United States District Court, D. New Jersey
August 3, 2005.
DANIEL J. O'CALLAGHAN, Plaintiff,
ADAM SIFRE, ESQ., JAMES INIQUEZ, ESQ., EINHORN, HARRIS, ASCHER, BARBARITO, FROST & IRONSON, P.C., SUSAN EDWARDS, PhD., HON. PETER C. HARVEY, HON. JOHN B. DANGLER, Defendants.
The opinion of the court was delivered by: JOEL PISANO, District Judge
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] OPINION
On May 24, 2005, Daniel J. O'Callaghan, Esq. ("Plaintiff"),
filed a pro se complaint against various lawyers and members of
the judiciary, complaining of misconduct in various state court
proceedings related to an ongoing custody dispute over a minor
child. On June 22, 2005, before the complaint was served, the
Court dismissed the case, sua sponte, finding the complaint
failed to comply with Rule 8(a) of the Federal Rules of Civil
Procedure. The complaint did not contain "a short and plain
statement of the claim," but rather was confusing, unnecessarily
verbose, and lacked any cognizable legal claim.
Plaintiff responded on July 12, 2005, seeking: (1) the Court's
recusal, (2) reassignment of the case, (3) reargument, and (4)
permission to file an interlocutory appeal pursuant to
28 U.S.C. § 1292(b). Plaintiff makes various references in his supporting
brief to other cases he has pending in this district, and appears
to make arguments related to those cases. Despite Plaintiff's
rather confusing presentation, the Court is able to deny all
requested forms of relief. Plaintiff's recusal motion is governed by 28 U.S.C. § 144 and
28 U.S.C. § 455. The decision to recuse lies within the
discretion of the trial judge. U.S. v. Wilensky, 757 F.2d 594,
599-600 (3d Cir. 1985). Litigants do not have the right to demand
recusal based on unfavorable rulings, SecuraComm Consulting,
Inc. v. Securacom Inc., 224 F.3d 273, 278 (3d Cir. 2000), and
they cannot use sections 144 and 455 to manipulate the judicial
process to the point of choosing their own judge. Alexander v.
Primerica Holdings, Inc., 10 F.3d 155, 162 (3d Cir. 1993).
Plaintiff attempts to accomplish just that. He argues that his
case must be heard before a judge with absolutely no relationship
to the New Jersey state judiciary or the state bar association.
Not surprisingly, Plaintiff cites to no authority requiring that
a judge who formerly practiced law in a particular state recuse
oneself from any lawsuits containing allegations against lawyers
and judges from that state. Such a position is preposterous. The
Court will nonetheless briefly address the recusal statutes
Pursuant to 28 U.S.C. § 144, "[w]henever a party . . . makes
and filed a timely and sufficient affidavit that the judge . . .
has a personal bias or prejudice . . . such judge shall proceed
no further therein, but another judge shall be assigned to hear
such proceeding." Since Plaintiff did not submit a sufficient
affidavit, the Court must deny Plaintiff's demand for recusal
under section 144. United States v. Martorano, 886 F.2d 62, 66,
67 n. 5 (3d Cir. 1989) (affirming dismissal of recusal motion
under 144 because petitioner failed to attach affidavit).
Section 455 requires a judge to disqualify oneself "in any
proceeding in which his impartiality might reasonably be
questioned." Under § 455(a), the test is "whether a reasonable
person, with knowledge of all the facts, would conclude that the
judge's impartiality might reasonably be questioned." In re
Kensington Int'l Ltd., 368 F.3d 289, 201 (3d Cir. 2004). The critical factor in assessing a judge's partiality is the
inability to render a fair judgment. Liteky v. U.S.,
510 U.S. 540, 551 (1994). Section 455(b)(1) is similar to section 144 in
that it requires a judge's recusal if he or she has a personal
bias or prejudice towards a party, and such bias is based on
extrajudicial sources. United States v. Bertoli, 40 F.3d 1384,
1412 (3d Cir. 1994). Aside from pointing to this judge's
professional background, Plaintiff puts forth no argument
suggesting that the Court is incapable of fair judgment or has
acted with any type of bias. After a fair reading of the
complaint, the Court dismissed it without prejudice as
unintelligible. Plaintiff cannot seek the Court's recusal based
on his displeasure with the Court's disposition of his complaint.
Plaintiff is an attorney and is surely capable of re-filing a
complaint in compliance with Rule 8. Accordingly, Plaintiff's
motion to recuse is denied.
Plaintiff also seeks reassignment to another judge,
specifically either the Honorable Joseph A. Greenaway or "a
judicial officer entirely absent association with the State of
New Jersey judiciary in any capacity." (Certification in Support
of Plaintiff's Motion for Reassignment, ¶ 1). Plaintiff makes no
argument as to why he is entitled to reassignment, although the
Court presumes that he has other matters before Judge Greenaway.
In his one-page brief, Plaintiff simply recites portions of Local
Civil Rule 40.1. Citing to the rule only diminishes his position,
however, as it explicitly states that objections to the case
assignment must be made to the Chief Judge, the only judge with
authority to reassign a case. The question of reassignment,
therefore, is not properly before this Court.
Next, Plaintiff requests reargument under Local Civil Rule
7.1(g). Reargument is appropriate if Plaintiff can make a
"showing that dispositive factual matters or controlling
decisions of law were overlooked by the court in reaching its
prior decision." United States v. Compaction Sys. Corp., 88 F. Supp. 2d 339, 345 (D.N.J. 1999).
Plaintiff alleges that the complaint was necessarily long because
of the lengthy factual background and the need for specificity in
conspiracy cases. However, Rule 9 of the Federal Rules of Civil
Procedure only requires that allegations of fraud be pled with
particularity, not civil conspiracy. Moreover, Rule 8(e) states
that "each averment of a pleading shall be simple, concise, and
direct." In the Court's view, Plaintiff's complaint fails to
comply with Rules 8(a) and 8(e), and the request for reargument
Finally, Plaintiff moves for relief under 28 U.S.C. § 1292(b),
which involves permission to appeal an interlocutory order. This
Court's prior Order dismissed the complaint, and is therefore a
final order subject to appeal. Accordingly, there is nothing to
consider under the statute.
Based on the foregoing, Plaintiff's requests for relief are
DENIED. An appropriate Order follows.