Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit
2-24-2004
Selkridge v. United Omaha Life Precedential or Non-Precedential: Precedential
Docket No. 03-1146
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation "Selkridge v. United Omaha Life" (2004). 2004 Decisions. Paper 942. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/942
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. Terry M. Halpern PRECEDENTIAL Suite 314 9003 Havensight M all Charlotte Amalie, St. Thomas, USVI UNITED STATES 00802 COURT OF APPEALS Attorneys for Appellant FOR THE THIRD CIRCUIT Charles E. Engeman Simone R.D. Francis (Argued) NOS. 03-1146 and 03-1147 Ogletree, Deakins, Nash, Smoak & Stewart 1336 Beltjen Road, Suite 202 MARGARITA SELKRIDGE Charlotte Amalie, St. Thomas, USVI Appellant 00802 Attorneys for Appellee v.
UNITED OF OMAHA LIFE INSURANCE COMPANY OPINION OF THE COURT
On Appeal From the District Court of the Virgin Islands STAPLETON, Circuit Judge: (D.C. Civil Action No. 01-cv-00143) District Judge: Hon. Thomas K. Moore Margarita Selkridge (“Selkridge”) filed a lawsuit against United of Omaha Life Insurance Company (“Omaha”) on several Argued December 8, 2003 state-law theories alleging that she had been wrongfully denied benefits under her BEFORE: NYGAARD, BECKER and disability plan. (“Selkridge I.”) After the STAPLETON, Circuit Judges District Court granted summary judgment on all of those theories in favor of the sole (Opinion Filed February 24, 2004) defendant, Selkridge chose not to appeal that decision. Instead, she filed a new lawsuit that asserted a claim “arising under” the Employee Retirement Income Lee J. Rohn Security Act (“ERISA”) for the wrongful K. Glenda Cameron (Argued) denial of benefits. (“Selkridge II.”) The 1101 King Street, Suite 2 District Court granted summary judgment Christiansted, St. Croix, USVI 00820 on res judicata grounds. Selkridge also and eventually filed a Fed. R. Civ. P. 60(b) motion seeking to amend the judgment in Selkridge then filed Selkridge I, a diversity Selkridge I to indicate that the grant of action in the District Court of the Virgin summary judgment was without prejudice Islands against Omaha alleging breach of to filing a new lawsuit. The District Court contract, bad faith, fraud, intentional denied the Rule 60(b) motion because it infliction of emotional distress, and sought to utilize that Rule as a substitute negligent infliction of emotional distress. for an appeal. Omaha moved for summary judgment Selkridge appeals the grant of summary on all claims Selkridge had alleged against judgment and the denial of her Rule 60(b) it. The motion contended that all of motion in Selkridge I and the grant of Selkridge’s claims arose “under the summary judgment in Selkridge II. We common law of the Territory” and were determine that we are without jurisdiction therefore “expressly preem pted by to hear an appeal of the grant of summary ERISA.” JA at 61. judgment in Selkridge I because an appeal was not timely taken. While we conclude In her opposition to Omaha’s motion, that Judge Moore should have recused Selkridge argued that summary judgment himself before entering the order granting should be denied but went on to make the summary judgment in Selkridge II and the following request: “[i]f this Court were to order denying Selkridge’s Rule 60(b) find that the claims are preempted and motion in Selkridge I, we hold that our must be converted to federal claims, recognition of his failure to do so as plain Plaintiff respectfully requests that she be error and our independent, plenary review given the opportunity to amend her of those orders make further remedial Complaint accordingly to more clearly action unnecessary. Accordingly, given state her claims as federal violation of that our independent plenary review ERISA claims.” JA at 156-57. convinces us that the results reached were required as a matter of law, we will affirm The District Court held that all of both December 23, 2002, orders. Selkridge’s claims were preempted by ERISA and that Omaha was entitled to I. Background summary judgment on all counts. See Selkridge v. United of Omaha Life Ins. Selkridge was enrolled in a group Co., 221 F. Supp. 2d 579 (D.V.I. 2002). It insurance plan with Omaha during the did not mention the application for leave to period in which she was employed by the amend found only in Selkridge’s brief. Virgin Islands Telephone Company and its The Court’s February 22, 2002, order successors. In December 1996, Selkridge read: “it is hereby ORDERED that filed an application for long-term disability defendants’ motion for summary judgment benefits with Omaha. Omaha denied the . . . is GRANTED. . . .” JA at 364. The claim initially and, following an appeal, order did not expressly reserve to
2 Selkridge a right to pursue ERISA-based motion in Selkridge I were filed, one of claims in a new action. Selkridge’s attorneys wrote a letter-to-the- editor of an on-line publication critical of On April 23, 2002, Selkridge filed a the District Judge presiding over the new action, Selkridge II, in the District Selkridge matters. The content of the Court. The complaint asserted that letter was not directly related to either Selkridge’s claim “arises under ERISA.” Selkridge matter, but the letter prompted a JA at 390. series of events that will be discussed in Part III of this opinion relating to the Omaha moved for summary judgment in propriety of the District Judge’s continuing Selkridge II on September 23, 2002, to preside over the Selkridge matters. arguing that Selkridge’s claim “under ERISA” was barred by res judicata On January 9, 2003, Selkridge filed a because it arose out of the same set of notice of appeal in Selkridge I seeking to circumstances at issue in Selkridge I and appeal the February 22, 2002, grant of could have been litigated in Selkridge I. summary judgment in Selkridge I, the On October 30, 2002, eight months after December 23, 2002, denial of her Rule the order granting summary judgment in 60(b) motion, and “the Court’s recusal of Selkridge I, Selkridge filed a Fed. R. Civ. itself from this case and its subsequent P. 60(b) motion in Selkridge I. That reinstatement, sua sponte.” SA. On the motion requested that the District Court same day, Selkridge filed a notice of “clarify” its February 22, 2002, order to appeal seeking to appeal the December 23, state that Selkridge’s claims in Selkridge I 2002, grant of summary judgment in were “converted to federal claims” and to Selkridge II.1 grant Selkridge “leave to amend to plead claims under ERISA” with respect to Selkridge I. JA at 719, 726. 1 These notices of appeal were not included in the appendix filed by On December 23, 2002, the District Selkridge. Instead, the appendix included Court granted summary judgment in two additional notices of appeal for Selkridge II on res judicata grounds and Selkridge I and Selkridge II, both of which denied the Rule 60(b) motion in Selkridge were filed on January 13, 2003. The I on the ground that it was an January 13, 2003, notice of appeal for impermissible attempt to utilize that Rule Selkridge I was the same as the January 9, as a substitute for an appeal. See Selkridge 2003, notice of appeal for Selkridge I. The v. United of Omaha Life Ins. Co., 237 F. January 13, 2003, notice of appeal for Supp. 2d 600 (D.V.I. 2002). Selkridge II, however, differed from the January 9, 2003, notice of appeal for Just before the summary judgment Selkridge II, and failed to specify any motion in Selkridge II and the Rule 60(b) order being appealed from in Selkridge II.
3 II. Jurisdiction to Hear an Appeal from “A final order is one that ‘ends the the Grant of Summary Judgment in litigation on the merits and leaves nothing Selkridge I for the court to do but execute the judgment.’” Welch v. Folsom, 925 F.2d Selkridge insists that we have 666, 668 (3d Cir. 1991) (quoting Coopers jurisdiction to review the summary & Lybrand v. Livesay, 437 U.S. 463, 467 judgment order entered in Selkridge I (1978) (internal quotations omitted)). For under 28 U.S.C. § 1291, which authorizes purposes of appeal under 28 U.S.C. § appeals from final decisions of the District 1291, “A summary judgment that fully Court. We cannot agree. disposes of all claims among all parties is final.” 15B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Fed. Prac. & Proc.: Juris. 2d § 3914.28 (2d ed. 1992), Selkridge has made a motion to at 202; see Hampton v. Borough of Tinton correct the appendix with respect to the Falls Police Dept., 98 F.3d 107, 111 (3d fact that the January 9, 2003, notices of Cir. 1996) (“The district court granted appeal were not included in the appendix. summary judgment for the defendants as to Under Fed. R. App. P. 30(a)(2), “[p]arts of all counts of plaintiffs’ complaint. . . . The the record may be relied on by the court or district court’s grant of summary judgment the parties even though not included in the is a final order that disposed of all claims, appendix.” While we need not necessarily and this court therefore has jurisdiction correct the appendix, Selkridge’s motion is over this appeal pursuant to 28 U.S.C. § unopposed and we will, by separate order, 1291.”). The District Court’s February 22, grant the motion. 2002, order granted summary judgment in Selkridge concedes that the January favor of Omaha on all of Selkridge’s 13, 2003, notice of appeal in Selkridge II claims on the grounds that the claims were “does not correctly identify the District expressly preempted by ERISA. Because Court Order from which an appeal was it disposed of all claims with respect to all taken in that case.” Motion at 3. We will parties,2 that order was a final order within consider the January 13, 2003, Selkridge II notice of appeal as one merely expanding that which Selkridge sought to appeal in 2 Selkridge II–and not one intended as a That order also met the procedural substitute for the earlier notice of requirements of Fed. R. Civ. P. 58 for an appeal–because it provides no indication order that commences the running of the that it was intended to change the content time for appeal. See Local Union No. of the earlier notice of appeal. Therefore, 1992 of the Int’l Brotherhood of Electrical as construed by this Court, Selkridge’s Workers v. The Okonite Co., F.3d , notices of appeal in Selkridge II seek to 2004 WL 113150, *5 (3d Cir. 2004) (order appeal the December 23, 2002, order satisfies Rule 58’s separate document granting summary judgment to Omaha. requirement where it (1) is self-contained
4 the meaning of 28 U.S.C. § 1291. thought that the District Court had “overlooked” her request for automatic Fed. R. App. P. 4(a)(1)(A) requires that conversion of her state law claims into a notice of appeal be filed “with the ERISA claims, and had also “overlooked” district clerk within 30 days after the Selkridge’s request for leave to amend, we judgment or order appealed from is fail to understand how this would excuse entered,” id., unless certain exceptions counsel from seeking reconsideration by inapplicable here apply. Selkridge filed the District Court or appealing the District her notice of appeal in Selkridge I on Court’s decision. January 9, 2003–over ten months after summary judgment had been granted in Alternatively, Selkridge argues that her that matter. It is a well-established rule counsel reasonably viewed the February that “[t]he time limits for filing a notice of 22, 2002, order as a partial summary appeal are ‘mandatory and jurisdictional.’” judgment and, accordingly, not as a final In re Rashid, 210 F.3d 201, 204 (3d Cir. order. While it is true that a grant of 2000) (quoting Krebs Chrysler-Plymouth, “partial summary judgment” under Fed. R. Inc. v. Valley Motors, Inc., 141 F.3d 490, Civ. P. 56(d) is not a “final” judgment 495 (3d Cir. 1998)); see, e.g., Browder v. within the meaning of 28 U.S.C. § 1291 Director, Dept. of Corrections of Illinois, because it is an adjudication of less than 434 U.S. 257, 264 (1978) (same); U.S. v. the entire action, see 10B Charles Alan Vastola, 989 F.2d 1318, 1321 (3d Cir. Wright, Arthur R. Miller & Mary Kay 1993) (same). We thus lack jurisdiction to Kane, Fed. Prac. & Proc.: Civil 3d § 2737 review the summary judgment in Selkridge (1998), at 322-25, there is simply no I. record basis for construing the February 22, 2002, order as a grant of partial Selkridge first argues that she “did not summary judgment. Omaha moved for seek reconsideration or appeal the district summary judgment on all claims on the court’s decision because she reasonably grounds that the claims were expressly believed that the district court had preempted by ERISA. Although Omaha overlooked her request for automatic requested that, in the alternative, it be conversion of [plaintiff’s] claims and leave granted partial summary judgment on to amend. . . .” Appellant’s Reply Brief at Selkridge’s state law claims should “Count 8-9 (footnote omitted). We are I [be] deemed to constitute a claim for unpersuaded. If Selkridge’s counsel benefits under ERISA,” JA at 48, the February 22, 2002, order in explicit terms grants summary judgment on all claims.3 and separate from the opinion, (2) sets forth the relief granted, and (3) omits the 3 District Court’s reasons for disposing of We also reject Selkridge’s argument the parties’ motions as it did). that the filing of her Fed. R. Civ. P. 60(b)
5 We thus conclude that we lack February 22, 2002, order in Selkridge I. jurisdiction to review the District Court’s III. Summary Judgment in Selkridge II and the Rule 60(b) Motion in Selkridge I: The Recusal Issue motion and her subsequent timely appeal of the denial of that motion entitles her to Selkridge insists that the summary a review of the underlying grant of judgment order in Selkridge II and the summary judgment on February 22, 2002. refusal to vacate the judgment in Selkridge Fed. R. App. P. 4(a)(4)(A) provides a I must be vacated because Judge Moore’s limited exception to the time limits for impartiality when he rendered those filing a notice of appeal outlined in Fed R. decisions would be questioned by a App. P. 4(a)(1)(A). reasonable person aware of the relevant If a party timely files in the facts. district court any of the following motions under the A. Background F e d e r a l R u l e s o f C i v il Procedure, the time to file an On September 3, 2002, Lee J. Rohn, appeal runs for all parties from one of Selkridge’s attorneys, wrote a the entry of the order disposing l e t te r - to - t h e -e d itor of a n onlin e of the last such remaining publication, the St. Croix Source, motion: . . . (vi) for relief regarding United States District Judge under Rule 60 if the motion is Thomas K. Moore’s performance of his filed no later than 10 days after official duties and the fact that Judge the judgment is entered. Moore was not being reappointed 4 by Id. This provision of Fed. R. A pp. P. President George W. Bush.5 Attorney 4(a)(4)(A), clarifying the relationship between the time limits for filing a Fed. R. Civ. P. 60 motion and an appeal under 4 Judges sitting in the District Court of Fed. R. App. P. 4, makes clear the limited the Virgin Islands are appointed for 10- circumstances under which an appeal from year terms pursuant to the Revised Organic a Fed. R. Civ. P. 60(b) motion may address Act of 1954. See 48 U.S.C. 1614(a). the underlying judgment. See United 5 States v. Fiorelli, 337 F.3d 282, 288 n.3 We take judicial notice of the (3d Cir. 2003). Selkridge filed her Rule existence of a letter-to-the-editor by 60(b) motion eight months after summary Attorney Rohn published in the St. Croix judgment was entered on February 22, Source. See, e.g., Ieradi v. Mylan 2002. That motion did not toll the time for Laboratories, Inc., 230 F.3d 594, 598 n.2 appeal of that order because it was not (3d Cir. 2000) (appellate court may take filed within ten days after summary judicial notice of the existence of a judgment was entered. newspaper article); Peters v. Delaware
6 Rohn suggested that “[t]he failure of Judge On September 9, 2002, Judge Moore Tom Moore to be recommended for began issuing sua sponte recusal orders in reappointment has much less to do with numerous cases involving Attorney Rohn. 8 politics and more to do with the allegations A total of 19 recusal orders were issued of inappropriate behavior while he was on between September 9, 2002, and October the bench.” See Lee J. Rohn, Lawyer: 7, 2002, in Judge Moore cases involving Judge’s Non-Reappointment Not Politics, St. Croix Source (Sept. 3, 2002). 6 Attorney Rohn then listed in a cursory fashion seve ral allega tions of “inappropriate behavior” by Judge Moore.7 were coerced and harassed and subjected to ex parte instructions and conversations by Judge M oore River Port Authority of Pennsylvania and while in jury deliberations; jurors New Jersey, 16 F.3d 1346, 1356 n.12 (3d complaints of being castigated after Cir. 1994) (same). reaching a verdict because it was contrary to what Judge Moore 6 The full text of the letter can be found would have decided; keeping the in United States v. Roebuck, 289 F. Supp. court house o p e n la te to 2d 678, 684-85 (D.V.I. 2003) (appendix). accommodate the filing of a petition to keep poor housing out of 7 Wrote Attorney Rohn: a neighborhood that Judge Moore Judge Moore’s problems lie in the lived in, and then granting the a l l eg ations of inappropria te motion despite a conflict that behavior while he was on the requ ire d r e cusal; repeatedly bench. These include, but are not imposing sanctions without notice limited to, repeatedly being and a proper ability to respond; reversed by the Third Circuit [and] being vindictive against [Court of Appeals], repeated litigants who took a position disagreements with the judges of contrary to his. the Third Circuit, rude behavior Id. (alterations in original). toward attorneys practicing before 8 him, including, but not limited to, We take judicial notice of the refusing to grant a trial continuance existence of the judicial orders set forth to a seven months pregnant infra in which Judge Moore recused attorney desp ite a m edical himself from a large number of Attorney necessity; ordering attorneys to be Rohn’s cases, and in which Judge Brotman in his court despite the fact that indicated that nearly all of Attorney they were also supposed to be Rohn’s cases were being reassigned to him before the Third Circuit at the same for “mediation and/or settlement time; complaints by jurors that they discussions.”
7 Attorney Rohn. 9 Virtually all of these cases were then reassigned to Judge Brotman for purposes of mediation and settlement negotiations.10 9 See Antonie, et al. v. VI Port Authority, et al., V.I. Civ. No. 2001-63 Sept. 10, 2002); Souder v. Withers, Civ (recusal order dated Sept. 9, 2002); No. 2000-91 (recusal order dated Sept. 20, Bolinger v. Virgin Islands Telephone 2002); Anderson v. Government of the Corp., et al., V.I. Civ. No. 2002-49 Virgin Islands, et al., V.I. Civ. No. 2001- (recusal order dated Sept. 9, 2002); Gore, 149 (recusal order dated Sept. 26, 2002); et al. v. Prosser, et al., V.I. Civ. No. 2001- Airo v. Sugar Bay Club, et al., V.I. Civ. 003 (recusal order dated Sept. 9, 2002); No. 2000-134 (recusal order dated Oct. 1, Hendricks v. Belardo, V.I. Civ. No. 1999- 2002); Derr v. BCM/CHI Frenchmen’s 033 (recusal order dated Sept. 9, 2002); Reef, Inc., V.I. Civ. No. 2001-148 (recusal Jones v. Daily News Publishing Co., et al., order dated Oct. 7, 2002). V.I. Civ. No. 1999-138 (recusal order 10 dated Sept. 9, 2002); Lang v. United See Antonie, et al. v. VI Port States, V.I. Civ. No. 2000-100 (recusal Authority, et al., V.I. Civ. No. 2001-63 order dated Sept. 9, 2002); Matheson v. (reassignment notice dated Dec. 3, 2002); Virgin Islands Community Bank, et al., Bolinger v. Virgin Islands Telephone V.I. Civ. No. 2000-80 (recusal order dated Corp., et al., V.I. Civ. No. 2002-49 Sept. 9, 2002); Nyfield v. Virgin Islands (reassignment notice dated Dec. 3, 2002); Telephone Corp., et al., V.I. Civ. No. Gore, et al. v. Prosser, et al., V.I. Civ. No. 2001-53 (Sept. 9, 2002); Sweeney v. Virgin 2001-003 (reassignment notice dated Dec. Islands Telephone Corp., et al., V.I. Civ. 3, 2002); Jones v. Daily News Publishing No. 2001-53 (recusal order dated Sept. 9, Co., et al., V.I. Civ. No. 1999-138 2002); Williams v. Kmart Corp., V.I. Civ. (reassignment notice dated Dec. 3, 2002); No. 1999-102 (recusal order dated Sept. 9, Lang v. United States, V.I. Civ. No. 2000- 2002); Ch apa rro v. Inno vative 100 (reassignment notice dated Dec. 3, Communications Corp., V.I. Civ. No. 2002); Matheson v. Virgin Islands 1999-190 (recusal order dated Sept. 10, Community Bank, et al., V.I. Civ. No. 2002); Island Management Group v. Bank 2000-80 (reassignment notice dated Dec. of Nova Scotia, et al., V.I. Civ. No. 1999- 3, 2002); Nyfield v. Virgin Islands 104 (recusal order dated Sept. 10, 2002); Telephone Corp., et al., V.I. Civ. No. Martin v. Virgin Islands Telephone Corp., 2001-53 (reassignment notice dated Dec. et al., V.I. Civ. No. 1999-202 (recusal 3, 2002); Sweeney v. Virgin Islands order dated Sept. 10, 2002); Trantham v. Telephone Corp., et al., V.I. Civ. No. Ford, et al., V.I. Civ. No. 1998-140 2001-53 (reassignment notice dated Dec. (recusal order dated Sept. 10, 2002); 3, 2002); Chaparro v. Innovative VECC, et al. v. The Bank of Nova Scotia, Communications Corp., V.I. Civ. No. V.I. Civ. No. 2002-72 (recusal order dated 1999-190 (reassignment notice dated Dec.
8 In addition, at least twelve other Judge sponte recusal orders were issued by Judge Moore cases involving Attorney Rohn Moore in these cases.12 It is in this last were reassigned to Judge Brotman for settlement purposes11 although no sua 2001-154 (reassignment notice dated Dec. 5, 2002); Selkridge v. United Omaha Life 3, 2002); Airo v. Sugar Bay Club, et al., Ins. Co., V.I. Civ. No. 2002-73 V.I. Civ. No. 2000-134 (reassignment (reassignment notice dated Dec. 5, 2002); notice dated Dec. 5, 2002); Anderson v. Sexton, et al. v. Equivest St. Thomas, et al., Government of the Virgin Islands, et al., V.I. Civ. No. 2002-96 (reassignment V.I. Civ. No. 2001-149 (reassignment notice dated Dec. 5, 2002); Collins v. notice dated Dec. 5, 2002); Derr v. Castle Acquisitions, V.I. Civ. No. 99-212 BCM/CHI Frenchmen’s Reef, Inc., V.I. (reassignment notice dated Dec. 20, 2002); Civ. No. 2001-148 (reassignment notice Domino Oil v. Phoenix Assurance Co. of dated Dec. 5, 2002); VECC, et al. v. The New York, V.I. Civ. No. 1996-99 Bank of Nova Scotia, V.I. Civ. No. 2002- (reassignment notice dated Dec. 20, 2002); 72 (reassignment notice dated Dec. 5, Soltau v. CTF St. Thomas Corp., V.I. Civ. 2002); Martin v. Virgin Islands Telephone No. 1998-143 (reassignment notice dated Corp., et al., V.I. Civ. No. 1999-202 Dec. 20, 2002); Smith v. Elias, et al., V.I. (reassignment notice dated Dec. 12, 2002); Civ. No. 02-14 (scheduling order for a Souder v. Withers, Civ. No. 2000-91 status hearing and settlement discussions (reassignment notice dated Dec. 20, 2002); dated Dec. 23, 2002); Khan v. Soleiman, et see also Trantham v. Ford, et al., V.I. Civ. al., V.I. Civ. No. 2000-223 (reassignment No. 1998-140 (order from Magistrate notice dated Jan. 14, 2003). Judge Jeffrey L. Resnick dated Dec. 4, 12 2002, directing the parties to discuss Selkridge included in her appendix settlement with Judge Brotman). an “Affidavit of Lee J. Rohn in Support of Motion for Judicial Recusal.” SA at 31- 11 See Donastorg, Jr. v. Innovative 33. According to the Affidavit: Communications Corp., V.I. Civ. No. Magistrate Judge Barnard said 2002-97 (reassignment notice dated Dec. that Judge Moore was upset with 3, 2002); Dabrowski v. Emerald Beach me for having written the letter C o rp ., V .I. C iv. N o. 2001- 121 criticizing his judicial (reassignment notice dated Dec. 5, 2002); performance and temperament. Greene v. Honda Motor Co., Ltd., et al., Magistrate Judge Barnard further V.I. Civ. No. 2002-159 (reassignment stated that he had been instructed notice dated Dec. 5, 2002); Konikoff v. Judge Barnard [sic] to prepare Peninsular and Oriental Steam Navigation recusal Orders for every case in Co., et al., V.I. Civ. No. 1999-224 which I was attorney of record. (reassignment notice dated Dec. 5, 2002); SA at 32. The affidavit does not make Mahoney v. Bulhof, et al., V.I. Civ. No. clear as to who instructed M agistrate
9 group of matters, where no recusal order December 23, 2002, Judge Moore had by Judge Moore had been issued but the already granted summary judgment in case had nonetheless been reassigned to Selkridge II on all claims in favor of Judge Brotman for settlement negotiations, Omaha, and had denied Selkridge’s Rule that Selkridge II landed.13 60(b) motion in Selkridge I.
Selkridge was notified on December 9, Also on December 23, 2002, Magistrate 2002, by Judge Brotman that her matter Judge Geoffrey W. Barnard wrote to Judge had been reassigned to Judge Brotman for Brotman by letter, a copy of which was settlement negotiations.14 In an order sent to the parties. The letter read, in part: dated December 23, 2002, and filed on “This is to confirm our discussion earlier December 27, 2002, Judge Brotman regarding the above-referenced cases. scheduled a conference for a “status These cases were inadvertently categorized hearing and settlement discussions” for as cases from which Judge Moore recused Selkridge II. JA at 764. Apparently himself. However, Judge Moore has unbeknownst to Judge Brotman, by way of confirmed that he will continue to preside a memorandum opinion and orders dated over these cases.” JA at 766. Judge December 20, 2002, and filed on Brotman then notified the parties that his previous scheduling order was vacated, in light of Judge Moore’s December 20, Judge Barnard to prepare recusal orders in 2002, opinion. all of Attorney Rohn’s cases. In any case, we cannot consider the affidavit, which Two published opinions from the purports to have been prepared for the District Court of the Virgin Islands, United States v. Roebuck, V.I. Crim. No. written after the orders being appealed 02-171 case. The affidavit is outside of from in this case were filed, purport to the record for Selkridge I and Selkridge II, address Judge Moore’s recusals (or and Selkridge suggests no theory under withholding of recusals) with respect to which we may consider the affidavit. Attorney Rohn’s cases. See United States 13 v. Roebuck, 271 F. Supp. 2d 712 (D.V.I. Neither a recusal order nor a 2003); United States v. Roebuck, 289 F. reassignment notice was issued with Supp. 2d 678 (D.V.I. 2003). 15 respect to Selkridge I. The case was not reassigned for settlement purposes because final judgment had been entered and only 15 a Fed. R. Civ. P. 60(b) motion was “[W]e recognize that we have the pending. power to take judicial notice of subsequent developments in related proceedings since 14 See Selkridge v. United Omaha Life the appeal in each case was filed.” Ins. Co., V.I. Civ. No. 2002-73 Federal Ins. Co. v. Richard I. Rubin & (reassignment notice dated Dec. 5, 2002). Co., Inc., 12 F.3d 1270, 1284 (3d Cir.
10 In United States v. Roebuck, 271 F. Supp. 2d 712 (D.V.I. 2003), Judge Brotman, presiding over a motion to quash 1993). We take judicial notice of these subpoenas to compel the testimony of four published opinions to the extent that they federal judges at an evidentiary hearing on discuss Selkridge I and Selkridge II, and to a motion to recuse Judge Moore from the extent they discuss whether Judge presiding over that case, noted that: Moore recused himself from Attorney Rohn’s cases. With respect to United Shortly after Judge Moore had States v. Roebuck, 289 F. Supp. 2d 678 recused himself from all of Attorney (D.V.I. 2003) (Moore, J.), we take judicial Rohn’s cases, he withdrew his notice of the public statements made by recusal in some cases, including the Judge M oore in that opinion. matters of Selkridge v. United of We recognize that “[a] court may Omaha Life Insurance Company, take judicial notice of an adjudicative fact V.I. Civil Action Nos. 2001-143 and if that fact is not subject to reasonable 2002-73, without giving a reason for dispute” and “[a] judicially noticed fact this decision. (See Selkridge v. must either be generally known within the United of Omaha Life Ins. Co., 237 jurisdiction of the trial court, or be capable F. Supp. 2d 600 (D.V.I. Dec. 20, of accurate and ready determination by 2002) (M oore, J.)). resort to sources whose accuracy cannot reasonably be questioned.” Werner v. Id. at 715. Thus, there is a published Werner, 267 F.3d 288, 295 (3d Cir. 2001). opinion of the District Court representing With respect to both published that Judge Moore recused himself in Roebuck opinions, we do not take judicial Selkridge I and Selkridge II, and then notice for “the truth of the facts recited “withdrew” that recusal. therein, but for the existence of the opinion, which is not subject to reasonable Judge Moore, in later proceedings in dispute over its authenticity.” Southern Roebuck, indicated that he “never recused Cross Overseas Agencies, Inc. v. Wah [himself] from Selkridge” and commented Kwong Shipping Group Ltd., 181 F.3d on his reason for recusing himself in many 410, 426 (3d Cir. 1999). For example, to of Attorney Rohn’s cases: the extent Judge Moore expressed that he was “initially upset at the viciousness of First, I entered no blanket order of the letter [by Attorney Rohn],” Roebuck, recusal from all of Lee Rohn’s cases 289 F. Supp. 2d at 682, we do not purport to be taking judicial notice of the fact that Judge Moore was actually upset at Attorney Rohn. We take judicial notice public statement indicating that he was for the more limited purpose of “initially upset at the viciousness” of recognizing that Judge Moore made a Attorney Rohn’s letter.
11 . . . . Second, I entered recusal reflect, and, as the saying goes, time orders in only some, but not all, of heals all wounds. I have concluded Attorney Rohn’s then-pending cases. that this was just Lee Rohn being Third, I have not made any rulings in Lee Rohn and doing what Lee Rohn any of those cases from which I have thinks she must do to win. recused myself. The Selkridge matter is one of those in which I have never United States v. Roebuck, 289 F. Supp. 2d entered an order of recusal. Thus, 678, 681-82 (D.V.I. 2003) (footnotes Attorney Rohn’s claim that I omitted). Thus, while Judge M oore deliberately “unrecused” myself just characterized the group of cases referred to to be able to rule against her client is Judge Brotman as the “Rohn recusal paten tly false. Although th e cases,” there were some of these cases, mag istrate judg e inad verte ntly including Selkridge II, in which Judge included Selkridge among those Moore maintains that he did not recuse cases sent to the judge who had been himself. designated to oversee the Rohn r e cusal cases for settleme nt B. Standard of Review negotiations, the fact remains that I never recused myself from Selkridge. Where a motion for disqualification was I ruled on the facts and law that I made in the District Court, we review the believe governed the decision of the denial of such a motion for abuse of case. I understand my rulings are on discretion. See, e.g., General Motors appeal, and, as always, the Court of Corp. v. New A.C. Chevrolet, Inc., 263 Appeals will have the last word if it F.3d 296, 336 n.25 (3d Cir. 2001); disagrees with my decision. S ec ur ac om m Co nsu lting , In c . v. Securacom Inc., 224 F.3d 273, 278 (3d I did recuse myself from some of Cir. 2000). However, Selkridge made no Attorney Rohn’s then-pending cases motion in the District Court for Judge because her personal attack in the St. Moore’s recusal from Selkridge I or Thomas Source stung when I first Selkridge II at any time after the events at read it. I reiterate that these recusal issue here took place. orders had absolutely nothing to do with any antipathy or prejudice Where a party has not requested that the against any of her clients or any district judge recuse himself or herself concern that I could not be fair and during proceedings in the district court, we impartial in handling their cases. review a recusal argument made on appeal Several months have now gone by and although I was initially upset at the viciousness of the letter, the passage of time has allowed me to
12 for plain error. 16 See, e.g., Osei-Afriyie by 1979). 17 Osei-Afriyie v. Medical College of Pennsylvania, 937 F.2d 876, 881 (3d Cir. 1991); United States v. Dalfonso, 707 F.2d 17 Selkridge maintains that her counsel 757, 760 (3d Cir. 1983); United States v. had no fair opportunity to move for recusal Schreiber, 599 F.2d 534, 535 (3d Cir. in the District Court. Counsel was aware that Judge Moore had recused himself in 19 of her cases and that he had transferred these cases and another group of cases in which no recusal orders had been issued to 16 We recognize that the Second Judge Brotman for settlement discussions. Circuit has, in the civil context, reviewed Counsel may well have expected Judge a party’s argument made for the first time Moore to recuse in this other group of on appeal–that the trial judge should have cases (as he had done with the other 19 recused himself or h erself–under cases) if they did not settle. Moreover, fundamental error analysis. See Taylor v. based on Judge Brotman’s December 9th Vermont Dept. of Educ., 313 F.3d 768, 795 order, counsel may well have anticipated (2d Cir. 2002) (“In the civil context, that, at a minimum, Judge Moore would however, we reverse only if there has been take no further action in these cases unless fundamental error. Fundamental error is and until settlement discussions proved more egregious than the plain error that unfruitful. Judge Moore’s December 23rd can excuse a procedural default in a final judgment, accordingly, may have criminal trial, and is so serious and come as a surprise. Finally, when the final flagrant that it goes to the very integrity of judgment was received, it was apparent the proceeding.”) (internal quotations, from the surrounding circumstances that citations, and alterations omitted). As Fed. Judge Moore must have considered the R. Crim. P. 52(b), upon which plain error recusal issue. At that point, counsel may analysis is based, does not apply in the well have considered a motion in the civil setting, Taylor suggests that District Court to be pointless. An fundamental error analysis should be argument in favor of applying an abuse of applied. Nonetheless, this Court has discretion standard of review has some applied plain error analysis, in the civil appeal in this context. See United States v. context, to a party’s argument for the first Antar, 53 F.3d 568, 573 n.6 (3d Cir. 1995) time on appeal that the trial judge should (expressing doubt as to whether the plain have recused himself or herself. See error standard of review applies where Osei-Afriyie by Osei-Afriyie v. Medical statement at issue was made by district College of Pennsylvania, 937 F.2d 876, judge after conviction, and counsel may 881 (3d Cir. 1991). Accordingly, we are have reasonably thought that making a bound to apply plain error analysis. recusal motion was pointless; nonetheless, plain error standard of review applied
13 Under the plain error standard of the forfeited error [is] within the sound review, a District Court’s order may be discretion of the court of appeals, and the reversed only when “[t]here [was] an court should not exercise that discretion ‘error’ that is ‘plain’ and that ‘affect[s] unless the error seriously affect[s] the substantial rights.’ ” Antar, 53 F.3d at 573 fairness, integrity or public reputation of (quoting United States v. Olano, 507 U.S. judicial proceedings.” Olano, 507 U.S. at 725, 732 (1993)) (alterations in original). 732 (second alteration in original and Normally, the requirement that the error internal quotations omitted). “affect substantial rights” is not satisfied absent an affirmative showing “that the C. The Law of Recusal error [was] prejudicial. It must have affected the outcome of the district court Section 455(a) of Title 28, United States proceedings.” Olano, 507 U.S. at 734. Code, requires that: There is at least one situation, however, in which prejudice may be presumed without Any justice, judge, or magistrate affirmative evidence that the alleged error judge of the United States shall affected the outcome. As we held in disqualify himself in any proceeding United States v. Antar, 53 F.3d 568, 573- in which his impartiality might 79 (3d Cir. 1995) (applying plain error reasonably be questioned. review where a trial judge’s failure to recuse was first raised on appeal), 28 U.S.C. § 455(a); see Alexander v. prejudice will be presumed and plain error Primerica Holdings, Inc., 10 F.3d 155, 162 review is appropriate where a district (3d Cir. 1993) (“Whenever a judge’s judge allegedly failed to recuse despite an impartiality ‘m ight reason ab ly be appearance of partiality. Because “the questioned’ in a proceeding, 28 U.S.C. § touchstone of recusal is the integrity of the 455(a) commands the judge to disqualify judiciary . . . prejudice is presumed” once himself sua sponte in that proceeding.”). “the appearance of partiality is shown.” Id. at 573 n.7. “A party seeking recusal need not show actual bias on the part of the court, only Even where the error is plain and affects the possibility of bias. . . . Under § 455(a), substantial rights, the decision to “correct 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 where parties both conceded it would recuse.” In re Prudential Ins. Co. of apply). Nevertheless, since it is clear that America Sales Practices Litigation, 148 we may review for plain error and since F.3d 283, 343 (3d Cir. 1998) (internal we believe that standard is satisfied here, quotations omitted); see Massachusetts we proceed hereafter with plain error School of Law at Andover, Inc. v. review.
14 American Bar Ass’n, 107 F.3d 1026, 1042 If it were the case that Judge Moore had (3d Cir. 1997) (“The standard for recusal recused himself in Selkridge I and is whether an objective observer Selkridge II and then unrecused himself, reasonably might question the judge’s our task would be an easy one. “Once a impartiality.”) judge has disqualified himself, he or she may enter no further orders in the case. Generally, “beliefs or opinions which His power is limited to performing merit recusal must involve an extrajudicial ministerial duties necessary to transfer the factor.” Antar, 53 F.3d at 574. case to another judge (including the “[O]pinions formed by the judge on the entering of ‘housekeeping’ orders).” basis of facts introduced or events Moody v. Simmons, 858 F.2d 137, 143 (3d occurring in the course of the current Cir. 1988) (citations omitted). But the proceedings, or of prior proceedings, do dockets in these cases do not reflect that not constitute a basis for a bias or partiality such a recusal order was entered in either motion unless they display a deep-seated of them, and we will analyze the recusal favoritism or antagonism that would make issue on the assumption that there were no fair judgment impossible.” Liteky v. such recusals.18 United States, 510 U.S. 540, 555 (1994). D. Section 455(a) Analysis There is no dispute here that the source of Judge Moore’s alleged bias involved an We agree with Omaha that the fact that extrajudicial factor. The basis for one of Selkridge’s attorneys wrote a letter- Selkridge’s concern that Judge Moore had to-the-editor of a newspaper regarding become biased against her was a letter Judge Moore is, alone, of little probative written by her counsel to a local value with respect to whether a reasonable newspaper decrying Judge Moore’s person, knowing all of the circumstances, performance as a judge, and Judge w o u l d q u e s t i o n Ju d g e M o o r e ’ s Moore’s reactio ns to th at letter. impartiality. As the Court of Appeals for Accordingly, a significant extrajudicial the Second Circuit explained with regard factor is present and we review Judge to a letter sent by a litigant to a judge that Moore’s lack of recusal under the questioned the judge’s motivations and objective standard of whether a intentions, “[t]his letter may very well “reasonable man, were he to know all the establish [the litigant]’s feelings toward circumstances, would harbor doubts about the judge’s impartiality” under § 455(a). Antar, 53 F.3d at 574 (quoting In re 18 As we note hereafter, this does not Larson, 43 F.3d 410, 415 (8th Cir. 1994) mean that the existence of ambiguity on (quoting Potashnick v. Port City Constr. the public record regarding whether Co., 609 F.2d 1101, 1111 (5th Cir. recusals occurred is irrelevant to our 1980))). analysis of the recusal issue.
15 [the judge], but has no tendency to show Moore should have recused himself was the latter’s feelings toward [the litigant]. . the letter written by Selkridge’s counsel . .” King v. United States, 576 F.2d 432, taking issue with Judge Moore’s 437 (2d Cir. 1978); see United States v. performance, there would be little basis for Wolfson, 558 F.2d 59, 61-62 (2d Cir. arguing that he should have recused. It is 1977) (litigant’s letter to newspaper his reaction to counsel’s letter that raises (which was never published), copied to the the difficult issues here presented. judge, which accused the judge of participating in a “scheme to frame” the We first address the circumstances litigant, “only establish[ed] [the litigant]’s under which the December 23, 2002, feelings towards [the judge], not the orders were entered by Judge M oore. A reverse”); see also United States v. letter written by Attorney Rohn and Helmsley, 760 F. Supp. 338, 342 directly challenging the competence of (S.D.N.Y. 1991) (“Where the issue is not Judge Moore had been published on hostility displayed by the judge, but September 3rd. Commencing six days hostility displayed toward the judge, the later, and continuing over a period of a Second Circuit has found that hostile month, Judge M oore recused himself in 19 attacks even by a criminal defendant, cases involving Attorney Rohn. Almost much less by the defendant's lawyer, are all of these cases were reassigned to Judge not a sufficient basis for recusal.”). Brotman, a visiting judge, for settlement discussions only, presumably so that Were the rule otherwise, “those litigants permanent reassignment would be required fortunate enough to have easy access to the in only those that did not settle. These media could make charges against a recusals and reassignments were made sua judge’s impartiality that would effectively sponte and without explanation. In veto t h e assignment of judges. addition, prior to December 23rd, at least Judge-shopping would then become an twelve more cases of Judge Moore’s additional and potent tactical weapon in involving Attorney Rohn were transferred the skilled practitioner’s arsenal.” In re from Judge Moore to Judge Brotman for Drexel Burnham Lambert Inc., 861 F.2d settlement negotiations, raising the 1307, 1309 (2d Cir. 1988). We therefore possibility that Judge Moore was agree with Judge Moore’s view of recusal considering recusal in such of these cases law, expressed in United States v. as did not settle. Again, the reassignments Roebuck, 289 F. Supp. 2d 678 (D.V.I. came sua sponte and without explanation. 2003), that “an attorney [may not] be allowed to use her calculated personal Because these extraordinary activities in attack on a sitting judge as a technique to Judge Moore’s cases involving Attorney prevent that judge from presiding over any Rohn followed almost immediately on the of her cases. . . .” Id. at 682. If the only heels of such a critical publication and basis for Selkridge’s argument that Judge because no alternative explanation was
16 given for them, we believe they would have serious reason to question suggest to a reasonable person that Judge whether prior rulings in the case Moore was sufficiently upset by the letter were based on im partial that he considered himself unable to be considerations or on the judge's objective in her cases. Moreover, in the stated goal. The fact that the judge’s absence of an alternative explanation motivation came to light only after suggesting a contrary conclusion, we the conclusion of the trial would be believe a reasonable person would of no moment. question Judge M oore’s ability to be objective at that point in time in all of Antar, 53 F.3d at 576. Based on Antar, we Attorney Rohn’s cases. conclude that we must consider developments between December 23, Further, because the ultimate issue here 2002, and the submission of this direct is whether the public can have confidence appeal. in the integrity of the court’s judgments, we are called to consider statements of the This conclusion is, of course, important court following December 23, 2002, to the because Judge Moore, after December 23, extent they bear upon that issue. In United 2002, had occasion to comment on the States v. Antar, 53 F.3d 568 (3d Cir. extraordinary activity in Attorney Rohn’s 1995), the defendant challenged the cases prior to that date. Writing 14 months validity of his conviction on the ground after the publication of Rohn’s letter and that the trial judge was biased and should 11 months after December 23, 2002, Judge not have presided over his trial. The Moore acknowledged that he had “entered principal basis for the charge of bias was a recusal orders in . . . some, but not all, of statement made by the judge at the Attorney Rohn’s . . . pending cases” conclusion of the trial. We there rejected because he was “stung” by “her personal the idea that we should look only at the attack” and “upset at the viciousness” of appearance of matters at the time of trial: her “scurrilous article.” He reported, however, that “the passage of time [had] We reject the implications of the allowed [him] to reflect, and . . . [had] government’s argument–that because heal[ed] all wounds.” Roebuck, 289 F. the statement occurred after the trial, Supp. 2d at 682. Judge Moore thus it cannot form the basis of an confirmed that he was sufficiently upset allegation of bias during the trial. with Attorney Rohn in the Fall of 2002 Suppose, for instance, that at that he recused in some of her cases. sentencing the district judge informs While he insisted that he did not recuse in a defendant that throughout the trial all of Attorney Rohn’s cases, he offered no his object had been to see the explanation for why he believed he could defendant behind bars. A reasonable be objective in some of her cases even observer in such a scenario would though he could not be in others. As a
17 result, we believe that Judge Moore’s E. Holding opinion served to reinforce the conclusion that a reasonable person would have Judge Moore’s reaction to Attorney reached viewing matters as of December Rohn’s intemperate public criticism is 23rd – that there was reason to “harbor certainly understandable. Moreover, his doubts about the judge’s impartiality” sensitivity to the possible impact of that when he was deliberating over the motions reaction on his ability to judge fairly cases pending in Selkridge I and Selkridge II and in which she was counsel is commendable. writing his December 23, 2002, opinion. We further agree with Judge Moore that the passage of time does, indeed, heal Nor is the appearance of impropriety wounds, and we do not mean to suggest assuaged by the co nflict in th e that it is not presently appropriate for him subsequently developed record over to sit on cases involving Attorney Rohn. 19 whether Judge Moore did at one point recuse in the Selkridge cases. We accept We do hold, however, that a trial judge for present purposes that Judge Brotman cannot, without explanation, recuse was mistaken in his belief that Judge himself in a substantial number of cases Moore had recused himself in all of and, at substantially the same time, decline Attorney Rohn’s cases. Nevertheless, to recuse himself in another group of cases there is a conflict in the public record that that appears indistinguishable for purposes the litigants have no means of resolving of recusal. From an appearance and that conflict casts a shadow on Judge perspective, that is precisely what Judge Moore’s impartiality in the Selkridge Moore did here, and he committed plain cases. error in doing so.
Viewing the record as a whole, given F. The Remedy the appearance that Judge Moore’s impartiality was compromised, we “Although § 455 defines the conclude that it was error for Judge Moore c i r c u m s ta n c e s that m a n d a te to enter the December 23rd orders in disqualification of federal judges, it neither Selkridge I and Selkridge II, and that this prescribes nor prohibits any particular error was plain. Further, because this error remedy for a violation of that duty. compromised the integrity of the [Rather,] Congress has wisely delegated to proceedings, “prejudice is presumed.” Antar, 53 F.3d at 573. Finally, we exercise our discretion to review this claim of error 19 In particular, we, of course, express because it “seriously affect[ed] the . . . no opinion on the propriety of Judge integrity [and] public reputation of judicial Moore’s refusal to recuse himself in proceedings.” Olano, 507 U.S. at 732 United States v. Roebuck, 289 F. Supp. 2d (internal quotations omitted). 678 (D.V.I. 2003).
18 the judiciary the task of fashioning Corp., 335 F.3d 476, 485-86 (5th Cir. remedies that will best serve the purpose 2003); In re Continental Airlines Corp., of the legislation.” Liljeberg v. Health 901 F.2d 1259, 1263 (5th Cir. 1990); Services Acquisition Corp., 486 U.S. 847, Parker v. Connors Steel Co., 855 F.2d 862 (1988). 1510, 1525-27 (11th Cir. 1988).
In Liljeberg, the Supreme Court Compared with situations like the one approved the vacatur of a final judgment before us in In re School Asbestos entered by a district judge who should Litigation, determining the appropriate have disqualified himself. It explained, remedy is not a complex matter. The letter however, that this remedy would not be came late in the litigation, and only the required in all such cases. It suggested final decisions currently before us on that, in deciding whether to vacate such a direct appeal could possibly have been final judgment, a court should “consider affected. Moreover, both of those the risk of injustice to the parties in the decisions are subject to plenary review by particular case, the risk that the denial of this court, one because it is a summary relief will produce injustice in other cases, judgment and the other because it is based and the risk of undermining the public’s on the District Court’s resolution of a pure confidence in the judicial process.” Id. at issue of law. 864. With respect to the second factor, the Court concluded that vacating the In this context, we have two choices: judgment would help prevent injustice in (1) we can vacate the orders before us and other cases “by encouraging a judge or remand with instructions that the cases be litigant to more carefully examine possible assigned to a new district judge for grounds for disqualification and to resolution of the pending motions and promptly disclose them when discovered.” possible further proceedings; or (2) we can Id. at 868. independently review the record and determine whether the res judicata and The Liljeberg Court expressly noted that Rule 60(b) issues were correctly decided “[a]s in other areas of the law, there is . . . as a matter of law and remand only in the room for harmless error” in § 455(a) event they were not, reasoning that, if analysis, id. at 862, and we have heretofore impartial decision makers of this court, in read that case as approving harmless error addition to finding a violation of § 455(a), analysis when applied with sensitivity not independently approve the orders at issue, only to the interests of the parties, but also any error is harmless and Omaha is fairly to the interests of other litigants and to the entitled to its judgments. Where, as here, public’s interest in the integrity of the it appears clear that the failure to recuse court system. See In re School Asbestos did not affect the dispositions of the Litigation, 977 F.2d 764, 785-88 (3d Cir. plaintiff’s claims and a remand, 1992); see also Patterson v. Mobil Oil accordingly, would only prolong the
19 litigations, we conclude that the second IV. Summary Judgment in Selkridge II: approach is the appropriate one. The Merits
As we explain hereafter, any trial judge The District Court granted summary presented with this record would be judgment for Omaha in Selkridge II based required as a matter of law to enter on claim preclusion. For claim preclusion summary judgment in Selkridge II and to to apply, there must have been “[1] a final decline to vacate the judgment in Selkridge judgment on the merits in [2] a prior suit I. As a result, we perceive no unfairness to involving the same parties or their privies, Selkridge from declining to vacate the and [3] a subsequent suit based on the judgments against her, and it seems same cause of action.” General Elec. Co. apparent to us that a contrary decision v. Deutz AG, 270 F.3d 144, 158 (3d Cir. wo uld serve only to impose an 2001). “If these three factors are present, unnecessary, additional litigation burden a claim that was or could have been raised on Omaha and the District Court. previously must be dismissed as Moreover, in these circumstances, we precluded.” CoreStates Bank, N.A. v. believe our determination that a violation Huls America, Inc., 176 F.3d 187, 194 (3d of § 455(a) occurred will provide virtually Cir. 1999). Selkridge argues only that the the same encouragement to other judges ERISA claim in Selkridge II is not subject and litigants as would a remand. Finally, to claim preclusion because the decision in we conclude (1) that our independent Selkridge I was neither final nor on the review and determination of the relevant legal issues will provide as much legitimacy to these particular final before the compromised judge is presumed judgments as they would have following a for the purpose of determining whether remand, reexamination by another District appellate review is permissible in the Judge, and a subsequent appellate absence of a motion to recuse. If a affirmance; and (2) that our finding of contrary result had been reached in Antar, plain error on Judge Moore’s part there would have been no appellate review constitutes a corrective process sufficient and the District Court’s judgment would to assure continuing confidence in the have remained in place despite the fact that judicial process.20 its integrity had been impaired, a result that no appellate court could sanction in good conscience. Our “harmless error” 20 Our use of “harmless error” analysis analysis, on the other hand, accepts the in determining the appropriate remedy is presumption of prejudice at the trial level, not in tension with the Court’s holding in but takes into account the fact that plain Antar that prejudice is presumed once an error review makes further, curative appearance of impartiality is shown. proceedings possible in the Court of Under Antar, an effect on the proceedings Appeals.
20 merits. cla i m s plaintif f s pr e sente d w e re preempted.”). Selkridge asserted only state law claims in her complaint in Selkridge I, and Omaha Accordingly, the District Court had no asserted an affirmative defense of ERISA choice but to dismiss Selkridge II because preemption as to all of those claims. The the claim in that lawsuit could have been District Court sustained that defense and raised in Selkridge I. entered a final judgment on every claim asserted. That final judgment determined V. The Rule 60(b) Motion in Selkridge I: that there could be no recovery on any The Merits claim. Rule 60(b) provides: As Selkridge stresses, an argument can be made that the District Court abused its On motion and upon such terms as discretion by failing to provide an are just, the court may relieve a party opportunity to amend.21 But that is an or a party’s legal representative from argument that should have been advanced a final jud gm ent, o rde r, or in a timely appeal and does not render the proceedin g for the fo llowing District Court’s summary judgment reasons: (1) mistake, inadvertence, anything other than a final judgment on the surprise, or excusable neglect; (2) merits. Stewart v. U.S. Bancorp, 297 F.3d newly discovered evidence which by 953, 959 (9th Cir. 2002) (where due diligence could not have been defendants brought motion to dismiss discovered in time to move for a new based upon all of plaintiffs’ claims being trial under Rule 59(b); (3) fraud preempted by ERISA, “[p]laintiffs were on (whether heretofore denominated notice that their claims were preempted by intrinsic or extrinsic), ERISA, and they did not seek leave to m i s r e p re s e n t a ti o n , o r o t h e r amend or dismiss ‘without prejudice.’ . . . misconduct of an adverse party; (4) Absent a request from plaintiffs to amend, the judgment is void; (5) the the district court had no other alternative judgment has be en sa tisfied, but to dismiss the case, finding the only released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, 21 or it is no longer equitable that the But see Ramsgate Court Townhouse judgment should have prospective Ass’n v. West Chester Borough, 313 F.3d application; or (6) any other reason 157, 161 (3d Cir. 2002) (District Court did justifying relief from the operation of not abuse its discretion in failing to the judgment. address a request for permission to amend the complaint contained in a brief but Selkridge urges that the District Court never made the subject of a motion).
21 committed reversible error by failing to vacate the summary judgment in Selkridge I pursuant to the residual provision of Rule 60(b)(6). Her argument is that the District Court committed legal error in entering that summary judgment. Even if that were true, however, it would not, as a matter of law, justify relief under Rule 60(b)(6). As we held in Martinez-McBean v. Government of Virgin Islands, 562 F.2d, 908, 912 (3d Cir. 1977), “[L]egal error does not by itself warrant the application of Rule 60(b). The correction of legal errors committed by the district courts is the function of the Courts of Appeals. Since legal error can usually be corrected on appeal, that factor without more does not justify the granting of relief under Rule 60(b)(6). We know of no authority to the contrary.” See also Morris v. Horn, 187 F.3d 333, 343-44 (3d Cir. 1999) (“What [Appellant] is attempting to raise as a Rule 60(b) motion is in fact what he should have brought as an appeal.”). VI. Conclusion For the foregoing reasons, we will dismiss the appeal from the February 22, 2002, grant of summary judgment in Selkridge I, No. 03-1146, for lack of jurisdiction and will affirm the District Court’s orders entered on December 23, 2002, in Selkridge I (No. 03-1146) and Selkridge II (No. 03-1147).