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GRAND ENTERTAINMENT GROUP v. ARAZY

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


October 30, 1987

Grand Entertainment Group, Ltd., et al.
v.
Ariel Arazy, et al.

The opinion of the court was delivered by: NEWCOMER

MEMORANDUM

 Newcomer, J.

 This case involves the distribution of various video cassettes including Half A Loaf of Kung Fu, Joy of Letting Go, Andy Warhol's Dracula, Love and the Midnight Auto Supply, and Sensuous Susanne. See Complaint at para. 8; Distribution Agreement at Exhibit A.

 Presently before the Court is defendant Ariel Arazy's motion to disqualify the judge. Defendant bases the motion on two statutes: 28 U.S.C. §§ 144, 455. *fn1" Defendant has supported his motion with two affidavits, one completed by the defendant, himself, and one completed by his counsel Robert E. Smith.

 A summary of the affidavits follows.

 Mr. Arazy stated that Matthew Wax, who is associated with the plaintiff corporations, personally told defendant Arazy that:

 1. Judge Newcomer "likes" Mr. Wax. See Declaration of Arazy at para. 4(a);

 2. Judge Newcomer stated he would not permit the present action to drag out and would commence a trial in the near future. Id. at P 4(c).

 3. Judge Newcomer "dislikes" defendant, Mr. Smith, and Mr. Gerber, and wanted to prevent Smith from proceeding as Arazy's counsel. Id. at PP 4(b), 4(d).

 4. Judge Newcomer was "somewhat" aware of Wax's supposed generosity on behalf of children in the Philadelphia area. Id. at P 4(a).

 5. Judge Newcomer had refused to permit a California attorney, Mr. Lloyd Robinson, to conduct the trial on behalf of the defendants in a separate case, Wax v. Infante, No. 87-1628 (E.D. Pa. 1987) (and previous related litigation) (hereinafter " Infante litigation"), involving Mr. Wax and the distribution rights of video cassettes. Id. at P 7;

 6. Judge Newcomer ruled in favor of Wax in the Infante litigation. Id. at P 8.

 Mr. Smith, defendant Arazy's counsel, has averred the following:

 1. Wax and Arazy met together at E. Parry Warner's law office on October 1, 1987. See Smith Affidavit at para. 2, 6.

 2. Wax did not deny that he made such comments when Smith confronted Wax with the purported statements. Id. at P 6.

 3. Smith talked with a California video distributor, Harry Young, who stated that Wax is well connected to Philadelphia judges. Id. at P 7.

 4. Smith did not file the motion for the purposes of delay and does not believe the motion to be frivolous. Id. at P 8. However, Mr. Smith did not certify that the motion was made in good faith as required by statute. See 28 U.S.C. § 144.

 The moving papers also allege that Mr. Wax told Mr. Arazy that Judge Newcomer had "forced a settlement" in the Infante litigation, and "accelerated judgment" against Video Gems, a defendant in the Infante litigation, which forced that company into bankruptcy. See Motion at paras. 1(a), 1(e). The court shall not consider such allegations in reviewing the present motion. First, these allegations were not made under penalty of perjury. Second, these allegations were not made by Mr. Arazy, the only person present during the conversation other than the alleged declarant, Mr. Wax. Rather, these allegations were made only by attorney Smith in the moving papers and are not contained in Arazy's Declaration. Since Mr. Arazy's Declaration concerning the Wax-Arazy conversation does not contain any such allegations, I conclude that they are not germane to the present motion.

 Having set forth the operative facts, the court will now examine the legal standards applicable to 28 U.S.C. §§ 144, 455(a), 455(b)(1).

 STANDARD

 In reviewing a motion made pursuant to 28 U.S.C. § 144, *fn2" the court shall consider only the legal sufficiency of the facts alleged to ascertain whether or not the facts alleged support the charge of bias. *fn3" The court may not question the truth of the allegations or the good faith of the pleader, regardless of the judge's personal knowledge to the contrary. *fn4"

 The test is whether, assuming the truth of the facts alleged, a reasonable person would conclude that the judge has a personal bias. *fn5" In applying this test, courts have held that, to be sufficient, the affidavit must set forth relevant facts including the time, place, persons, circumstances, and the extra-judicial statements or actions of the judge which would call into question the impartiality of the judge. *fn6" Precedent emphasizes that mere conclusions, opinions, rumors, or vague gossip are insufficient. I also note that courts have discounted disqualification motions supported by statements made by attorneys or parties which contain hearsay and are completely devoid of any allegations concerning actual extra-judicial statements or actions attributed to the judge. *fn7"

 Defendant also bases his motion on 28 U.S.C. § 455(a). Under § 455(a) if there exists a "reasonable factual basis for doubting the judge's impartiality, he should disqualify himself and let another judge preside over the case." *fn8" Both 28 U.S.C. § 144 and 28 U.S.C § 455(a) should be construed together and serve to combat the same type of bias, namely, personal/extra-judicial bias. *fn9"

 The filing of a motion for recusal accompanied by an affidavit does not automatically work to disqualify the target judge. While the judge has an affirmative duty to disqualify himself should the affidavit set forth sufficient allegations concerning bias, the judge has an equally affirmative duty to retain the case should the affidavit lack sufficient allegations or fail to generate a reasonable doubt concerning the judge's impartiality. Thus, the judge must carefully examine the allegations before acting on the motion.

 APPLICATION

 Applying the above standards to the allegations of Messrs. Arazy and Smith, I conclude that the recusal motion should be denied. First, the two affidavits lack any allegations of extra-judicial statements or actions attributed to the Court. *fn10" Second, the motion rests solely on affidavits which detail vague or irrelevant statements made by Wax and Young, the video distributor. Turning to Young's statement, it may be characterized as nothing more than vague gossip or conclusions and quickly disregarded. Moving on to the statements attributed to Wax, the statement that the Court "likes" Wax lacks the requisite specific facts concerning time, place, and circumstances. This statement, too, may be discounted because of its conclusory nature. *fn11" I reach the same conclusion with respect to Wax's statement that the Court "dislikes" Mr. Azary and attorneys Smith and Gerber.

 With respect to the statement that the court is somewhat aware of Mr. Wax's alleged beneficence, I determine that such a bald statement is insufficient for the purposes of the present motion. The fact that a judge may be aware that a party or an attorney appearing before the court has engaged in philanthropy should not, by itself, mandate the recusal of that judge.

 The statements that the court issued a schedule to insure the resolution of this action in a timely manner, presided over the Infante litigation, precluded Lloyd Robinson, Esquire from conducting a prior trial, and is planning, in the future, to disqualify attorney Smith, do not constitute personal or extra-judicial statements or actions by the court, but, rather, concern actions taken by the court after examining the evidence and legal precedent. Actions taken after reviewing the applicable legal standards and the evidentiary record, as opposed to extra-judicial actions, will not support recusal. *fn12"

  Accordingly, under the standards applicable to 28 U.S.C. § 144, I believe that the allegations are insufficient; under the standards applicable to 28 U.S.C. § 544, I conclude that the allegations do not rise to the level of establishing a reasonable doubt concerning this court's impartiality. The recusal motion should be denied. *fn13"

 An appropriate order follows.

 ORDER

 AND NOW, this 30th day of October, 1987, it is hereby Ordered that:

 1. Defendant Arazy's motion for disqualification is DENIED.

 2. Defendant Arazy's motion for a continuance is DENIED.

 AND IT IS SO ORDERED.


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