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BUMPUS v. UNIROYAL TIRE CO. DIV. OF UNIROYAL

December 2, 1974

BETH ANN BUMPUS, BARRY DALE BUMPUS, LARRY ALLEN BUMPUS, minors, by their parents and natural guardians BOBBY G. BUMPUS and MINNIE E. BUMPUS, in their own right.
v.
UNIROYAL TIRE CO. DIVISION OF UNIROYAL, INC.



The opinion of the court was delivered by: DAVIS

 DAVIS, S.J:

 Defendant has filed a Motion for Disqualification of the Trial Judge under the provisions of 28 U.S.C. § 144 because of an alleged personal bias in favor of the plaintiffs in this case. Such a motion is properly addressed to and ruled upon by the Judge himself. United States v. Bell, 351 F.2d 868 (4th Cir. 1965), cert. denied 383 U.S. 947, 86 S. Ct. 1200, 16 L. Ed. 2d 210, I have therefore given the matter most careful consideration, but because the supporting affidavit is insufficient as a matter of law, for the reasons to be stated, the motion will be Denied.

 While not the sole basis for my decision herein, certain procedural deficiencies necessarily affect consideration of this motion. Defendant initially filed the motion supported by an affidavit of its counsel. Title 28, Section 144, which permits the removal of a Judge for bias or prejudice, however, provides as follows:

 
§ 144. Bias or prejudice of judge
 
Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.
 
The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

 Since the plain language of the statute denotes a procedure available only upon the filing of an affidavit of "a party to any proceeding", the affidavit of the defendant's attorney did not satisfy the statutory requirement, and on that basis the motion could well have been denied. See, United States ex rel. Wilson v. Coughlin, 472 F.2d 100 (7th Cir. 1973); Giebe v. Pence, 431 F.2d 942 (9th Cir. 1970).

 Subsequently, defendant submitted an affidavit of a corporate Assistant Secretary incorporating by reference, upon information and belief, all of the averments of its counsel's affidavit. Whether or not this additional affidavit has cured the former procedural defect is unimportant to the decision on the motion, and I will assume it is sufficient in form. Cf. Berger v. United States, 255 U.S. 22, 41 S. Ct. 230, 65 L. Ed. 481 (1921).

 But the statute also requires that the disqualification affidavit be timely filed, and here too, the motion is procedurally defective. The circumstances which are alleged to have demonstrated bias occurred from two weeks to as far back as two months before the filing of this motion. While it is true that the failure to file the affidavit 10 days before the time at which the matter is to be heard may be excused for "good cause", *fn1" the defendant has not acted with the requisite diligence in seeking the disqualification. See, Bradley v. School Board of City of Richmond, Va., 324 F. Supp. 439 (E.D. Va., 1971). As expressed by the Court in Bradley at page 443:

 
"The purpose, of course, of a time requirement as provided in Section 144 is to establish an essential procedural safeguard by impeding the use of Section 144 as a delaying tactic."

 See, also, Peckham v. Ronrico Corporation, 288 F.2d 841 (1st Cir. 1961).

 It may be said, of course, that it is inconsistent with the interests of justice in most cases to reject any motion purely on the basis of procedural technicalities. But our courts have long recognized that, in this sensitive area of claimed partiality on the part of a Judge, strict construction of the statutory provisions is essential to prevent abuse and to insure the orderly functioning of the judicial system. See for example, United States v. Womack, 454 F.2d 1337 (5th Cir. 1972); Peckham v. Ronrico Corp., 288 F.2d 841 (1st Cir. 1961); Scott v. Beams, 122 F.2d 777 (10th Cir. 1941), cert. denied 315 U.S. 809, 62 S. Ct. 794, 86 L. Ed. 1209; Town of East Haven v. Eastern Airlines, Inc., 304 F. Supp. 1223 (D. Conn. 1969); United States v. Gilboy, 162 F. Supp. 384 (M.D. Pa., 1958). These policies would be enough to justify the denial of defendant's motion because of its procedural flaws alone. In this particular case, however, defendant's affidavit is wholly devoid of substantive merit as well.

 The essential averment in the affidavit is that the Trial Judge was at one time, more than eleven years ago, a law partner of one of plaintiffs' counsel. In light of this former association, the affiant charges that by my decision to grant a continuance at the request of plaintiffs earlier in the case and my subsequent decision to deny a ...


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