Opinion
Civil Action No. 01-2433-KHV
January 27, 2003
MEMORANDUM AND ORDER
Henry F. Butler brings employment discrimination and retaliation claims against The Boeing Company ("Boeing") under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), the Kansas Acts Against Discrimination ("KAAD"), K.S.A. § 44-1001 et seq., and the Civil Rights Act of 1866, as amended, 42 U.S.C. § 1981. On December 2, 2002, the Court entered summary judgment in favor of Boeing on all of plaintiff's claims. See Memorandum And Order (Doc. #196). This matter comes before the Court on plaintiff's Amended Motion To Recuse District Judge (Doc. #220) filed January 13, 2003; plaintiff's Motion To Alter Or Amend Judgment (Doc. #218) filed January 10, 2003; and plaintiff's Motion For Relief From Judgment (Doc. #216) filed January 10, 2003. For reasons stated below, the Court overrules all of plaintiff's motions.
The Court had previously granted partial summary judgment in favor of defendant on plaintiff's Title VII and KAAD claims (Counts 2, 3 and 4). See Memorandum And Order (Doc. #71) filed October 4, 2001. In addition, the Court had limited plaintiff's Section 1981 claims (Count 1) to acts which occurred after October 21, 1997. See id.
On January 1 and 4, 2003, plaintiff personally filed such motions, purporting to sign them on behalf of his attorney. See Motion To Recuse District Judge (Doc. #204) filed January 4, 2003; Motion To Alter Or Amend Judgment (Doc. #198) filed January 1, 2003; and Motion For Relief From Judgment (Doc. #200) filed January 1, 2003. The Court ordered the Clerk to strike the motions unless plaintiff's attorney signed the motions in the Clerk's file by January 10, 2003. See Order (Doc. #203) filed January 3, 2003. Plaintiff's attorney did not do so. Instead, he filed the instant motions, which bear his signature. These motions appear to be identical to the motions which plaintiff filed on January 1 and 4, 2003.
I. Motion To Recuse District Judge
Plaintiff seeks recusal under 28 U.S.C. § 144 and 455(a). Specifically, plaintiff asks the undersigned judge to recuse because (1) "her only intent has been to get rid of the case as quickly as possible without regard for the merits or any sense of fairness to plaintiff;" (2) she has given "short-shrift and uneven treatment [to] plaintiff's earlier motions and requests;" (3) "her attitude and behavior toward plaintiff . . . has been clearly hostile and antagonistic;" and (4) "Boeing was allowed to push its agenda through at the pretrial conference and through summary judgment." Amended Memorandum In Support Of Motion To Recuse District Judge (Doc. #221) filed January 13, 2003 at 2-4. Plaintiff also asserts that the undersigned judge has a history of bias in favor of corporate defendants. See id. at 1 (incorporating facts from motion to alter or amend judgment); Memorandum In Support Of Motion To Alter Or Amend Judgment (Doc. #219) filed January 10, 2003 at 5.
The Court exercises discretion in deciding whether to reuse. See Weatherhead v. Globe Int'l, Inc., 832 F.2d 1226, 1227 (10th Cir. 1987). In support of recusal under Section 144, plaintiff submits an affidavit which is filled with conclusions, rumors and innuendo regarding alleged bias by the undersigned judge. See Affidavit Of Henry F. Butler Pursuant To 28 U.S.C. § 144 (Doc. #222) filed January 23, 2003. The Court must accept as true the facts alleged in the affidavit, but it strictly construes the affidavit against plaintiff. See Weatherhead, 832 F.2d at 1227. Plaintiff's affidavit is not based on first-hand knowledge and does not "state with required particularity the identifying facts of time, place, persons, occasion, and circumstances." Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir. 1987). The affidavit is therefore insufficient to require recusal under Section 144. See Glass v. Pfeffer, 849 F.2d 1261, 1267-68 (10th Cir. 1988).
Section 144 provides that
[w]henever a party to any proceeding in district court makes and files a timely 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, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceedings.
The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.28 U.S.C. § 144. The Court does not address whether plaintiff's motion is timely under Section 144.
Likewise, plaintiff has not shown a proper basis for recusal under Section 544(a). That statute requires a judge to recuse "in any proceeding in which [her] impartiality might reasonably be questioned." 28 U.S.C. § 455(a). The judge's subjective state of mind is irrelevant. See United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993). The test is objective: "whether a reasonable person, knowing all the relevant facts, would harbor doubts about the judge's impartiality." Id. (further quotations omitted). Here, plaintiff essentially argues that adverse rulings demonstrate bias. Adverse rulings, however, are not a sufficient basis for recusal. See id., 1 F.3d at 994. The rest of plaintiff's assertions amount to "[r]umor and speculation, beliefs, conclusions, innuendo, suspicion, opinion and similar non-factual matters." Id. at 993; see also Hinman, 831 F.2d at 939 (judge should not recuse on unsupported, irrational or highly tenuous speculation). Plaintiff alleges no facts which suggest that a reasonable person would question the impartiality of the undersigned judge. Recusal under Section 455(a) is therefore inappropriate.
In its order of January 3, 2003, the Court noted that Cortland E. Berry, plaintiff's former lawyer who is now disbarred, may be engaged in the practice of law without a license in the office of plaintiff's current attorney, Glen Anderson, II. See Order (Doc. #203) at 1-2 n. 1. The Court sent a copy of its order to the Disciplinary Administrator of the State of Kansas. See id. That fact, however, does not require recusal. See Advisory Opinion No. 66, Committee On Codes Of [Judicial] Conduct (revised July 31, 1998).
II. Motion To Alter Or Amend Judgment
Plaintiff asks the Court to alter or amend its summary judgment ruling because of alleged bias by the undersigned judge. A motion to alter or amend judgment under Rule 59(e), Fed.R.Civ.P., is essentially a motion for reconsideration. See Schweitzer-Reschke v. Avnet, Inc., 881 F. Supp. 530, 532 (D.Kan. 1995). The Court has discretion whether to grant or deny a motion to reconsider. See Hancock v. City of Okla. City, 857 F.2d 1394, 1395 (10th Cir. 1988). The Court may recognize any one of three grounds justifying reconsideration: an intervening change in controlling law, availability of new evidence, or the need to correct clear error or prevent manifest injustice. See Major v. Benton, 647 F.2d 110, 112 (10th Cir. 1981); Burnett v. W. Res., Inc., 929 F. Supp. 1349, 1360 (D.Kan. 1996). A motion to reconsider is not a second opportunity for the losing party to make its strongest case, to rehash arguments, or to dress up arguments that previously failed. See Voelkel v. Gen. Motors Corp., 846 F. Supp. 1482, 1483 (D.Kan. 1994). Such motions are not appropriate if the movant only wants the Court to revisit issues already addressed or to hear new arguments or supporting facts that could have been presented originally. See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991).
Plaintiff argues that the Court wrongfully required him to support his factual assertions with record citations and that the Court required him — instead of Boeing — to show that it treated similarly situated white employees more favorably than plaintiff. See Memorandum In Support Of Motion To Alter Or Amend Judgment (Doc. #219) filed January 10, 2003 at 2-3. Plaintiff cites no legal authority which suggests that the Court applied the wrong standard. The essence of plaintiff's motion is that the Court should reconsider its ruling because of bias. As discussed supra, plaintiff has not shown a proper basis for recusal. For the reasons discussed above, plaintiff's arguments do not warrant reconsideration.
III. Motion For Relief From Judgment
Plaintiff asks the Court to relieve him from its final judgment because (1) he filed a motion to stay on December 11, 2002 which the Court inexplicably failed to resolve before ruling on defendant's summary judgment motion; and (2) in Staton v. Boeing Co., 313 F.3d 447 (9th Cir. 2002) — a class action suit in which plaintiff opted out of the plaintiff class — the Ninth Circuit Court of Appeals reversed the district court order which approved a class settlement. Under Rule 60(b), Fed.R.Civ.P., the Court may grant relief from a judgment or order for several reasons, including "(1) mistake, inadvertence, surprise, or excusable neglect; . . . (4) the judgment is void; . . . or (6) any other reason justifying relief from the operation of the judgment." Relief under Rule 60(b) is extraordinary and may only be granted in exceptional circumstances. See Yapp v. Excel Corp., 186 F.3d 1222 (10th Cir. 1999); Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co., 909 F.2d 1437, 1440 (10th Cir. 1990). Carelessness by a litigant does not afford a basis for relief under Rule 60(b)(1). See Pelican Prod. Corp. v. Marino, 893 F.2d 1143, 1146 (10th Cir. 1990).
Plaintiff asserts that the Court should relieve him from its judgment because it inexplicably failed to resolve his motion to stay before ruling on defendant's summary judgment motion. In its order of January 3, 2003, the Court noted that although plaintiff claimed to have filed a motion to stay on December 11, 2002, it had no record of any such motion. See Order (Doc. #203) at 2. The Court therefore ordered that on or before January 10, 2003, (1) opposing counsel file affidavits regarding whether they received service of said motion and if so, the date and manner of service; and (2) plaintiff's counsel file a copy of said motion which bore the original file stamp, along with an affidavit which established the circumstances surrounding the filing and service of said motion (including who filed it and the time and manner of filing and service). See id. In response, plaintiff's counsel filed his Affidavit Surrounding The Circumstances Of The Filing Of Plaintiff's Motion To Stay Further Proceeding In Light Of Ninth Circuit Class Action Ruling And Service Thereof (Doc. #215) filed January 10, 2003.
Plaintiff's counsel states that using the Court's night deposit box on December 11, 2002, he file-stamped the motion to stay but did not leave the original or a copy with the Court. Id. ¶¶ 3-4. Plaintiff's counsel states that he then mailed the original to the Court, with a copy to defense counsel. Id. ¶¶ 6-8. Opposing counsel state that they never received a copy of the motion. See Docs. #207-212, all filed January 8, 2003. Likewise, the Court did not receive the original. On this record, the Court must conclude that plaintiff's counsel did not file or serve a motion to stay on December 11, 2002, and that the affidavit of plaintiff's counsel is false. Plaintiff's argument that the Court should not have resolved the summary judgment issues without first deciding his fictitious motion to stay is frivolous.
Plaintiff's argument regarding the class action suit is nonsensical. Plaintiff argues that this Court's summary judgment ruling "should be considered null and void, since it was rendered in the absence of jurisdiction derived from [the class action district judge's] order and decree which was set aside on November 26, 2002 by the Ninth Circuit." Memorandum (Doc. #217) at 4. Plaintiff states that "jurisdiction to pursue his individual action came from the rulings in the Seattle class action and when these rulings were overturned this Court lost jurisdiction." Id. at 5. Plaintiff cites no authority to support these allegations.
Plaintiff argues that the district judge in the class action suit "chose to ignore any consideration as to whether variations in individual class members' monetary claims could lead to divergences of interest that make any unitary representation of a class problematic in the damages phase." Memorandum In Support Of Motion For Relief From Judgment (Doc. #217) filed January 10, 2003 at 4. The Ninth Circuit opinion in Staton, however, did not address any problems regarding unity of interest in the damage phase. The Ninth Circuit affirmed class certification but found that the district court should not have approved the settlement because of (1) considerations relating to attorneys fees; and (2) a large differential in the amounts paid to named and unnamed class members. See Staton, 313 F.3d at 465-87.
Plaintiff also argues that the summary judgment ruling is void because he had filed a valid notice of dismissal. See id. at 4. As with plaintiff's purported motion to stay, the Court has no record that plaintiff ever filed a notice of dismissal, and plaintiff has not produced a copy of his purported dismissal. Furthermore, pursuant to Rule 41(a), Fed.R.Civ.P., plaintiff could not have dismissed the case without a stipulation by the parties or a Court order.
In sum, plaintiff has not established exceptional circumstances which justify the extraordinary relief of setting aside a judgment under Rule 60(b). The Court therefore overrules his motion.
The Court again admonishes plaintiff's counsel that he does not advance plaintiff's interest (or his own) by playing fast and loose with the facts and making factual representations which are demonstrably false. See Rule 11, Fed.R.Civ.P. Because Boeing has not sought Rule 11 sanctions, and because plaintiff's counsel is currently the subject of professional investigation by the Kansas State Disciplinary Administrator, the Court does not address the sanctions issue at this time. It does direct the Clerk to send a copy of this order to the Disciplinary Administrator, Stanton A. Hazlett, 701 Jackson Street, First Floor, Topeka, Kansas 66603-3729.
IT IS THEREFORE ORDERED that plaintiff's Amended Motion To Recuse District Judge (Doc. #220) filed January 13, 2003 be and hereby is OVERRULED.
IT IS FURTHER ORDERED that plaintiff's Motion To Alter Or Amend Judgment (Doc. #218) filed January 10, 2003 be and hereby is OVERRULED.
IT IS FURTHER ORDERED that plaintiff's Motion For Relief From Judgment (Doc. #216) filed January 10, 2003 be and hereby is OVERRULED.
IT IS FURTHER ORDERED that the Clerk send a copy of this order to the Disciplinary Administrator, Stanton A. Hazlett, 701 Jackson Street, First Floor, Topeka, Kansas 66603-3729.