Regions Bank v. Legal Outsource PA

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 29, 2020
• Docket: 19-12269
• Status: Unpublished

Opinion

Case: 19-12269 Date Filed: 01/29/2020 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-12269 Non-Argument Calendar ________________________

D.C. Docket No. 2:14-cv-00476-PAM-MRM

REGIONS BANK, an Alabama state-chartered bank,

Plaintiff–Counter Defendant Appellee,

versus

LEGAL OUTSOURCE PA, a Florida professional association, PERIWINKLE PARTNERS, LLC, A Florida limited liability company, et al.,

Defendants–Counter Claimants Appellants.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(January 29, 2020) Case: 19-12269 Date Filed: 01/29/2020 Page: 2 of 5

Before WILLIAM PRYOR, MARTIN, and ROSENBAUM Circuit Judges.

PER CURIAM:

Charles and Lisa Phoenix and their companies, Legal Outsource PA and

Periwinkle Partners, LLC, appeal the denial of their motion to recuse. We recently

affirmed the underlying judgment against the Phoenixes and their companies, see

Regions Bank v. Legal Outsource PA, 936 F.3d 1184 (11th Cir. 2019), as well as

the denial of their motion to vacate the judgment in favor of Regions Bank and an

award of attorney’s fees and costs to Regions, see Regions Bank v. Legal

Outsource PA, 777 F. App’x 476 (2019). The obligors now argue that the district

judge was pervasively biased against them throughout the trial. The district court

denied the motion to recuse as “utterly without merit.” It added that the obligors’

“losses in this lawsuit stem not from any preconceived bias against them, but from

the fact that neither the law nor the facts supported the arguments they made.” We

affirm.

We review for an abuse of discretion the denial of a motion to recuse.

Draper v. Reynolds, 369 F.3d 1270, 1274 (11th Cir. 2004). “When employing an

abuse-of-discretion standard, we must affirm unless we find that the district court

has made a clear error of judgment, or has applied the wrong legal standard.”

United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en banc).

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The obligors argue that the district judge should have recused himself under

two statutes, 28 U.S.C. §§ 144, 455. Section 144 mandates that a district judge

“shall proceed no further” when “a party . . . makes and files a timely and

sufficient affidavit that the judge . . . has a personal bias or prejudice” for or

against any party. Id. § 144. “To warrant recusal under § 144, the moving party

must allege facts that would convince a reasonable person that bias actually

exists.” Christo v. Padgett, 223 F.3d 1324, 1333 (11th Cir. 2000). Section 455

requires recusal when a district judge’s “impartiality might reasonably be

questioned” or when the district judge “has a personal bias or prejudice concerning

a party.” 28 U.S.C. § 455(a), (b)(1). “Under § 455, the standard is whether an

objective, fully informed lay observer would entertain significant doubt about the

judge’s impartiality.” Padgett, 223 F.3d at 1333.

The district court did not abuse its discretion when it denied the obligors’

motion to recuse because their motion was untimely. See 28 U.S.C. § 144

(requiring affidavits alleging bias to the “timely”); United States v. Siegelman, 640

F.3d 1159, 1188 (11th Cir. 2011) (holding that untimeliness “is itself a basis upon

which to deny” a motion for recusal under section 455). The obligors’ motion

came almost a year after the district court’s last ruling in their case, long after they

had the information that underpins their recusal motion. Their motion “has all the

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earmarks of an eleventh-hour ploy based upon [their] dissatisfaction with the jury's

verdict and the judge's post-trial rulings.” Siegelman, 640 F.3d at 1188.

The obligors’ motion is also meritless. The litany of examples that they cite

as evidence of purported bias fall into two categories: rulings and statements of the

district judge. But neither warrant recusal here.

First, “judicial rulings alone almost never constitute a valid basis for a bias

or partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994). All of

obligors’ assertions that various rulings of the district court establish bias rely

heavily on speculation and most are conclusory. And this Court has already

affirmed some of the rulings that the obligors allege show bias; indeed, we

affirmed one of these rulings after concluding that the obligors’ challenge to it was

frivolous. See Regions Bank, 777 F. App’x at 478. So this appeal is not one of the

“rarest circumstances” in which judicial rulings “evidence the degree of favoritism

or antagonism required [for recusal] . . . when no extrajudicial source is involved.”

Id.

Second, every statement that the obligors identify as sources of bias—for

example, the district judge’s comment that the obligors’ “litigation tactics are

nothing short of abhorrent”—are at most “expressions of impatience,

dissatisfaction, annoyance, and . . . anger,” which are not grounds for recusal. Id. at

555–56. “[O]pinions formed . . . on the basis of facts introduced or events

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occurring in the course of current proceedings” will not sustain a recusal motion

“unless they display a deep-seated favoritism or antagonism that would make fair

judgment impossible.” Id. at 555. The obligors have not proved judicial bias, much

less that the district court abused its discretion.

This appeal is the obligors’ third attempt to challenge the district court’s

rulings against them. Although it is clear that they vehemently oppose these

rulings, any animosity they may hold toward the district judge is not a valid reason

to force disqualification or otherwise overturn the final judgment against them. See

FDIC v. Sweeney, 136 F.3d 216, 220 (1st Cir. 1998). The obligors must recognize

that “[a]t some point all litigation must end.” Jimenez v. S.D. Fla., 84 S. Ct. 14, 19

(1963) (Goldberg, J., in chambers).

We AFFIRM the denial of the motion to recuse.