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Alston v. Bucci

United States District Court, D. Delaware

March 12, 2018

ESHED ALSTON, Plaintiff,
v.
VERIZON and ELAINE BUCCI, Defendants.

         Superior Court of the State of Delaware in and for Kent County CA. No.K17C-05-00003 TBD

          EShed Alston, Dover, Delaware, Pro Se Plaintiff.

          Mary E. Sherlock, Esquire, Weber Gallagher Simpson Stapleton Fires & Newby LLP, Dover, Delaware. Counsel for Defendants.

          MEMORANDUM OPINION

          STARK, U.S. District Judge.

         I. INTRODUCTION

         Plaintiff 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 County.

         II. RECUSAL

         In 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.

         The "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).

         Under 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).

         Section 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 omitted).

         In his 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.

         Upon 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.

         Further, 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 ...


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