties dispute merely the significance of the facts, not
the facts themselves.
Blakely Ord. & Jgmt. at 8 (emphasis added & footnote omitted).
As the Blakelys point out, the court of appeals commented that it was “troubled by the
district court’s failure to discuss a number of these material facts”47 in discussing USAA’s “fairly
debatable” defense under Utah law, and that “[b]y limiting its analysis” of that defense “to the
amount of coverage, the district court overlooked a number of pertinent facts” relied on by
plaintiffs, “such as the adjuster’s refusal to communicate and claim that he could not smell
smoke, even though we noted them in our opinion in the prior appeal.” Id. at 10. Yet this court
did refer to those facts in the context of analyzing the Blakelys’ “but for” theory as to USAA’s
“bad faith”:
The Blakelys respond that “but for USAA’s breach of its implied duties of
reasonable investigation and payment in 2003-2004, the Blakelys would never
have been forced into appraisal in 2005.” (Blakely Mem. at 1.) The Blakelys argue
that USAA’s initial underpayment of their claim “forced the Blakelys to later go
through the time and expense of an appraisal process that would have been

46

(Blakely Mem. at 5.)

47

Plaintiffs’ counsel recounts that the court of appeals “was troubled by Judge Jenkins’
refusal to acknowledge the facts that supported plaintiffs’ claim even after the Tenth Circuit
Court had recited them in its first opinion,” (Blakely Mem. at 7 (emphasis by counsel).)
At no point in its October 22, 2012 Order and Judgment did the Blakely panel say that
this court refused to acknowledge anything.
-28-

unnecessary if USAA had met its obligations regarding evaluation and payment of
the losses” pursuant to the implied covenant of good faith and fair dealing. (Id. at
6-7 (footnote omitted)). Shortly after the August 29, 2002 fire, USAA should have
undertaken to investigate, evaluate and pay the entire $291,356.52 loss amount
that the panel of appraisers ultimately found to be payable under the express terms
of USAA’s policy, without the Blakelys ever having to resort to the contractual
appraisal remedy— as they could have in November of 2002, and as they finally
did in January of 2005. Anything less was unreasonable, the Blakelys submit, and
amounts to bad faith on the part of USAA—a breach of the implied covenant of
good faith and fair dealing.
The Blakelys’ dissatisfaction with the extent of the original structural
repairs, particularly the limited replacement of charred floor joists pursuant to
the Barfuss engineering report and Phipps’ handling of cleaning and repair of
walls, ceilings, etc., as well as the Blakelys’ disagreement with the USAA
adjuster’s response to their views concerning smoke damage to many items of
personal property, (see Blakely Mem. at viii-xi ¶¶ 10-13; id. at 7), are thus
subsumed under USAA’s failure to pay nearly $300,000 at the outset of the claims
adjustment process following the August 29, 2002 fire, without waiting for the
Blakelys to resort to the appraisal remedy.48
Under Utah law as of 2011, “Whether an insured’s claim is fairly debatable under a given
set of facts is . . . a question of law,” Billings v. Union Bankers Ins. Co., 918 P.2d 461, 464 (Utah
1996), and where an insured’s claim was fairly debatable, the insurer’s denial did not breach the
implied covenant of good faith and fair dealing as a matter of law. Prince v. Bear River Mut. Ins.
Co., 2002 UT 68, ¶ 36, 56 P.3d 524, 535. Thus, “[i]f an insurer acts reasonably in denying a
claim, then the insurer did not contravene the covenant,” Id. at ¶ 28, 56 P.3d at 534 (citing 14
Lee R. Russ & Thomas F. Segalla, Couch on Insurance 3d § 207:53 (1999)), and Under Utah
law, a reasonable insurer may decline payment of a fairly debatable claim until the dispute is
resolved, e.g., through civil litigation or the appraisal process. Billings, 918 P.2d at 466-67; see

48

(Dec. 6, 2011 Mem. Op. at 20 (emphasis added & footnote omitted).) See also Blakely,
633 F.3d at 948 n.1 (“The Blakelys argue that they would not have had to invoke the appraisal
demand clause had USAA acted reasonably in assessing and paying their claim.”).
-29-

Machan v. UNUM Life Ins. Co. of America, 2005 UT 37, ¶¶ 18, 20, 116 P.3d at 346, 347.
While the implied covenant of good faith and fair dealing expects that “the insurer will
diligently investigate the facts to enable it to determine whether a claim is valid, will fairly
evaluate the claim, and will thereafter act promptly and reasonably in rejecting or settling the
claim,” Beck v. Farmers Ins. Exch., 701 P.2d 795, 801 (Utah 1985), USAA’s affirmative “fairly
debatable” defense under Utah law then extant appeared to turn on the circumstances
surrounding the insurer’s denial of the insured’s claim for a particular amount.
This court’s analysis of USAA’s “fairly debatable” defense became largely academic
when the Utah Supreme Court decided Jones v. Farmers Ins. Exch., 2012 UT 52, 286 P.3d 301.
As the court of appeals explains:
Oddly enough, the question of “[w]hether an insured’s claim is fairly debatable
under a given set of facts is . . . [a] question of law,” rather than of fact. Billings,
918 P.2d at 464. This is so, despite the fact that the “analysis of whether an
insurance claim is fairly debatable is closely related to an analysis of whether an
insurer fulfilled its duty under Beck to evaluate the claim fairly.” Jones v.
Farmers Ins. Exchange, --- P.3d ---, 2012 WL 3677052 at *4 (Utah 2012)
(footnote omitted). The Utah Supreme Court recently tried to reconcile these
contradictory notions. It clarified that although the “fairly debatable” defense is a
matter of law, it is not always appropriately decided on summary judgment. Id. at
*1. Rather, “the fairly debatable defense should not be resolved through summary
judgment if reasonable minds could differ as to whether the defendant’s conduct
measures up to the standard required for insurance claim investigations.” Id. In
such a case, the question of good faith should be presented to the jury. Id. at *5.
Thus, the question before us is whether the undisputed facts demonstrate that
“reasonable minds could differ” as to Defendant’s compliance with Beck’s
standard for good faith and fair dealing.
Blakely Ord. & Jgmt. at 8-9. Considering this case in light of Jones, the court of appeals opined
that the Blakelys’ factual allegations concerning USAA’s initial investigation “suggest that
Defendant acted unreasonably apart from the question of whether Defendant reasonably denied

-30-

Plaintiffs’ January 2005 demand,” id. at 10—that is, apart from USAA’s “fairly debatable”
defense. “The district court in this case did not have the benefit of Jones, which was decided
while this case was on appeal. But Jones is incompatible with the district court’s reasoning.” Id.
at 12. Hence the second remand of this case for further proceedings.
Both court and counsel have wrestled with the implications of the “fairly debatable”
defense during the course of this case, and both the Tenth Circuit and this court are bound to
follow the Utah Supreme Court’s latest articulation of the Utah law theory of breach of the
implied covenant of good faith and fair dealing.49 But at no point in the ongoing reasoning
process outlined above did this court “display a deep-seated favoritism or antagonism that would
make fair judgment impossible.” Liteky, 510 U.S. at 555. As borne out by the Blakelys’ most
recent appeal, adverse judicial rulings “[a]lmost invariably . . . are proper grounds for appeal, not
for recusal.” Id.

49

Examining the Jones opinion with some care, it appears that the Blakelys prevailed on
two appeals this year: acting on behalf of another client, the Blakelys’ counsel persuaded the
Utah Supreme Court in Jones to “clarify” the “fairly debatable” defense in a fashion that may
signal a significant retreat from the view that “[w]hether an insured’s claim is fairly debatable
under a given set of facts is . . . a question of law,” Billings, 918 P.2d at 464, and from its status a
complete affirmative defense warranting summary judgment. See Jones, 2012 UT 52, at ¶ 1, 286
P.3d at 302 (“We clarify that the fairly-debatable defense should not be resolved through
summary judgment if reasonable minds could differ as to whether the defendant’s conduct
measures up to the standard required for insurance claim investigations.”).
As the Blakely panel points out, “Under Utah law, ‘[w]hether there has been a breach of
good faith and fair dealing is a factual issue, generally inappropriate for decision as a matter of
law.’” Blakely v. USAA Casualty Insurance Co., Case No. 11-4218 (10th Cir., decided October
22, 2012) (unpublished disposition) at 8 (quoting Oman v. Davis Sch. Dist., 194 P.3d 956, 968
(Utah 2008) (quoting Republic Group, Inc. v. Won-Door Corp., 883 P.2d 285, 291 (Utah Ct.
App. 1994))). If compliance with the Beck standard is intrinsically a factual issue, then
“reasonable minds could differ as to whether the defendant’s conduct measures up to the
standard” in essentially every case, precluding summary judgment even though the insured’s
claim may ultimately prove to have been “fairly debatable.”
-31-

Plaintiffs’ counsel argues that “[i]n both of his rulings, Judge Jenkins summarized the
evidence in a one-sided way, stating that the evidence was uncontested. The lengthy declarations
filed by the plaintiffs described a very different picture which Judge Jenkins seemed to ignore or
found immaterial.”50 Yet the court of appeals affirmed this court’s determination that there exists
no genuine issue of material fact as to the historical sequence of events upon which the Blakelys’
“bad faith” claim is grounded, rejecting plaintiffs’ counsel’s arguments to the contrary.51
The parties know and do not genuinely dispute what happened following the August 29,
2002 fire at the Blakelys’ home, and when it happened. In effect, the facts to be proven by
probative admissible evidence in this case are already part of the record,52 and as the court of
appeals points out, the question to be resolved by the trier of fact is the legal significance of those
facts in light of the standard articulated in Beck and clarified in Jones.
“[A] reasonable person, knowing all the relevant facts” and circumstances surrounding
this court’s prior orders in this case, would not “harbor doubts about the judge’s impartiality” as
reflected by this record. United States v. Cooley, 1 F.3d at 992; Glass v. Pfeffer, 849 F.2d at
1268.

50

(Blakely Mem. at 7.) Counsel does not explain how the 2008 Blakely declarations paint
a “very different picture” of the facts from the DUCivR 56-1 statements of fact referenced in this
court’s December 6, 2011 memorandum opinion, such as Plaintiffs’ Memorandum in Opposition
to USAA’s Motion for Summary Judgment, filed May 16, 2011 (CM/ECF No. 147), at viii-xii ¶¶
10-13. (See Dec. 6, 2011 Mem. Op. at 6-7 & nn. 15, 17.)
51

Blakely Ord. & Jgmt. at 8. The court of appeals also rejected the argument of plaintiffs’
counsel that this court had applied an inappropriate “directed verdict” standard. Id. at 8 n.4 (“We
find no evidence that the district court applied this erroneous rule of law.”).
52

Given the uncontroverted factual record in this case, there appears to be minimal risk
that this court “will not rule in an unbiased way regarding various motions and objections that
will likely arise during the trial process,” as the Blakelys now allege. (Blakely Mem. at 7.)
-32-

CONCLUSION
As the court has explained in some detail, whether the Blakelys were asserting actual
personal bias under §§ 144 or 455(b)(1), or the appearance of bias under § 455(a), their
allegations do not meet their substantial burden to establish a valid basis for judicial
disqualification or recusal under either statute. There is no indication on this record that this
court had formed an opinion on the merits of the Blakelys’ claim on some basis other than what
was learned from participation in this case. Nor do this court’s prior orders “display a deepseated favoritism or antagonism that would make fair judgment impossible,” as Liteky requires.
The court of appeals has often reminded us that recusal is not to be taken lightly, and that
“a judge . . . has ‘as strong a duty to sit when there is no legitimate reason to recuse as he does to
recuse when the law and facts require.’”53 Here, the Blakelys’ unsubstantiated suggestions,
speculations, and conclusory opinions prove insufficient to establish even the appearance of any
bias, prejudice, or misconduct on the part of this court that would warrant judicial recusal.54
The Blakelys are plainly frustrated and dismayed that to date they have not obtained a
judgment against USAA on their “bad faith” claim, and that their side of the story of the August

53

Bryce v. Episcopal Church in the Diocese of Colo., 289 F.3d 648, 659 (10th Cir. 2002)
(quoting Nichols v. Alley, 71 F.3d 347, 351 (10th Cir. 1995)) see also Carpenter v. Boeing Co.,
456 F.3d 1183, 1204 (10th Cir. 2006) (same). Indeed, “The recusal statute should not be
construed so broadly as to become presumptive or to require recusal based on unsubstantiated
suggestions of personal bias or prejudice.” Id. at 659-60 (citing Switzer v. Berry, 198 F.3d 1255,
1258 (10th Cir. 2000)); see also United States v. Cooley, 1 F.3d at 993 (“The statute is not
intended to give litigants a veto power over sitting judges, or a vehicle for obtaining a judge of
their choice.”).
54

See Hinman v. Rogers, 831 F.2d at 939 (“A judge should not recuse himself on
unsupported, irrational, or highly tenuous speculation.”).
-33-

29,2002 fire has yet to prevail on the merits before this COurt. 55 But as the court of appeals
points out, the legal winds shifted in Jones, and the Blakelys' day to present their claim to a jury
draws near. The outcome will then be for the jury to decide.
For the reasons explained above,
IT IS ORDERED that Plaintiffs' Motion to Have Judge Recuse Himself and Have
Another Judge Assigned, filed November 2,2012 (CMlECF No. 161) is DENIED.
IT IS FURTHER ORDERED that the above-captioned proceeding is hereby calendared
for a Status and Scheduling Conference on January 18,2013 at 1:30 p.m.

~
DATED this ~ day of December, 2012.

BY THE COURT:

55Greenv. Dorrell, 969 F.2d at 919 ("[A]dverse rulings against a litigant cannot in
themselves form the appropriate grounds for disqualification."):
-34­