United States District Court, District of Delaware
December 18, 2014
YOUNES KABBAJ, Plaintiff,
AMERICAN SCHOOL OF TANGIER, et al.. Defendants. YOUNES KABBAJ, Plaintiff,
MARK SIMPSON, Defendant. YOUNES KABBAJ, Plaintiff,
GOOGLE INC., et al., Defendants. YOUNES KABBAJ, Plaintiff,
AMERICAN SCHOOL OF TANGIER, et al., Defendants. YOUNES KABBAJ, Plaintiff,
AMERICAN SCHOOL OF TANGIER, et al., Defendants. YOUNES KABBAJ, Plaintiff,
MARK SIMPSON, et al., Defendants.
Younes Kabbaj, Plantation, Florida, Pro Se Plaintiff.
Jennifer Gimler Brady, Esq., and Michael Brendan Rush, Esq., Potter Anderson & Corroon, LLP, Wilmington, Delaware; Counsel for Defendants American School of Tangier, Board of Trustees for the American School of Tangier, Stephen E. Eastman, and Edward M. Gabriel.
Ian Robert Liston, Esq., Wilson Sonsini Goodrich & Rosati, Georgetown, Delaware; Counsel for Defendants Google Inc. and Amazon Inc.
A. Thompson Bayliss, Esq., Abrams & Bayliss LLP; Counsel for Defendant Yahoo Inc.
Randolph Karl Herndon, Jr., Esq., McDermott Will & Emery LLP, Washington, D.C.; Counsel for Defendants Mark S. Simpson and Brian K. Albro.
THYNGET Chief U.S. Magistrate Judge.
Presently before the Court are plaintiff's Motions for Recusal and Amended Motions for Recusal with Supporting Affidavits, filed in C. A. Nos. 10-431-RGA, 12-1322-RGA-MPT, 14-780-RGA, 14-982-RGA, and 14-1001-RGA. For the reasons that follow, the motions are denied.
Plaintiff Younes Kabbaj, a former employee of the American School of Tangier, filed numerous lawsuits alleging employment discrimination, violations of a state whistleblowers' protection act, negligence, intentional infliction of emotional distress, intentional interference with a contractual relationship, abuse of process, conversion, breach of contract, tortious interference, and defamation. See C. A. Nos. 10-431-RGA, 12-1322-RGA-MPT, 13-1522-RGA, 14-780-RGA, 14-982-RGA, 14-1001-RGA. He appears pro se, has paid the filing fee in certain cases, and was granted leave to proceed in forma pauperis in others. In all cases, plaintiff filed identical motions for recusal and amended motions for recusal, with supporting affidavits. Id. at C. A. Nos. 10-431-RGA at D.I. 74, 75; 12-1322-RGA-MPT at D.I. 83, 84; 13-1522-RGA at D.I. 118, 119; 14-780-RGAatD.I. 16, 17; 14-982-RGA at D.I. 7, 8; 14-1001-RGA at D.I. 24, 29).These motions for recusal generally address both my recusal and that of District Court Judge Richard G. Andrews, with the initial motions specifically addressing Judge Andrews' recusal, while the amended motions, although generally directed to recusal of both judges, specifically target the undersigned's recusal. Plaintiff seeks to have the cases assigned to a "neutral judge."
In the first action commenced by plaintiff, C. A. No. 10-431-RGA, the parties entered into a confidential settlement agreement,  followed by a joint motion to dismiss with prejudice and consent order, granted by the Court on April 24, 2012. (Id. at D.I. 54). These matters were heard by me after the parties consented to my jurisdiction for all matters related to settlement and to rule on the joint motion to dismiss with prejudice and consent order. (Id. at D.I. 53). The dismissal order provided that the Court would retain jurisdiction of the matter following dismissal for the purpose of enforcing the parties' written settlement agreement and to resolve disputes regarding that settlement agreement. (Id. at D.I. 54). In addition, the dismissal order restrained and prohibited plaintiff from having any contact with numerous persons and entities (the "Releasees") involved in C. A. No. 10-431-RGA. (Id.) Finally, the dismissal order provided that, unless prior written permission is obtained from this Court, defendants may not bring a civil action against plaintiff, and plaintiff may not institute a civil action against any of the releasees of the settlement agreement with respect to any matter not released by the parties' settlement agreement, including but not limited to, any claim that any party breached the settlement agreement. Plaintiff filed a request to engage in mediation and/or to file a lawsuit which seeks to modify the terms of the settlement agreement and settlement order. (Id. at D.I. 65).
It appears plaintiff initiated three actions without receiving prior Court approval in derogation of the dismissal order, C. A. Nos. 14-780-RGA, 14-982-RGA, and 14-1001-RGA. All subsequent cases filed by plaintiff are related to C. A. No. 10-431-RGA.
Plaintiff seeks my recusal pursuant to 28 U.S.C. § 144 and 28 U.S.C. § 455 on the grounds of a "personal bias and/or prejudice" against him. (C. A. No. 10-431-RGA, D.I. 74 motion at ¶ 2).
II. STANDARDS OF LAW
Section 144 requires federal district court judges to recuse if a party timely files a sufficient affidavit, setting forth factual statements showing the judge has personal bias or prejudice against a party. 28 U.S.C. § 144. An affidavit that puts forth conclusory statements and opinions, however, is insufficient and does not require recusal under § 144. See Hill v. Carpenter, 323 F.App'x 167, 170 (3d Cir. 2009).
Section 455 applies regardless of whether a party files a formal motion and affidavit for recusal, and requires recusal when a judge's impartiality "might reasonably be questioned, " 28 U.S.C. § 455(a), or "[wjhere [she] has a personal bias or prejudice concerning a party." 28 U.S.C. § 455(b)(1).
The test for recusal is an objective one and requires recusal where a "reasonable person, with knowledge of all the facts, would conclude that the judge's impartiality might reasonably be questioned." In re Kensington Int'l Ltd., 368 F.3d 289, 301 (3d Cir. 2004). The bias required before recusal is warranted under either §§ 144 or 455 "must stem from a source outside of the official proceedings." Liteky v. United States, 510 U.S. 540, 544, 554 (1994). Notably, "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, 278 (3d Cir. 2000). In order to establish the level of bias necessary to require recusal, facts that arose during the course of litigation are usually insufficient. Generally, "opinions formed by a judge on the basis of events occurring in the course of prior proceedings do not constitute a basis for a bias motion under 28 U.S.C. §§ 144, 455(a) and 455(b)(1), unless they display a deep-seated antagonism that would make fair judgment impossible." Atwell v. Schweiker, 21A F.App'x 116, 117 (3d Cir. 2007).
Plaintiff argues recusal is warranted and claims the undersigned: (1) has obvious bias, is not neutral, and was hostile towards him; (2) oversaw a settlement conference on March 12, 2012, helped draft the language of the confidential settlement agreement, explained its provisions and "lied" to plaintiff regarding how the Court would eventually interpret the settlement agreement, and deceived and induced plaintiff into signing the settlement agreement by making false claims and with no intent to enforce the settlement agreement; (3) issued a consent order as a means to immunize defendants against any further litigation for their breaches of contract; (4) refused to enforce the terms of the settlement agreement after the undersigned's assignment of jurisdiction to enforcement the agreement for purposes of specifically obstructing its enforcement; (5) retained jurisdiction over the settlement agreement to prevent plaintiff from filing additional litigation should defendants breach the settlement agreement; (6) refused to enforce the settlement agreement and was part of an illegal attempt to assist defendants in their attempt to have plaintiff incarcerated on false charges;
(7) refused to hold hearings to clarify matters regarding letters of apologies, publications of false claims, breaches of the settlement agreement, and enforcement of the terms of the settlement agreement; (8) is an advocate of, and favors, the homosexual religious lobby and the religious beliefs of defendants; (9) took advantage of plaintiff's pro se status; (10) refused to act to restrain defamation and threats to plaintiff; (11) made rulings in favor of defendants and shielded them from litigation; (12) quashed subpoenas that would have allowed plaintiff to identify the persons who were defaming or threatening him; (13) banned discovery; (14) refused to admonish defendants; (15) entered an order in Civ. Act. No. 12-1322-RGA-MPT that has no basis in law; and (16) engaged in a series of orders that denied him the ability to serve subpoenas and the ability to amend the complaint. (Id. at D.I. 74, aff. at ¶¶ 5, 41, 42, 47, 51; D.I. 75 at ¶¶ 5, 6, 7, 8, 15, 16, 17, 18, 22, 23, 24, 26, 29, 30, 32, 35, 36, 42-44, 46).
As discussed previously, it is only in C. A. No. 10-431 -RGA that the parties consented to the undersigned's limited jurisdiction. Plaintiff seeks recusal in all cases even though the undersigned is no longer involved, to prevent any future involvement at a later date. (D.I. 75, ¶ 3). Plaintiff's other open cases are not referred to the undersigned and, although my decisions in C. A. No. 10-431-RGA could have an effect on those matters, I cannot recuse from cases that are not currently referred to me or to which the parties have not consented to my jurisdiction. Quite simply, I have no jurisdiction in cases filed by plaintiff other than the limited jurisdiction in C. A. No. 10-431-RGA as described above. Accordingly, all motions for recusal in those cases other than C. A. No. 10-431 -RGA are denied as moot.
Plaintiff asserts that the presence of a gay flag in the undersigned's chambers, coupled with obstruction of litigation and immunity conferred upon defendants due to their being high-level members of the homosexual religion and homosexual lobby demonstrates a clear predisposition of bias against him and the lack of proper judicial temperament necessary to be a neutral judge. (D.I. 75, ¶ 47).
His belief appears to be based upon an afghan plaintiff incorrectly describes as a "gay pride flag" that he noticed on March 12, 2012 during the settlement conference negotiations held in my chambers. (Id. at ¶ 27). There is no "gay pride flag" in my chambers. There is, however, a couch that has a multi-colored afghan draped on the back of it. The afghan was made by my aunt and given to me as a gift. The Court does not believe that anyone could reasonably question the undersigned's impartiality based upon these assertions.
C. Rulings by the Court
The affidavits complain of the undersigned's conduct during mediation and rulings. These numerous complaints are not bases for recusal. "[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, 278 (3d Cir. 2000). All such rulings complained of occurred in 12-1322-RGA which, when objections were filed, were affirmed, and subsequently dismissed on appeal. Those decisions addressed quashing subpoenas, disallowing discovery, denying various other motions, including a motion to amend the complaint, and granting a defendant's motion to dismiss.
Plaintiff has not met the standard for recusal under either §§144 or 455 given the insufficiency of the affidavit. Plaintiff did not submit any objective, factual assertions that would indicate bias. Instead, his proffered grounds for recusal amount to conclusions based upon suspicion, conjecture and speculation, and/or assertions that are contrary to the records in these cases. In addition, recusal is not required under objective standard of § 455. To the extent plaintiff attempts to implicate extrajudicial sources, the undersigned has examined the totality of the circumstances, and finds that the provisions of 28 U.S.C. § 455(a) do not mandate recusal.
After careful and deliberate consideration, the undersigned concludes there is no actual bias or prejudice towards plaintiff, and that a reasonable, well-informed observer would not question my impartiality. In light of the foregoing standard, and after considering plaintiff's assertions, there are no grounds for recusal under 28 U.S.C. §§144 or 455.
Although there is no express timeliness provision in § 455(a), "most circuits considering the matter have concluded that a litigant must raise the disqualification issue within a reasonable time after the grounds for it are known." Here, my recusal is sought more than two years after mediation, execution of the settlement documents and agreement to the consent order by plaintiff and plaintiff's admitted concern of my potential bias in favor of homosexuals, heightened by the purported "gay pride flag." Other bases for recusal are directed to my rulings in 12-1322-RGA. The last decision issued by the undersigned in that matter, which granted a defendant's motion under Fed.R.Civ.P. 12(b)(2), occurred on June 6, 2013. Thereafter, on June 17, 2013 and July 2, 2013, motions were no longer referred to me. Plaintiff waited more than fifteen months until August 2014 to move to recuse. Numerous federal circuits recognize that such a motion be made promptly when alleged disqualifying facts are known or should have been known. Plaintiff's motion and accompanying affidavits do not meet this requirement.
For the above reasons, the Court denies plaintiff's Motion to Recuse and Amended Motions to Recuse United States Magistrate Judge Mary Pat Thynge, pursuant to 28 U.S.C. §§ 144 and 455 in C. A. No. 10-431-RGA at D.I. 74, 75, and further denies as the motions found in C. A. Nos. 13-1522-RGA at D.I. 118, 119; 14-780-RGA at D.I. 5, 16, 17; 14-982-RGA at D.I. 7, 8; 14-1001-RGA at D.I. 24, 29 are moot.
An appropriate order will be entered.