Opinion
No. 05 Civ. 2072 (SAS).
March 9, 2005
Denise L. Savage, Esq., Savage Associates, P.C., White Plains, NY, Attorney for Petitioner.
The Honorable Stuart M. Bernstein, United States Bankruptcy Court for the Southern District of New York, New York, NY, Attorney for Respondent.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Petitioner Savage Associates, P.C. ("Savage") seeks a writ of mandamus directing the Honorable Stuart M. Bernstein to recuse himself from the Chapter 11 bankruptcy case In re Teligent, Inc. Savage is the Unrepresented Claims Estate Representative for the debtor Teligent, Inc. In an Order dated February 3, 2005, Judge Bernstein denied Savage's motion to disqualify him for bias. On February 28, 2005, this Court denied Savage's request for a stay of the bankruptcy proceedings pending the determination of this petition. For the reasons stated below, Savage's petition is denied.
See In re Savage Assocs., No. 05 Civ. 2072, 2005 WL 488643 (S.D.N.Y. Feb. 28, 2005).
II. APPLICABLE LAW
Granting a writ of mandamus is warranted "only where the petitioner's right to relief is clear and indisputable."
In re Dow Corning Corp., 261 F.3d 280, 285 (2d Cir. 2001). Accord Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 18 (1983).
The denial of a recusal motion is reviewed for abuse of discretion. The Second Circuit has held that 28 U.S.C. § 455 requires disqualification where "an objective, disinterested observer fully informed of the underlying facts [would] entertain significant doubt that justice would be done absent recusal."
See In re Aguinda, 241 F.3d 194, 200 (2d Cir. 2001).
Id. at 201 (quotation marks omitted).
III. DISCUSSION
The crux of Savage's petition is that Judge Bernstein engaged in an "extrajudicial search" for documents not placed in the record by the parties when, in the course of deciding a matter before him, he consulted public records of an SEC filing on the EDGAR electronic database. This argument is entirely without merit because Savage itself attached excerpts of the allegedly objectionable documents to its filings regarding the matter at issue. By excerpting portions of SEC filings, Savage put those entire documents into issue. In any case, even if Savage had not excerpted the documents, Judge Bernstein's consideration of public SEC filings would not require recusal under section 455. At most, such conduct might warrant an appeal seeking reversal.
Savage's Petition for Writ of Mandamus ("Savage Pet.") at 29.
See In re Teligent, Inc., No. 01-12974, slip op. at 11, 16 (Bankr. S.D.N.Y. Feb. 3, 2005), Ex. E to Savage Pet.
See Kramer v. Time Warner, Inc., 937 F.2d 767, 773-774 (2d Cir. 1991). See also Fed.R.Evid. 106 ("When a writing or a recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.").
Savage's other complaints do not evince bias on Judge Bernstein's part. Rather, Savage merely offers a litany of instances in which Judge Bernstein disagreed with Savage's arguments in various contexts. "[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion." Similarly, "judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible." The remarks cited by Savage display no such deep-seated antagonism.
Liteky v. United States, 510 U.S. 540, 555 (1994).
Id.
Thus, Savage has failed to demonstrate a clear and indisputable right to an order requiring Judge Bernstein to recuse himself from the Chapter 11 proceedings.
IV. CONCLUSION
For the foregoing reasons, Savage's petition for a writ of mandamus is denied. The Clerk of the Court is directed to close this motion (docket # 1) and this case.
SO ORDERED.