of bias or prejudice must set forth specific facts including time, place, persons and circumstances. Id. at 1074.
Defendants filed a joint recusal motion with respect to both the Shank and Benner cases. The motion and affidavit, however, were not timely. An affidavit is untimely when the party significantly invokes participation by the court in pretrial motions or other judicial proceedings between the time he first learned of the asserted prejudice and the time the § 144 motion was filed. Smith v. Danyo, 585 F.2d 83, 86 (3d Cir. 1978); Samuel v. University of Pittsburgh, 395 F. Supp. 1275, 1279 (W.D. Pa. 1975), vacated on other grounds, 538 F.2d 991 (3d Cir. 1976). The affidavit asserts that defendants first became aware of my alleged prejudice at a hearing in the Benner case on December 9, 1982. Defendants' recusal motion, however, was not filed until June 7, 1983. In the intervening six month period, defendants in the Benner case (1) moved for a discovery conference; (2) moved to compel an inspection of the vehicle described in plaintiff's complaint and for a protective order to preclude discovery of information obtained as a result of such inspection; (3) filed a praecipe to withdraw a previous motion; (4) participated in a discovery conference; (5) filed an answer to plaintiff's amended complaint; (6) answered four motions or requests filed by plaintiff; (7) filed supplemental interrogatories; and, (8) filed three sets of answers and objections to plaintiff's interrogatories. In all, defendants made sixteen filings in the Benner case between December 9, 1982, and June 7, 1983. There is no room for argument that defendants did not affirmatively invoke the participation of this court between the time they first learned of the alleged bias and the time they filed the § 144 motion.
In the same six month period in the Shank case,
defendants (1) participated in a pre-trial conference at which there was extensive discussion of the discovery problems encountered in the case; (2) moved to compel discovery; (3) submitted a stipulation providing defendants with an extension of time to respond to plaintiffs' motion to compel; (4) answered plaintiffs' motion to compel more sufficient answers to interrogatories; and (5) participated in a discovery conference scheduled by me to resolve plaintiffs' motion to compel. Thus, similar to the Benner case, defendants affirmatively invoked the participation of this court between the time they first learned of the alleged bias and the time they filed the § 144 motion. The motion is untimely in both cases.
B. Extrajudicial Origin
Because defendants have also suggested that I recuse myself, mea sponte, under 28 U.S.C. § 455, I did not rely solely on the untimeliness of their § 144 affidavit.
This circuit has specifically held that only extrajudicial bias forms a basis for recusal under either § 144 or § 455. Johnson v. Trueblood, 629 F.2d 287, 290-91 (3d Cir. 1980), cert. denied, 450 U.S. 999, 101 S. Ct. 1704, 68 L. Ed. 2d 200 (1981). Other circuits agree. United States v. Cowden, 545 F.2d 257, 265 (1st Cir. 1976), cert. denied, 430 U.S. 909, 97 S. Ct. 1181, 51 L. Ed. 2d 585 (1977); In re International Business Machines Corp., 618 F.2d 923, 928 (2d Cir. 1980); Davis v. Board of School Commissioners, 517 F.2d 1044, 1052 (5th Cir. 1975), cert. denied, 425 U.S. 944, 96 S. Ct. 1685, 48 L. Ed. 2d 188 (1976); City of Cleveland v. Krupansky, 619 F.2d 576, 578 (6th Cir.), cert. denied, 449 U.S. 834, 101 S. Ct. 106, 66 L. Ed. 2d 40 (1980); United States v. Olander, 584 F.2d 876, 882 (9th Cir. 1978), vacated on other grounds, 443 U.S. 914, 99 S. Ct. 3104, 61 L. Ed. 2d 878 (1979); United States v. Haldeman, 181 U.S. App. D.C. 254, 559 F.2d 31, 132 n.297 (D.C. Cir. 1976), cert. denied, 431 U.S. 933, 97 S. Ct. 2641, 53 L. Ed. 2d 250 (1977). The affidavit filed here fails to meet this requirement.
In evaluating the legal sufficiency of an affidavit, the court may not question either the truth of the allegations or the good faith of the pleader. United States v. Townsend, supra, 478 F.2d at 1073; Resident Advisory Bd. v. Rizzo, 510 F. Supp. 793, 797 (E.D. Pa. 1981). The court, however, "does not need to consider the allegations that the judge has personal bias and prejudice as being factual allegations as these are only conclusory." Action Realty Co. v. Will, 427 F.2d 843, 844 (7th Cir. 1970). Cf. United States v. Townsend, supra, 478 F.2d at 1074. So here, the mere unsupported allegation of extrajudicial origin of the alleged bias is purely conclusory. There are no "facts including time, place, persons, and circumstances," United States v. Townsend, supra, set forth which lend factual underpinnings to a conclusion that the charged bias was not judicially acquired.
Indeed, the very statement on which defendants rely shows on its face that its origin was judicial. "Automobile manufacturers are among the most devious groups of defendants I have ever seen in twenty-one years on the Bench." That statement itself shows that my feeling arose from my experience as a judge. And the very next sentence
shows affirmatively that the statement had a judicial origin.
A judicial attitude even though developed partly through previous experience on the bench, and not wholly as a result of participation in the instant case, cannot serve as a basis for recusal. As stated in United States v. Sinclair, 424 F. Supp. 715, 718 (D.Del. 1976), aff'd, 566 F.2d 1171 (3d Cir. 1977):
It is . . . clear that a claim of bias or prejudice based on judicial knowledge gained from prior hearings or other cases is not sufficient grounds for disqualification of a judge whether it be from prior judicial exposure to the defendant or prior judicial rulings adverse to the defendant in the same or different cases (emphasis added).