Moreover, a judge is immune from suit on a claim predicated on his refusal or failure to recuse himself in a case which he otherwise has jurisdiction to adjudicate, whatever his motive. Plaintiff's contention that the failure of a judge to recuse himself is not a "judicial act" is objectively unreasonable, insupportable and legally frivolous. The two cases cited by plaintiff in support of this contention simply stand for no such proposition.
The first case is Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145, 21 L. Ed. 2d 301, 89 S. Ct. 337 (1968). The issue of judicial immunity was never raised or discussed in that case which concerned the failure of a neutral arbitrator to disclose his close financial relationship with a party involving the very projects underlying the parties' dispute. The Court held only that this failure to disclose warranted vacatur of the arbitral award under the federal Arbitration Act. Id. at 148-49. The Court did not suggest that the arbitrator could be sued for damages in the circumstances.
The second case is Tumey v. State of Ohio, 273 U.S. 510, 71 L. Ed. 749, 47 S. Ct. 437 (1927). The issue of judicial immunity was never raised or discussed in this case. The plaintiff in Tumey was convicted of a criminal offense and fined by a quasi-judicial officer whose income depended on the collection of fines from persons convicted. Not surprisingly, the Court found that the officer thus had the type of direct, personal, substantial pecuniary interest in the outcome of the plaintiff's criminal case which triggers due process concerns. Id. at 531. The Court held that the plaintiff was entitled to have his conviction set aside. The Court did not suggest that the adjudicating official could be sued for damages for declining to disqualify himself.
Every court to address the question in a reported opinion has held that a failure to recuse is a judicial act for purposes of absolute immunity. See Callahan v. Rendlen, 806 F.2d 795, 796 (8th Cir. 1986); Schiff v. Dorsey, 877 F. Supp. 73, 76 (D. Conn. 1994); Sato v. Plunkett, 154 F.R.D. 189, 191 (N.D. Ill. 1994); Font v. Dapena Yordan, 763 F. Supp. 680, 682 (D.P.R. 1991); Iseley v. Bucks County, 549 F. Supp. 160, 164-65 (E.D. Pa. 1982). See also Schafer v. Buhl, 1994 U.S. Dist. LEXIS 16349, 1994 WL 669688, *2 (W.D. Mich. Oct. 21, 1994) (decisions regarding recusal are "indisputably" judicial acts); Kenard v. Nussbaum, 1988 U.S. Dist. LEXIS 1328, 1988 WL 25240, *2 (S.D.N.Y. Feb. 26, 1988).
As a practical matter, it would be a rare civil defendant who declined to avail himself of any defense or immunity provided by law. Nevertheless, as judicial immunity is a defense which theoretically may be waived if not asserted, it is at least arguable that Ms. Rhodes did not violate Rule 11(b)(2) merely by filing the damage claim against Justice Nigro. See Boyd v. Carroll, 624 F.2d 730, 732-33 (5th Cir. 1980); Johnson v. Miller, 925 F. Supp. 334, 341 (E.D. Pa. 1996); Mason v. Twenty-Sixth Judicial District of Kansas, 670 F. Supp. 1528, 1529-30 (D. Kan. 1987). Because it would be so extraordinary for a party to decline the protection of absolute immunity, however, defendant's argument that the complaint in this case must have been filed to embarrass and harass him carries some force. That would be a violation of Rule 11(b)(1).
In any event, it was not reasonable for counsel to persist with the damage claim after defendant expressly asserted judicial immunity by motion and specifically alerted counsel consistent with Rule 11(c)(1)(A). See Campana v. Muir, 786 F.2d 188, 191 (3d Cir. 1986) (attorney's persistence in prosecuting damage claim against judge for judicial action after he asserted immunity was legally unreasonable and warranted imposition of monetary sanctions); Isakson v. First Nat. Bank of Sioux Falls, 985 F.2d 984, 986 (8th Cir. 1993) (prosecution of § 1983 damage claim against judge for allegedly colluding with attorneys improperly to rule against plaintiff in state foreclosure action warrants Rule 11 monetary sanctions).
The breach by counsel of Rule 11, however, does not automatically require the imposition of monetary sanctions. See Fed. R. Civ. P. 11(c)(2). "The court has significant discretion in determining what sanctions, if any, should be imposed for a violation." Rule 11(c) Advisory Committee Notes, 1993 Amendments. The court may issue "an admonition, reprimand or censure" in lieu of a fine or other monetary sanction. Id. Courts generally consider whether the offending conduct was willful, wether it was part of a pattern of such conduct, whether counsel has engaged in similar conduct in the past, whether the conduct was intended to injure, what effect the conduct had on the time or expense of the litigation and overall what is a sufficient sanction to deter repetition of such conduct. Id.
There has been no showing or suggestion that counsel engaged in a pattern of violative conduct or in similar conduct in other litigation. The court cannot conclude that counsel willfully violated Rule 11. As noted, defendant suggests with some force that counsel's intent must have been to injure him. This is not an unreasonable inference, however, it appears just as likely that counsel lost sight of the important distinction between creative arguments and fanciful ones. Aside from the effort and expense in seeking sanctions, defendant did not incur any appreciable expense or burden in this litigation after the time he categorically asserted by motion his immunity from suit.
The court concludes that an admonition should be sufficient to deter plaintiff's counsel and other attorneys with professional pride from engaging in similar conduct in the future and is the most appropriate response to defendant's motion in the circumstances presented.
ACCORDINGLY, this day of May, 1998, upon consideration of defendant's Motion for Imposition of Rule 11 Sanctions (Doc. # 6) and plaintiff's response, insofar as defendant seeks monetary sanctions, IT IS HEREBY ORDERED that said Motion is DENIED, however, counsel is admonished to exercise more care in the future to ensure her faithful compliance with the strictures of Rule 11.
BY THE COURT:
JAY C. WALDMAN, J.
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