Stuart v. Scottsdale, City of

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Mark E Stuart and Virginia G Stuart, No. CV-20-00755-PHX-JAT

10 Plaintiffs, ORDER

11 v.

12 City of Scottsdale, et al.,

13 Defendants. 14 15 Pending before the Court is Plaintiffs’ “Motion to Recuse Judge Teilborg Under 28 16 U.S.C. §§ 144 and 455(a) From This Case Because of Bias and Prejudice.” (Doc 133). 17 Defendants have responded in opposition, (Doc. 134), and Plaintiffs have replied. (Doc. 18 138). The Court now rules. 19 I. BACKGROUND 20 Plaintiffs Mark and Virginia Stuart filed suit against the City of Scottsdale and city 21 officials for violations related to alleged wrongful garnishment of community property. On 22 August 19, 2021, this Court granted summary judgment for individual defendants for their 23 role in the garnishment. (Doc. 119). 24 Now, Plaintiffs move for recusal on the ground that this Court knowingly made 25 “false statements about the evidence in the summary judgment record.” (Doc. 133 at 5). 26 Plaintiffs contend that this evidence make “fair adjudication of the legal and factual issues 27 . . . impossible.” (Doc. 133 at 1). 28 Defendants filed a response, opposing the motion to recuse. (Doc. 134). Defendants 1 argue that Plaintiffs’ motion is untimely and lacking in evidence of bias or prejudice. (Doc. 2 134 at 2). For the following reasons, the Court will deny Plaintiffs’ Motion to Recuse. 3 II. LEGAL STANDARD AND ANALYSIS 4 Motions to disqualify or recuse a federal judge fall under two statutory provisions, 5 28 U.S.C. §§ 144 and 455. Under both, recusal is appropriate where “a reasonable person 6 with knowledge of all the facts would conclude that the judge’s impartiality might 7 reasonably be questioned.” Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir. 2008) 8 (quoting United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997)). In all but the 9 rarest of cases, the alleged bias must be extrajudicial. Liteky v. United States, 510 U.S. 540, 10 544–56 (1994). 11 Whether to grant or deny a motion for recusal is a matter within the Court’s 12 discretion. United States v. Sibla, 624 F.2d 864, 868 (9th Cir. 1980); In re Drexel Burnham 13 Lambert Inc., 861 F.2d 1307, 1312 (2d Cir. 1988). A recusal motion is a serious matter, 14 “strik[ing] at the integrity of the judicial process.” In re Int’l Bus. Mach. Corp., 618 F.2d 15 923, 927 (2d Cir. 1980). It is vital to the integrity of the judicial system that a judge does 16 not recuse themself on unsupported, irrational or highly tenuous speculation, Hinman v. 17 Rogers, 831 F.2d 937, 939 (10th Cir. 1987), and a judge “is as much obliged” to not recuse 18 from a case when “it is not called for,” as he is obliged to recuse when recusal is required. 19 In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1312 (2d Cir. 1988); McCann v. 20 Communs. Design Corp., 775 F. Supp. 1506, 1522–23 (D. Conn. 1991) (“A judge must be 21 free to make rulings on the merits without the apprehension that if he makes a decision, 22 even a disproportionate number of decisions, in favor of one litigant, he may have created 23 the impression of bias.”). 24 A. Procedural Standard for Recusal 25 28 U.S.C. §§ 144 and 455 govern the disqualification of a federal judge. Section 26 144 requires a party seeking disqualification to file a “timely and sufficient affidavit” which 27 illustrates that the judge has a personal bias or prejudice towards a party. 28 U.S.C. § 144. 28 A legally sufficient affidavit will properly allege that the judge has “a personal bias or 1 prejudice,” and “general or conclusory allegations will not support disqualification.” 2 United States v. Zagari, 419 F. Supp. 494, 500–01 (N.D. Cal. 1976); see also Hayes v. 3 National Football League, 463 F. Supp. 1174, 1179 (C.D. Cal. 1979) (“Conclusory 4 allegations . . . do not justify disqualification.”). Cf. United States v. Sykes, 7 F.3d 1331, 5 1339 (7th Cir. 1993) (holding that an affidavit and accompanying certificate are strictly 6 construed for form, timeliness, and sufficiency). The second, 28 U.S.C. § 455(b), “sets 7 forth no procedural requirements.” Sibla, 624 F.2d at 867. 8 At the outset, Plaintiffs’ motion is untimely. Section 144’s requirement of a timely 9 filing “ensures that a party may not wait and decide whether to file based on whether he 10 likes subsequent treatment that he receives.” SEC v. Loving Spirit Found., 392 F.3d 486, 11 492 (D.C. Cir. 2004) (internal quotation marks omitted). The filing is not timely “unless 12 filed at the earliest moment after the movant acquires knowledge of the facts demonstrating 13 the basis for such disqualification.” Sykes, 7 F.3d at 1339 (citations and internal quotation 14 marks omitted). Typically, affidavits in support of recusal are untimely under § 144 only 15 when filed after substantial period of delay. See id. (finding an affidavit untimely when it 16 was filed over two months after the judge made prejudicial remarks). 17 Plaintiffs waited nearly two months from the Court’s Order on August 19, 2021 to 18 file the instant motion on October 10, 2021. A court may excuse excessive delay in filing 19 an affidavit alleging bias if a party presents good cause for the delay. See United States v. 20 Studley, 783 F.2d 934, 939 (9th Cir. 1986). Plaintiffs, however, presented no good cause 21 for their untimely filing. 22 Plaintiffs argue that they “needed time to review the record to make absolutely 23 certain that Judge Teilborg knew he was adopting false facts to support his ruling.” (Doc. 24 133 at 10). They further allege that they “did not discover the basis for recusal until after 25 thoroughly reviewing the record, this was probably about September 30.” (Doc. 138 at 5). 26 But this argument is unsupported by the record. On September 6, 2021, Plaintiffs 27 filed a motion for reconsideration, asking the Court to overrule its summary judgment order 28 because its ruling “is premised upon indisputable errors of fact and law.” (Doc. 123 at 2). 1 Plaintiffs’ motion for reconsideration raises similar arguments to the one at issue here. 2 (Doc. 123 at 18) (“This Court erred by adopting indisputable errors of facts in its 3 decision.”). Given that, it is unclear to the Court what changed from Plaintiffs’ Motion for 4 Reconsideration on September 6, 2021 to their Motion to Recuse on October 10, 2021 that 5 justified their delay. Because Plaintiffs waited nearly two months to file their motion to 6 recuse, the Court finds that the motion is untimely. 7 B. Substantive Standard for Recusal 8 Even if Plaintiffs’ motion was timely filed, the motion does not show “a personal 9 bias or prejudice” that warrants recusal. A party seeking recusal must show judicial bias 10 that is personal and stems either from an extrajudicial source or demonstrates the judge 11 “display[s] deep-seated and unequivocal antagonism that would render fair judgment 12 impossible,” rather than just disagreement with a judge’s adverse decisions. Liteky, 510 13 U.S. at 556. A judge’s rulings, alone, “almost never constitute a valid basis for a bias or 14 partiality motion.” In re Marshall, 721 F.3d 1032, 1041 (9th Cir. 2013) (quoting Liteky, 15 510 U.S. at 555); see also F.J. Hanshaw Enter., Inc. v. Emerald River Dev., Inc., 244 F.3d 16 1128, 1144–45 (9th Cir. 2001) (“Typically, a judge’s partiality must be shown to be based 17 on information from extrajudicial sources, although sometimes, albeit rarely, 18 predispositions developed during the course of a trial will suffice.”). 19 The reason why extrajudicial sources of bias must generally serve as the predicate 20 for any recusal motions is to allow judges to freely make decisions and prevent “parties 21 from using the claim of partiality as a pretext for judge shopping or challenging adverse 22 rulings of law or fact which should properly be addressed only through the appellate 23 process.” United States v. Conforte, 457 F. Supp. 641, 657 (D. Nev. 1978); see United 24 States v. Gallagher, 576 F.2d 1028, 1039 (3d Cir. 1978) (“incorrect rulings do not prove 25 that a judge is biased or prejudiced although errors may require a new trial”). 26 Here, Plaintiffs allege the Court is biased against them based on the Court’s ruling 27 in the instant litigation. They do not allege the undersigned has an extrajudicial bias against 28 them. Because Plaintiffs contend that the bias comes from false statements made in the 1 August 19, 2021, summary judgment order (Doc. 119), the Court will evaluate the 2 statements to see if they constitute the exceptional circumstances to merit recusal. 3 1. False Statement #1 4 Plaintiffs allege that the Court falsely stated that Mark Stuart owed $30,115 in 5 attorney’s fees. Plaintiffs argue that the outstanding amount is not attorney’s fees collected 6 but rather sanctions. (Doc. 133 at 3). Plaintiffs state that this Court’s characterization of 7 the amount due “was simply a fabrication.” (Id.) 8 It is unclear how this statement creates bias against Plaintiffs. If anything, labeling 9 Plaintiffs’ sanctions as attorney’s fees provides a more charitable view of the facts. 10 Moreover, Plaintiffs’ argument that the statement was a “fabrication” is undercut by a 11 passage in the same order, in which this Court described the outstanding judgment as a 12 result of sanctions: “The judgment at question arises from a sanction issued against Plaintiff 13 Mark Stuart.” (Doc. 119 at 9). Plaintiffs themselves quoted this passage in their Motion to 14 Recuse. (Doc. 133 at 3). The fact that the Court described the outstanding judgment as a 15 sanction elsewhere in the order reflects that the statement was not motivated by “personal 16 bias or prejudice” but was rather inartful drafting. 17 2. False Statements #2-5 18 Next, Plaintiffs contend that the Court made “statements about the evidence in the 19 summary judgment record that he knew to be false.” (Doc. 133 at 4). They point to four 20 separate statements they allege amount to “a de facto appeal of a state court ruling, and 21 reversed the state court’s factual findings,” (Id.) which would lead a “reasonable observer, 22 with knowledge of these facts would conclude that Judge Teilborg desires to rule against 23 plaintiffs, regardless of the facts and evidence and regardless of the law.” (Id. at 12). 24 Plaintiffs argue that this is enough to justify recusal. 25 As stated above, the Court in Liteky emphasized that “judicial rulings alone almost 26 never constitute [a] valid basis for a bias or partiality recusal motion.” 510 U.S. at 555, 556 27 n.3 (finding that “when intrajudicial behavior is at issue, manifestations of animosity must 28 be much more than subtle to establish bias”); id. at 562 (Kennedy, J., concurring) (arguing 1 that the “conscientious judge will, as far as possible, make himself aware of his biases … 2 and, by that very self-knowledge, nullify their effect”). “Almost invariably, they are proper 3 grounds for appeal, not for recusal.” Id. at 555. 4 The Supreme Court concluded that the district court judge did not err when denying 5 petitioners’ motion for recusal where the judge admonished the defendants, cut off 6 testimony, and had an “anti-defendant tone.” Id. at 556. The Supreme Court concluded that 7 there was no evidence of bias because the statements all occurred during judicial 8 proceedings and there was no display of deep-seated antagonism that would render fair 9 judgment impossible. Id. 10 In making its decision, the Liteky Court discussed a case where statements made 11 without an extrajudicial source constituted bias that warranted recusal. Id. at 555. In Berger 12 v. the United States, 255 U.S. 22 (1921), a World War I espionage case against German 13 American defendants, the judge said: “One must have a very judicial mind, indeed, not [to 14 be] prejudiced against the German Americans” because their “hearts are reeking with 15 disloyalty.” Id. at 28 (internal quotation marks omitted). 16 In their reply brief, Plaintiffs discuss several cases where a case was reassigned from 17 a judge. (Doc. 138 at 7-8). But the cases cited by Plaintiffs are factually distinct from the 18 issue here. For example, in United States v. Hage, 810 F.3d 712 (9th Cir. 2016), the judge 19 displayed clear antagonism to one party telling them: “your arbitrary determination of 20 unwillfulness [sic: willfulness] is undoubtedly going to fail in this court.” Id. at 722. The 21 judge also showed favoritism to the other party: “You have a court that's very receptive 22 and sympathetic to your claim.” Id. And the judge encouraged that party to file a brief that 23 was time-barred. Id. Likewise, in Rhoades v. Avon Prods., Inc., 504 F.3d 1151 (9th Cir. 24 2007), the judge was recused where he granted a party’s motion to dismiss without 25 allowing the other party to respond to the motion and had expressed views during the case. 26 Id. at 1165. 27 The facts of the case here do not rise to the level of bias shown in Berger, Hage, or 28 Rhoades. Unlike in Berger and Hage, the Court has not made any openly critical comments 1 about either party. Moreover, the Court has not relied on extrajudicial sources in making 2 determinations. Plaintiffs have not alleged conduct during the judicial proceedings that 3 rises to the level that “would render fair judgment impossible.” 4 Furthermore, Plaintiffs’ substantive allegations simply do not stand up to scrutiny. 5 Plaintiffs contend that this Court “deliberately mischaracterized the holdings of cases.” 6 (Doc. 133 at 14). Specifically, they argue the Court acted improperly in using Parenteau 7 v. Prescott Unified Sch. Dist., No. CV-07-8072-PCT-NVW, 2009 WL 10673616 (D. Ariz. 8 Dec. 9, 2009), report and recommendation adopted, No. CV 07-8072-PCT-NVW, 2010 9 WL 11515677 (D. Ariz. Jan. 12, 2010), in its summary judgment order because Plaintiffs 10 claim Prescott was overruled in R.P. ex Rel. C.P. v. Prescott Unified School. 631 F.3d 1117 11 (9th Cir. 2011). (Doc. 133 at 14). But the decision cited by the Court was not overruled by 12 the Ninth Circuit. Rather, the Ninth Circuit overturned a different decision in the same 13 case. See Parenteau ex rel. CP v. Prescott Unified Sch. Dist., No. CV-07-8072-PCT-NVW, 14 2009 WL 2169154 (D. Ariz. July 17, 2009). 15 Even if the case cited by the Court had been overturned, the Court still acted 16 properly in citing to it. Notably, Plaintiffs say that the Ninth Circuit “concluded that the 17 district court abused its discretion in awarding attorneys [sic] fees against the parents and 18 their lawyer.” (Doc. 133 at 14). But the Plaintiffs do not argue that the district court was 19 wrong in finding that community property could be reached even though the wife was not 20 named in the suit. The Report & Recommendation of Magistrate Judge Anderson included 21 an extensive discussion on whether the community property could be reached, Parenteau, 22 2009 WL 10673616, at *3–5, and is especially relevant for determining whether city 23 officials violated a clearly established constitutional right when garnishing from the 24 Plaintiffs. 25 Plaintiffs further contend that “Judge Teilborg deliberately mischaracterized the 26 holdings of cases he cited, so that he could rule against the Stuarts.” (Doc. 133 at 14). 27 Specifically, they allege that the cases named both spouses and the Court pretended that “it 28 was a judgment naming only one spouse.” (Id.); (Id. 14–15) (discussing Parenteau, 2009 1 WL 10673616; Hofmann Co. v. Meisner, 17 Ariz. App. 263 (1972); Greer v. T.F. 2 Thompson & Sons, Inc., No. CV-10-799-PHX-SMM, 2013 WL 4512055, (D. Ariz. Aug. 3 26, 2013)). 4 But Plaintiffs ignore that those cases all addressed the question of whether the 5 judgment could reach the community property when the complaint only named one spouse. 6 Parenteau, 2009 WL 10673616, at *5 (finding that “Lassen’s arguments that Defendants 7 may not execute against the Lassen community property to collect on the attorneys’ fees’ 8 and costs’ sanction or that Defendants may not discover the nature and extent of Mrs. 9 Lassen’s community property because ‘Mrs. Lassen was not named in or sued by 10 Defendants’ lack merit.”); Meisner, 17 Ariz. App. at 268 (“Therefore, the liability incurred 11 by Meisner, by virtue of Wood Surgeons’ failure to pay the debt owed to Hofmann, is 12 binding upon the community assets of the defendants.”); Greer, 2013 WL 4512055, at *4 13 (“As such, when Dudley Greer initiated this action . . . he was binding that community 14 property to this potential outcome. Thus, Dudley and Judy Greer cannot now seek to avoid 15 the responsibility . . . merely by claiming that Thompson should have joined Judy Greer.”) 16 It makes sense that the final judgments would name both spouses because the question 17 presented in those cases was whether the judgment was applicable to both spouses. 18 Plaintiffs’ argument that the Court mischaracterized the holdings of the cases is 19 unsupported on further examination. 20 Finally, Plaintiffs allege that this Court has shown bias by relying on unpublished 21 decisions. (Doc. 133 at 14–15) (“Also troubling is that unpublished rulings of Arizona 22 district courts are not legal authority, yet Judge Teilborg pretends that they are, and that 23 the law requires him to follow them.”). However, Plaintiffs have not provided any support 24 to their conclusion that “unpublished rulings of Arizona district courts are not legal 25 authority.” (Id. at 14). Indeed, they could not argue that because unpublished opinions from 26 another judge in this district may have persuasive but not binding effect. E.g. Price v. Sur. 27 Acceptance Corp., CIV 97-1145 PHX BMV (JWS), 1999 U.S. Dist. LEXIS 22418 (D. 28 Ariz. Aug. 13, 1999); In re Swift Air, No. CV-20-02219-PHX-JAT, 2020 U.S. Dist. LEXIS 1] 227038 (D. Ariz. Dec. 1, 2020). Therefore, the Court did not act improperly in using || unpublished cases to find that the law was not clearly established. 3 Ht. CONCLUSION 4 Plaintiffs have not established any bias or prejudice such that recusal is warranted. 5 Accordingly, 6 IT IS ORDERED that Plaintiffs’ motion for recusal under 28 U.S.C. §§ 144 and 455 (Doc. 133) is denied. 8 Dated this 8th day of November, 2021. 9 10 i C 11 James A. Teilborg 12 Senior United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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