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VENUTO v. WITCO CORP.

December 17, 1992

RALPH VENUTO, et al., Plaintiffs,
v.
WITCO CORPORATION, et al., Defendants. BARRY VANGARELLI, etc., Plaintiffs, v. WITCO CORPORATION, Defendant.


RODRIGUEZ


The opinion of the court was delivered by: JOSEPH H. RODRIGUEZ

AMENDED ORDER

This matter is before the court on the plaintiffs' motions for recusal in the above-captioned cases, which have been consolidated for the purpose of this order. For the reasons set forth below, the court denies the motions.

 I. BACKGROUND

 On October 2, 1992, counsel for the plaintiffs, Steven M. Kramer, wrote a letter to the court stating that I should recuse myself on two grounds: 1) That Brendan Byrne, counsel for the defendants, appointed me to the New Jersey State Commission of Investigation (SCI) when he was governor; and 2) that, during the Lightning Lube trial, *fn1" I met with a "person associated closely with Mr. Byrne's firm," whom Governor Byrne later identified as a consultant to defendants on the Witco litigation. I responded to Mr. Kramer's letter on October 9, 1992, telling him that I saw no grounds for recusal, but that he should file a formal motion if he wished to proceed with the matter.

 Mr. Kramer filed formal motions for recusal on November 4, 1992, this time referring only to the alleged appointment by Governor Byrne, and not to the alleged meeting with the unnamed consultant. *fn2" Counsel for the plaintiffs moves for the court's recusal under 28 U.S.C. § 455(a), asserting that the court's "association with [the defendants'] counsel creates an appearance of partiality requiring the presiding Judge's recusal." (Pl.'s Mot. at 1.) To support his allegation, Mr. Kramer cites Senator Bill Bradley's testimony before the Senate Judiciary Committee, which includes the following statement: "In the Democratic administration of Bendan Byrne, Mr. Rodriguez was tapped to chair the State Commission of Investigations [sic]." (See Pl.'s Ex: A.)

 The defendants show, through affidavits and other documentation, that former Governor William Cahill made the appointment to the SCI. (See Defs.' Attach.: Certification of John F. McCarthy, Jr. of 11/7/92, P 5.; Certified Copy of Letter from William T. Cahill, Governor of New Jersey, to Hon. Robert M. Felcey of 12/26/73.) The defendants refute the plaintiffs' allegation as factually and legally unfounded, and claim that the motions are a "transparent attempt to delay decision on the pending motions in [both cases]." *fn3" (Defs.' Mem. Opp'n at 3.)

 II. DISCUSSION

 A. The Standard for Recusal under § 455(a)

 The plaintiffs move for the court's recusal under 28 U.S.C. 455(a), which states the following: "Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The Third Circuit has interpreted § 455(a) as requiring disqualification if there is a "reasonable factual basis for doubting the judge's impartiality . . ." U.S. v. Nobel, 696 F.2d 231, 235 (3d Cir. 1982), cert. denied, 462 U.S. 1118, 77 L. Ed. 2d 1348, 103 S. Ct. 3086 (1983) (quoting H.R.Rep. No. 1453, 93d Cong., 2d Sess. 2, at 5, reprinted in 1974 U.S.Code Cong. & Ad.News 6351, 6354-5). See also, U.S. v. Dalfonso, 707 F.2d 757, 760 (3d Cir. 1983) ("judge should recuse himself where a reasonable [person] knowing all the circumstances would harbor doubts concerning the judge's impartiality"). The cases also make clear that evidence of bias must relate to extrajudicial events or sources of information, rather than stem from facts a judge learns from his or her involvement in a case. U.S. v. Rosenberg, 806 F.2d 1169 (3d Cir. 1986).

 Just as a judge should remove him or herself from a case if the moving party raises sufficient allegations regarding the judge's bias, a judge has an affirmative duty not to recuse him or herself if the movant fails to establish a reasonable doubt concerning his or her impartiality. Grand Entertainment Group Ltd. v. Arazy, 676 F.Supp. 616, 619 (E.D.Pa. 1987). In U.S. v. Sciarra, 851 F.2d 621 (3d Cir. 1988), The Third Circuit explained that the court deciding the recusal motion may scrutinize "the factual accuracy of affidavits submitted pursuant to 28 U.S.C. § 455." Id. at 625 n.12 (citations omitted).

 Though § 455(a) does not set forth a specific procedure for seeking a judge's recusal, courts look for guidance to the procedural requirements of § 144, which states:

 [The moving party shall file an affidavit which] shall state the facts and the reasons for the belief that bias or prejudice exists . . . [and] shall be accompanied by a certificate of counsel of record stating that it is made in good faith. *fn4"

 28 U.S.C. § 144; See also U.S. v. Furst, 886 F.2d 558, 582 (3d Cir. 1989) (section 144, along with related case law, provides guidance as to procedure for ...


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