See Giebe v. Pence, 431 F.2d 942 (9th Cir. 1970) (holding a district court's denial of disqualification proper because affidavit filed in support of the motion was not that of a party to the proceeding); see also Berger v. United States, 255 U.S. 22 (1921); Pomeroy v. Merritt Plaza Nursing Home, Inc., 760 F.2d 654, 658-59 (5th Cir. 1985) ("A court may not grant relief under § 144 if a party's counsel instead of the party executes an affidavit alleging personal bias or prejudice."); Roberts v. Bailar, 625 F.2d 125, 127 (6th Cir. 1980) ("Section 144 expressly requires the 'party' to execute the document."); Martelli v. City of Sonoma, 359 F. Supp. 397 (D.C. Cal. 1973) ("The statute is explicit that the affidavit must be filed by a party to the action.").
. . . (Citations omitted.) Martelli v. City of Sonoma, 359 F. Supp. 397, 399 (N.D.Cal. 1973), aff'd, 556 F.2d 587 (9th Cir. 1977).See also Roberts v. Bailar, 625 F.2d 125, 129 (6th Cir. 1980); United States v. Sinclair, 424 F. Supp. at 718; United States v. Zagari, 419 F. Supp. at 501; Bumpus v. Uniroyal Tire Company, 385 F. Supp. 711, 715 (E.D.Pa. 1974).
Conclusory allegations without details are not sufficient. See Martelli v. City of Sonoma, 359 F.Supp. 397, 399 (N.D. Cal. 1973) (“In order to be legally sufficient[,] the allegations, taken as true, must contain information that is definite as to time and place.”).
The occurrence of ex parte conferences between the bankruptcy judge, the trustee, and Aetna's lawyer alone do not demonstrate collusion. Martelli v. City of Sonoma, 359 F. Supp. 397 (N.D.Cal. 1973). In sum, where there is no compelling reason for further review and no showing of likelihood of success in such an eventuality, we decline to exercise our discretion to grant review.
Third, much of Mitchell's affidavit contains "scurrilities and generalities [which fall] far short of the specificities required by statute." Griffith v. Edwards, 493 F.2d 495, 496 (8th Cir. 1974); Martelli v. City of Sonoma, 359 F. Supp. 397, 400 (N.D.Cal. 1973). Mitchell also contends, without making any specific claim of prejudice, that the district judge erred in excusing a juror midway through the trial with "no more than a cursory examination" into the juror's illness and that a district court standing order prohibiting the unauthorized post-verdict questioning of jurors violates his constitutional right to a trial by jury.
ming the facts are as alleged by defense counsel, those comments made, in an unrelated case two (2) years before the instant case was filed, constitute no legal basis for recusal. See, In re Cooper, 821 F.2d 833, 844 (1st Cir. 1987) (Judge's statement that lawyer would say anything under oath did not warrant disqualification); Davis v. Board of School Comm'rs, 517 F.2d 1044, 1050-51 (Judge's assertion that lawyer brought baseless civil rights suits not disqualifying), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976). Pfizer, Inc. v. Lord, 456 F.2d 532 (8th Cir. 1972) (Judge's specific comments disparaging and threatening to pending litigants regarding counsel's trial tactics did not warrant recusal); Plaquemines Parish School Board v. United States, 415 F.2d 817 (5th Cir. 1969) (Judge's stern remarks to counsel in pending case did not warrant recusal); Rosen v. Sugarman, 357 F.2d 794 (2nd Cir. 1966) (Judge's threats to hold attorney in contempt do not warrant recusal); Martelli v. City of Sonoma, 359 F. Supp. 397 (N.D.Ca. 1973) (Allegations that Judge became irate with attorney, even if taken as true, do not warrant recusal). In that prior case the comments allegedly disparaging of defense counsel involved issues in pending litigation and were not directed to "all defense counsel."
eering Milliken, Inc., D.S.C. 1975, 400 F. Supp. 497, 514-15, aff'd 4 Cir., 522 F.2d 809; Bumpus v. Uniroyal, Inc., E.D.Pa. 1974, 385 F. Supp. 711, 713.United States v. Crovedi, 7 Cir. 1972, 467 F.2d 1032, 1040, cert. denied 410 U.S. 982, 93 S.Ct. 1510, 36 L.Ed.2d 178 (although critical comment of judge was unnecessary, it was accurate and did not demonstrate a bias on the merits of the case); Botts v. United States, 9 Cir. 1969, 413 F.2d 41, 44 (demeanor of judge not sufficient to disqualify him from the case, although it might serve as basis for error); Sperry Rand Corp. v. Pentronix, Inc., E.D.Pa. 1975, 403 F. Supp. 367, 371-72 (court's comments during case did not demonstrate a predisposition on the merits); United States v. Orbiz, D.Puerto Rico 1973, 366 F. Supp. 628, 630-31 (critical statements directed against moving party, counsel or witnesses were insufficient to establish disqualifying personal bias, whether discrete or indiscrete); Martelli v. City of Sonoma, N.D.Cal. 1973, 359 F. Supp. 397, 400 (anger of judge towards counsel insufficient to disqualify judge when judge made no comment on merits of case).Botts v. United States, 9 Cir. 1969, 413 F.2d 41.
Third, much of Mitchell's affidavit contains 'scurrilities and generalities (which fall) far short of the specificities required by statute.' Griffith v. Edwards, 493 F.2d 495, 496 (8th Cir., 1974); Martelli v. City of Sonoma, 359 F.Supp. 397, 400 (N.D.Cal.1973)."
Ex-parte communications, in and of themselves, are not grounds for recusal under either 28 U.S.C. § 144, 455(a) and (b)(1), the due process clause of the Fifth Amendment to the U.S. Constitution, or the Code of Judicial Conduct.In the matter of Georgia Paneling Supply, Inc., 581 F.2d 520, 522 (5th Cir. 1978) vacated 588 F.2d 93 (5th Cir. 1978); 607 F.2d 117, 118 (5th Cir. 1979) vacated and then reinstated 613 F.2d 137 (1979, 1980); United States v. Haldeman, 559 F.2d 31, 133 n. 301 (D.C. Cir. 1976) cert. denied 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977); Howell v. Jones, 516 F.2d 53, 57 (5th Cir. 1975); Glynn v. Donnelly, 485 F.2d 692, 694 (1st Cir. 1973); Bradley v. Milliken, 426 F. Supp. 929, 941 (E.D.Mich. 1977); Lazofsky v. Sommerset Bus Co., Inc., 389 F. Supp. 1041, 1044 (E.D.N.Y. 1975); Martelli v. City of Sanoma, 359 F. Supp. 397, 400 (N.D.Calif. 1973). 28 U.S.C. § 144, 455(a) and (b)(1) have the same legal meaning whether for purposes of bias and prejudice, or when the impartiality of the judge might reasonably be questioned.
Numerous other decisions are in accord. See also, e.g., U.S. ex rel. Wilson v. Coughlin, 472 F.2d 100, 104 (7th Cir. 1973); Universal City Studios, Inc. v. Reimerdes, 104 F.Supp.2d 334, 348 (S.D.N.Y. 2000); Paschall v. Mayone, 454 F.Supp. 1289, 1300 (S.D.N.Y. 1978); Martelli v. City of Sonoma, 359 F.Supp. 397, 399 (N.D.Cal. 1973). Moreover, even assuming Jou had complied with the statutory requirements, Shaw's declaration failed to sufficiently state facts showing bias or prejudice on the part of Judge McKenna.