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Lease v. Fishel

October 22, 2010


The opinion of the court was delivered by: Chief Judge Kane


Before the Court are motions for attorneys' fees by Defendants George Taughinbaugh ("Taughinbaugh") and Ron Plank ("Plank") (Doc. No. 64), and for recusal of the undersigned and Magistrate Judge Martin C. Carlson filed by Attorney Don Bailey (Doc. No. 93). Judge Carlson has issued a memorandum and order granting the motion for attorneys' fees in part and denying the motion to recuse as to himself. (Doc. Nos. 105-06.) Judge Carlson's ruling is now before this Court for review as Mr. Bailey has filed timely objections (Doc. No. 111), which Taughinbaugh and Plank have opposed (Doc. No. 115). For the reasons that follow, the Court will deny the motion to recuse the undersigned and affirm Judge Carlson's ruling on the two motions.


On October 5, 2009, the Court referred Defendant Taughinbaugh and Defendant Plank's pending motion for attorneys' fees to Magistrate Judge Carlson. The request for attorneys' fees was based on this Court's finding that attorney Don Bailey had violated Rule 11(b) of the Federal Rules of Civil Procedure by bringing frivolous claims against these Defendants in the original complaint.*fn1 (Doc. No. 63.) Upon receiving the Court's referral, Judge Carlson set a supplemental briefing schedule to allow Mr. Bailey to specifically dispute fees and costs claimed by Defendants. (Doc. No. 87.) Mr. Bailey sought an extension of time to submit this supplemental brief, which was granted. (Doc. Nos. 88-89.) After Mr. Bailey failed to submit any supplemental response over a month past his extended deadline, Judge Carlson issued an order directing Mr. Bailey to show cause for the delay. (Doc. No. 90.) In lieu of a response to Judge Carlson's order to show cause, Mr. Bailey filed a motion for recusal of both Judge Carlson and the undersigned. (Doc. No. 93.) In his ruling on these matters, Judge Carlson rejected Mr. Bailey's motion for recusal as to him and directed Mr. Bailey to pay $10,000 in attorneys' fees to Barley-Snyder, LLC. (Doc. Nos 105-06.) Mr. Bailey has filed an objection to Judge Carlson's order. (Doc. No. 111.) Before reviewing Judge Carlson's ruling, the Court will address the pending motion for recusal.


The central theme of Mr. Bailey's motion for recusal is put forward in the first paragraph of the motion: he disagrees with the sanctions imposed against him and believes the Court "did not act objectively to begin with. [sic] Or at least evidence so indicates." (Doc. No. 93 ¶ 1.) Unfortunately, the so-called evidence of bias to which he refers is far from clear. Mr. Bailey's first apparent piece of evidence relates to events occurring several years ago during an unrelated lawsuit ("Brown Lawsuit"), in which Mr. Bailey represented the plaintiff and the undersigned was named as a defendant. (Id. ¶¶ 2-8.) Mr. Bailey explains that after deposing the undersigned, he "concluded that Judge Kane was not responsible" and moved to dismiss the claims against her. (Id. ¶ 6.) Almost a decade later, on June 26, 2009, the undersigned spoke at a continuing legal education course regarding trial practice and advocacy in the Middle District of Pennsylvania. (Id. ¶ 9.) Mr. Bailey alleges that the undersigned improperly referred to him in some comments made to the audience during the course. (Id.) Mr. Bailey apparently did not attend the course in question, as he supports this allegation with an attached document purporting to be a statement authored and signed by attorney Karen R. Grigsby. (Doc. No. 93-2, Ex. A.) According to Ms. Grigsby's account of the course, the undersigned, in the midst of a discussion about the benefits of cases moving faster in federal court, referred to the Brown Lawsuit:

[Judge Kane] began by stating to the audience that she was sued in district court several years ago and that the case was removed to the Delaware District Court. She further stated, 'Don Bailey filed all these motions. And I had nothing to do with getting the women fired.' (Id.) Ms. Grigsby further noted that she believed the remarks were made with sarcasm and that the audience laughed at the comments. (Id.) Mr. Bailey argues that these comments were made "to denigrate and attack Don Bailey as a lawyer in front of his colleagues, casting him in a false light." (Doc. No. 93 ¶ 9.)

Beyond the allegations related to the above comments, Mr. Bailey also relies on assertions made in another document attached to his motion. Though the document purports to be an affidavit from Andrew Ostrowski, it is unsigned and contains numerous blank spaces.

(Doc. No. 93-2, Ex. B.) Mr. Ostrowski asserts in this document that, on an undisclosed date in 2009, he and Mr. Bailey had a scheduled telephone conference on an unrelated case before this Court. Mr. Ostrowski states in the document that "[w]hen Judge Kane entered the telephone conference, the first thin [sic] she said, in what can only be described a [sic] sing-songy and childish manner 'hello Mr. Bailey, how are you today.'" (Id.) Mr. Ostrowski goes on to comment that the undersigned "sounded like a schoolgirl" when greeting Mr. Bailey. (Id.)

Title 28 U.S.C. § 455(a)*fn3 requires that a judge must recuse "in any proceeding in which his impartiality might reasonably be questioned." The litigant seeking recusal does not need to show actual bias under this standard. Selkridge v. United of Omaha Life Ins. Co., 360 F.3d 155, 167 (3d Cir. 2004). Rather, "if a reasonable man, were he to know all the circumstances, would harbor doubts about the judge's impartiality under the applicable standard, then the judge must recuse." Id. On this issue, the Supreme Court has held:

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 extra-judicial source; and can only in the rarest circumstances evidence the degree of favoritism or antagonism required (as discussed below) when no extra-judicial 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.

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 extra-judicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.

Liteky v. United States, 510 U.S. 540, 555 (1994). Of course, a party's displeasure with legal rulings does not form an adequate basis for recusal. Securacomm Consulting, Inc. v. Securacom Inc., 224 F.3d 273, 279 (3d Cir. 2000).

The Court does not find that a reasonable person, knowing all the circumstances that could be gleaned from reviewing the unsworn, incomplete, and careless submissions of counsel, would reasonably harbor doubts about the undersigned's impartiality. Though the undersigned does not recall making the purported references at the seminar in question, none ...

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