Opinion
Superior Court No. S-12070.
July 5, 2006.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Mark Rindner, Judge. Supreme Court Civil No. 3AN-03-13497.
Daniel DeNardo, pro se, Anchorage.
Jennifer M. Coughlin, Preston Gates Ellis LLP, Anchorage, for Appellee.
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
Daniel DeNardo asks us to reverse the denial of his Civil Rule 60(b) motion to set aside the judgment which dismissed his lawsuit against Alaska Cleaners. His motion alleged that Alaska Cleaners committed a fraud upon the court because it knew or had reason to know DeNardo's address and telephone number when it moved for an order requiring production of that information. DeNardo also urges us to find error in the superior court's denial of his motion to recuse the presiding judge for cause. We affirm because DeNardo's Rule 60(b) motion is both untimely and inadequate on the merits, and because nothing substantiates his claims of a biased superior court judge.
II. FACTS AND PROCEEDINGS
DeNardo applied for a job with Alaska Cleaners and sued for age discrimination when he was not hired. During the proceedings, DeNardo refused to give Alaska Cleaners his physical address. Citing the need to be able to contact DeNardo on short notice and a right to "effect service of motions and other paperwork via hand delivery," Alaska Cleaners filed a motion to compel DeNardo to provide a means by which it could effect personal service on DeNardo and contact him on short notice. On January 26, 2004, Superior Court Judge Mark Rindner granted Alaska Cleaners' motion and ordered DeNardo to supply Alaska Cleaners with his physical address and a working telephone number within five days.
On February 23, 2004, Alaska Cleaners moved to compel compliance with the superior court's January 26 order. The same motion also sought sanctions against DeNardo for his failure to comply with the order to that point. On March 11, 2004, Judge Rindner granted the motion and dismissed DeNardo's case against Alaska Cleaners without prejudice. Final judgment was entered on March 23, 2004.
More than one year later, on May 31, 2005, DeNardo filed a Civil Rule 60(b) motion for relief from the judgment of dismissal. The motion claimed, in pertinent part, that Alaska Cleaners and its attorneys committed fraud upon the court because they knew of DeNardo's address and telephone number all along and, therefore, had no need to move for an order requiring DeNardo to provide that information. Judge Rindner denied the motion and shortly thereafter DeNardo filed a motion to recuse Judge Rindner because of bias. Judge Rindner deemed DeNardo's allegations of bias meritless and denied the motion. In accordance with AS 22.20.020(c), Superior Court Judge Daniel A. Hensley reviewed the recusal motion and denied it as well.
DeNardo appeals.
III. DISCUSSION
A. The Superior Court Properly Denied DeNardo's Civil Rule 60(b) Motion.
According to DeNardo, the superior court should have set aside the judgment of dismissal because Alaska Cleaners made "fraudulent misrepresentations during the course of [the] court proceedings" insofar as it knew or should have known DeNardo's contact information when it filed a motion seeking that information. That, says DeNardo, amounts to a fraud upon the court warranting relief from the judgment.
We review an order denying relief from a judgment under the abuse of discretion standard. We will not disturb the superior court's determination unless we are "left with a definite and firm conviction, after reviewing the whole record, that the trial court erred in its ruling." 1. Fraud upon the court.
Allen v. Bussell, 558 P.2d 496, 499-500 (Alaska 1976).
Buster v. Gale, 866 P.2d 837, 841 n. 9 (Alaska 1994) (quoting Peter Pan Seafoods, Inc. v. Stepanoff, 650 P.2d 375, 378-79 (Alaska 1982)).
Alaska Civil Rule 60(b), "which provides for relief from judgment, specifically authorizes a court `to set aside a judgment for fraud upon the court.'" Yet it is not easy to gain relief from a judgment on these grounds. "We have held that `[t]o constitute fraud on the court under Rule 60(b), conduct must be so egregious that it involves a corruption of the judicial process.'" Fraud on the court is limited "to very unusual cases involving `far more than an injury to a single litigant.'" Additionally, a motion for relief due to alleged fraud upon the court must be brought within a reasonable time. What constitutes a reasonable time depends on the "interests of the parties and of the courts." The question of timeliness thus depends on the facts of each case; courts must consider any prejudice caused by the delay as well as the moving party's reasons for failing to act sooner.
Higgins v. Municipality of Anchorage, 810 P.2d 149, 154 (Alaska 1991) (quoting Alaska R. Civ. P. 60(b)).
Id. (quoting Village of Chefornak v. Hooper Bay Constr. Co., 758 P.2d 1266, 1271 (Alaska 1988)).
Allen, 558 P.2d at 500 (quoting 11 C. WRIGHT A. MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL § 2870, at 253 (1973)).
Mallonee v. Grow, 502 P.2d 432, 437 (Alaska 1972).
Id.
Harris v. Westfall, 90 P.3d 167, 173 (Alaska 2004).
In this case we cannot conclude that the superior court abused its discretion in rejecting DeNardo's allegations of fraud because the acts about which DeNardo complains are not the kind of egregious conduct that amounts to a fraud upon the court. His argument centers around an allegation that Alaska Cleaners knew of DeNardo's contact information, or could have easily learned it, when it filed its motion to force the disclosure of that information. Yet when analyzing discovery disputes we traditionally "do not require a complying party to devise creative ways to obtain information that the noncomplying party controls and refuses to produce." Although the setting here is different in that DeNardo's case was not dismissed as a discovery sanction, our reasoning in the discovery cases supports the superior court's conclusion here. If Alaska Cleaners' knowledge of DeNardo's address would not excuse him from complying with the order to provide that information, then such knowledge hardly makes Alaska Cleaners' request so egregious as to perpetrate a fraud upon the court.
Coffland v. Coffland, 4 P.3d 317, 321 (Alaska 2000).
Nor did DeNardo file his motion within a reasonable time. The motion came fourteen months after the date of the notice of the judgment of dismissal. DeNardo offers no explanation for the delay and nothing in the record indicates circumstances beyond DeNardo's control which prevented him from making an earlier request for relief.
See Dewey v. Dewey, 886 P.2d 623, 629 (Alaska 1994) (concluding that motion under Rule 60(b)(6) was not brought within a reasonable time where movant could not show that circumstances beyond his control caused the delay).
With the foregoing in mind, we conclude that the superior court acted well within its discretion when denying DeNardo's Rule 60(b) motion.
B. Judge Rindner Did Not Err by Refusing To Disqualify Himself.
Alaska Statute 22.20.020 codifies the rule governing recusal of a judicial officer for cause. Subsection (a)(9) of that statute requires disqualification whenever a "judicial officer feels that, for any reason, a fair and impartial decision cannot be given." When considering recusal, a judge must "consider not only a showing of actual bias, but also the appearance of partiality." However, adverse rulings are themselves not sufficient evidence of bias. That is, "[m]ere evidence that a judge has exercised his judicial discretion in a particular way is not sufficient to require disqualification." And "[i]t should be kept in mind that a judge has as great an obligation not to disqualify himself [or herself], when there is no occasion to do so, so he [or she] has to do so in the presence of valid reasons." We review the denial of a motion to recuse for abuse of discretion.
AS 22.20.020(a)(9).
Wasserman v. Bartholomew, 38 P.3d 1162, 1170 (Alaska 2002), cert. denied, 536 U.S. 929 (2002).
Id. at 1170-1171 (quoting State v. City of Anchorage, 513 P.2d 1104, 1112 (Alaska 1973), overruled on other grounds by State v. Alex, 646 P.2d 203, 208 n. 4 (Alaska 1982)).
Amidon v. State, 604 P.2d 575, 577 (Alaska 1979).
Wasserman, 38 P.3d at 1170.
DeNardo's recusal motion attacked Judge Rindner on several levels, but made only one specific allegation of bias, as follows:
Preston Gates made a $15,000 protection and insurance contribution to the court system's National Socialist Youth Court project which seems to have gained them great mileage in avoiding liability for their criminalist conduct. Anyone associating under that abominable project should recuse themselves from any case involving Preston Gates.
Preston Gates is the law firm retained by Alaska Cleaners to defend against DeNardo's claim.
Judge Rindner found the suggestion that Preston Gates' contributions to the youth court program somehow biased him in favor of Alaska Cleaners to be frivolous. In denying DeNardo's motion, the judge also noted that "[r]uling adversely to a litigant is not a basis for recusal." On appeal, DeNardo's argument has shifted to one focused mostly on Judge Rindner's repeated rulings against him.
Whatever DeNardo's argument may be, Judge Rindner's denial of the motion to recuse was not an abuse of discretion. DeNardo's claim regarding Preston Gates' contribution to youth court is absurd on its face. The more general allegations in his brief fall well short of showing judicial bias because they do nothing more than question the judge's several rulings in favor of Alaska Cleaners. In other words, his argument appears to be that because DeNardo lost, Judge Rindner is biased. As Judge Rindner correctly pointed out, adverse rulings are themselves not grounds for recusal. For these reasons, we conclude that Judge Rindner properly denied DeNardo's recusal motion.
See Wasserman, 38 P.3d at 1170.
IV. CONCLUSION
The denial of the Civil Rule 60(b) motion and the denial of the motion to recuse Judge Rindner are AFFIRMED.