United States District Court, D. Delaware
R. Fallon United State Magistrate Judge
Wilmington this 29th day of October,
2019, the court having considered plaintiffs October
11, 2019 letter submission (D.I. 29), requesting the
undersigned judicial officer's recusal, IT IS HEREBY
ORDERED that plaintiffs letter request is DENIED for the
September 30, 2019, this matter was referred to the
undersigned judicial officer. (D.I. 25) On October 1, 2019,
the court issued an oral order advising the parties that the
undersigned judicial officer was in private practice with the
firm of Tybout, Redfearn & Pell for twenty-six years
prior to her judicial appointment in 2012, and ordered that
the parties meet and confer and, thereafter, inform the court
on or before October 11, 2019, whether recusal was requested.
On October 7, 2019, plaintiff Maheswar Mikkilineni ("Mr.
Mikkilineni"), who proceeds pro se, filed a
motion for reconsideration of the court's September 30,
2019 Order of Reference. (D.I. 26) On October 10, 2019, the
court denied plaintiffs motion for reconsideration. (D.I. 27)
On October 11, 2019, defendants PayPal, Inc., GoDaddy.com,
LLC, and the Government submitted a letter informing the court
that they did not request the undersigned judicial
officer's recusal from this matter. (D.I. 28) On the
same day, Mr. Mikkilineni submitted a letter, suggesting that
he requested the undersigned judicial officer's recusal
from the matter. (D.I. 29) For the following reasons, the
court denies plaintiffs motion for recusal.
"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). 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. Grp, Inc., 2015 WL 1283196, at *6 (D. Del. Mar. 18,
Section 455 provides that a judge is required to recuse
herself "in any proceeding in which [her] impartiality
might reasonably be questioned." 28 U.S.C. §
455(a). The test for recusal under section 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'lLtd., 368 F.3d 289, 296 (3d Cir. 2004), not
"whether a judge actually harbors bias against a
party," U.S. v. Kennedy, 682 F.3d 244, 258 (3d
Cir. 2012). Under § 455(b)(1), a judge is required to
recuse herself "[w]here [s]he has a personal bias or
prejudice concerning a party." 28 U.S.C. §
455(b)(1). Under either subsection of section 455, the bias
necessary to require recusal generally must derive from a
source outside of the official proceedings. See Liteky v.
U.S., 510 U.S. 540, 554 (1994); Selkridge v. United
of Omaha Life Ins. Co., 360 F.3d 155, 167 (3d Cir. 2004)
("beliefs or opinions which merit recusal must involve
an extrajudicial factor").
Analysis. Recusal, for a limited time period, is
required in cases involving attorneys from the judicial
official's former law firm. See Committee on
Codes of Conduct Advisory Opinion No. 24. However, such
recusals are usually limited to a period of two years from
the time of the judicial appointment, so this does not
reasonably form a basis for recusal in the instant case.
See id, ("The Committee recommends that judges
consider a recusal period of at least two years ....").
Counsel for PayPal, Inc. works at Tybout, Redfearn &
Pell, the law firm at which the undersigned judicial officer
worked prior to her appointment to the bench in
2012. Seven years have elapsed since the
undersigned judicial officer's appointment and this
matter was originally filed on May 17, 2019. (D.I. 1, Ex. A)
Therefore, recusal is not required. See 28 U.S.C.
§ 455(b)(2) (a judge is required to recuse herself
"[w]here in private practice [she] served as a lawyer in
the matter in controversy, or a lawyer with whom [she]
previously practiced law served during such association as a
lawyer concerning the matter."). Furthermore, plaintiff
has not identified any evidence of personal bias or prejudice
indicative of impartiality that would require recusal.
See Thompson, 483 F.2d at 528. Therefore, the court
denies plaintiffs motion for recusal.
Conclusion. For the foregoing reasons, plaintiff s
motion for recusal is denied. (C.A. No. 19-1391, D.I. 29) The
Clerk of Court shall cause a copy of this Memorandum Order to
be mailed to Plaintiff.
This Memorandum Order is filed pursuant to 28 U.S.C. §
636(b)(1)(B), Fed.R.Civ.P. 72(a), and D. Del. LR 72.1.
See Robinson v. Horizon Blue Cross Blue Shield of New
Jersey, 674 F. App'x 174, 178 n.3 (3d Cir. 2017)
(citing Selkridge v. United of Omaha Life Ins. Co.,
360 F.3d 155, 166 (3d Cir. 2004) (review of motion for
recusal)). The parties may serve and file specific written
objections within fourteen (14) days after being served with
a copy of this Memorandum Order. Fed.R.Civ.P. 72(a). The
written objection and response are each limited to five (5)
pages. The failure of a party to object to legal conclusions
may result in the loss of the right to de novo review in the
District Court. See Sincavage v. Barnhart, 171
Fed.Appx. 924, 925 n.l (3d Cir. 2006); Henderson v.
Carlson, 812 F.2d 874, 878-79 (3d Cir. 1987).
The parties are directed to the court's Standing Order In
Pro Se Matters For Objections Filed Under Fed.R.Civ.P. 72,
dated October 9, 2013, a copy of which is available on the
court's website, http://www.ded.uscourts.gov.