United States District Court, D. Delaware
Court of the State of Delaware in and for Kent County CA.
Alston, Dover, Delaware, Pro Se Plaintiff.
E. Sherlock, Esquire, Weber Gallagher Simpson Stapleton Fires
& Newby LLP, Dover, Delaware. Counsel for Defendants.
U.S. District Judge.
EShed Alston ("Plaintiff), who proceeds Pro se,
filed this action on May 2, 2017, in the Superior Court of
the State of Delaware in and for Kent County, Alston v.
Verizon, C.A. No. K17C-05-00003 TBD. (D.I. 1) Defendants
removed the matter to this Court on May 30, 2017. Currently
pending are several motions filed by the parties including
Defendants' motion to dismiss and Plaintiffs combined
motion for summary judgment and motion to remand, third
discovery motion, two motions for recusal, and a motion to
expedite. (D.I. 3, 6, 14, 19, 24, 37) For the reasons
discussed below, the Court will grant Defendants' motion
to dismiss, decline to exercise jurisdiction over the
supplemental state claims, and remand the case to the
Superior Court of the State of Delaware in and for Kent
light of Plaintiff s challenge to the Court's
impartiality, the Court will first consider Plaintiffs
motions for recusal. (D.I. 19, 24) Plaintiff seeks the
undersigned's recusal asserting racial bias and claiming
that the undersigned failed to order an audit or require
Defendant Verizon Delaware LLC ("Verizon")
(improperly pled as Verizon) to produce any evidence at all.
(D.I. 19) In addition, he takes exception to an order entered
on October 13, 2017 denying his motion for an escrow account.
(D.I. 24) Finally, Plaintiff references rulings made by a
judge, other than the undersigned, in a different case.
"decision of whether to recuse from hearing a matter
lies within the sound discretion of the trial court
judge." United States v. Wilensky, 757 F.2d
594, 599-600 (3d Cir. 1985). The statutes that address
judicial recusal are 28 U.S.C. § 144 and 28 U.S.C.
§ 455. Neither of these statutes provides a basis for
recusal where a party is simply displeased with the
court's legal rulings. See Securacomm Consulting Inc.
v. Securacom Inc., 224 F.3d 273, 278 (3d Cir. 2000).
28 U.S.C. § 144, recusal must occur "[w]henever a
party to any proceeding in a district court makes and files a
timely and sufficient affidavit that the judge before whom
the matter is pending has a personal bias or prejudice either
against him or in favor of any adverse party." 28 U.S.C.
§ 144. A "substantial burden is imposed on the
party filing an affidavit of prejudice to demonstrate that
the judge is not impartial." Sharp v. Johnson,
2007 WL 3034024, at *1 (W.D. Pa. Oct. 15, 2007). In an
affidavit of bias, the affiant has the burden of making a
threefold showing: (1) the facts must be material and stated
with particularity; (2) the facts must be such that, if true,
they would convince a reasonable person that a bias exists;
and (3) the facts must show that the bias is personal, as
opposed to judicial, in nature. See United States v.
Thompson, 483 F.2d 527, 528 (3d Cir. 1973); Pi-Net
Int'l, Inc. v. Citizens Fin. Group, Inc., 2015 WL
1283196, at *6 (D. Del. Mar. 18, 2015).
455(a) provides, in pertinent part, that "[a]ny justice,
judge, or magistrate of the United States shall disqualify
himself in any proceeding in which his impartiality might
reasonably be questioned." 28 U.S.C. § 455(a). The
test for recusal under § 455(a) is "whether 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, 296 (3d Cir. 2004) (citation
declaration and sworn statement, Plaintiff states that the
undersigned failed to audit an account, deliberately
misspelled his name, and is "Verizon's aiding and
abetting advocate." (D.I. 24 at 9) The statement also
refers to an ongoing appeal before the Supreme Court of the
State of Delaware. Plaintiffs motion contains basically the
same information, and also attributes racial discrimination
as the motive for alleged actions he perceives to have been
taken against him.
evaluation of Plaintiffs affidavit and motions for recusal,
the undersigned finds no basis from which to conclude that
the Court has a personal bias or prejudice against Plaintiff
or in favor or any defendant to warrant recusal under 28
U.S.C. § 144. Of note, Plaintiff has failed to carry his
burden of making the threefold showing as to (1) specific
facts (2) that would convince a reasonable person that a bias
exists and (3) that the bias was personal as opposed to
judicial in nature. See Thompson, 483 F.2d at 528.
To the contrary, Plaintiff has presented conclusory and broad
statements premised entirely on conjecture.
recusal under 28 U.S.C. § 455 is unwarranted because
Plaintiffs allegations do not implicate any evidence from
which a reasonable person with knowledge of all the facts
would question the Court's impartiality. See In re
Kensington, 368 F.3d at 296. Plaintiff refers to the
October 13, 2017 order (D.I. 22) that denied his motion for
an escrow account. The record reflects the order was based on
legal precedent and not bias, prejudice, or animus. In
addition, the motion was denied without prejudice, giving
Plaintiff the option of renewing the motion at a later time.
Plaintiffs dissatisfaction with the Court's prior
decision is an insufficient basis for recusal. See
Securacomm Consulting, Inc., 224 F.3d at 278. Finally,
"opinions formed by the judge on the basis of facts
introduced or events occurring in the course of the current
proceedings, or of prior ...