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Jack L. Frolow v. Wilson Sporting Goods Co

April 7, 2011


The opinion of the court was delivered by: Wolfson, United States District Judge:



Presently before the Court is a motion by Plaintiff, pro se, Jack L. Frolow ("Plaintiff" or "Frolow") for the recusal of the undersigned. Plaintiff is an inventor who holds numerous patents involving tennis racquets including U.S. Patent No. 4,690,405 (the "405 Patent") and U.S. Reissue Patent No. RE 33,372 (the "372 Patent"). The above-captioned matter concerns the procedures for an audit of royalties paid by Defendant to Plaintiff, the holder of the 372 Patent, during the period between 2001 through 2004. In this motion, Plaintiff argues that this Court is "biased and prejudiced against the Plaintiff," and, thus, that recusal is required. Pl's Notice of Motion at 1.*fn1 For the reasons set forth below, Plaintiff's motion is denied.


This case has a long history that spans more than five years and numerous lengthy opinions issued by two District Judges and one Magistrate Judge. As I write for the parties, only a brief summary of pertinent facts is necessary.

On February 8, 2011, this Court held an on the record status conference for the purpose of scheduling a trial date in this matter. At the hearing, Plaintiff advised the Court that he would be filing a motion for recusal based on statements made by the Court at an in-camera settlement conference that was held on April 14, 2010, nearly a year earlier.*fn2 Indeed, Plaintiff advised the Court that he had "inadvertently" recorded the April 14 settlement conference*fn3 and stated that he would provide opposing counsel and the Court with a copy of the recording and a transcript of the settlement conference.*fn4 The Court scheduled a trial date of April 25, 2011 and required Plaintiff to file his recusal motion within two weeks. Subsequently, at his request, the Court granted Plaintiff an additional two week extension to file the recusal motion. On March 8, 2011, Plaintiff filed the instant motion for recusal. In his motion, Plaintiff points to eight distinct statements that the Court allegedly made during the April 14 settlement conference that would require this Court's recusal. In addition, Plaintiff argues that this Court made improper rulings that also require recusal.


The decision of whether to recuse lies within the discretion of the trial judge. United States v. Wilensky, 757 F.2d 594, 599-600 (3d Cir.1985). There are two federal statutes that dictate the circumstances under which a federal judge should recuse. Section 455 (a) of Title 28 of the United States Code provides in pertinent part that "[a]ny justice, judge, or magistrate [magistrate judge] of the United States shall disqualify himself In any proceeding in which his impartiality might reasonably he questioned." 28 U.S.C. § 455(a). When reviewing motions for recusal, the Third Circuit applies an objective standard. See Massachusetts School of Law at Andover, Inc. v. American Bar Ass'n, 107 F.3d 1026, 1042 (3d Cir.1997). "The test for recusal under § 455(a) is whether a reasonable person, with knowledge of all the facts, would conclude that the judge's impartiality might reasonably be questioned." Allen v. Parkland Sch. Dist., 230 Fed. Appx. 189, 193 (3d Cir. April 27, 2007) (citing In re Kensington, 353 F.3d 211, 220 (3d Cir.2003). See also United States v. Martorano, 866 F.2d 62, 68 (3d Cir.1989) (stating "[m]otions to recuse under 28 U.S.C. § 455(a) must rest on ... objective facts ... not on possibilities' and unsubstantiated allegations.")

Motions for recusal are also governed by Section 144 of Title 28 of the United States Code. Recusal under 28 U.S.C. § 144 is mandatory "[w]henever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party." 28 U.S.C. § 144. A "substantial burden is imposed on the party filing an affidavit of prejudice to demonstrate that the judge is not impartial." Sharp v. Johnson, 2007 U.S. Dist. LEXIS 76254, 2007 WL 3034024 (W.D. Pa. Oct. 15, 2007). In satisfying this burden, the movant must make a three-fold showing: (1) the facts must be material and stated with particularity; (2) the facts must be such that, if true they would convince a reasonable man that a bias exists; (3) the facts must show the bias is personal, as opposed to judicial, in nature. United States v. Thompson, 483 F.2d 527, 528 (3d Cir. 1973).


In his motion, Plaintiff argues that this Court has exhibited bias and prejudice towards him such that recusal is necessary. Specifically, Plaintiff states that the Court has made "prejudicial comments regarding his age and personal choice not to marry and have children. . .it is not appropriate for Judge Wolfson to suggest that the Plaintiff should settle his case for significantly less money than he may be legally entitled to for the reasons that he is 93 years old and has no wife or children." Pl's Mot. at 1. In support of his argument, Plaintiff points to eight distinct statements that the Court allegedly made during the April 14 settlement conference that would require this Court's recusal. In addition, Plaintiff contends that various legal determinations made by the Court do "not comply with the law in this case" and also require recusal.

Initially, the Court notes that motions for recusal "must be timely filed." 28 U.S.C. § 144. In Allen, for example, the Third Circuit upheld a District Court's conclusion that a November 2005 recusal motion was untimely based on an incident that occurred in June 2005. 230 Fed. Appx. at 192. There, the Court explained, "'when a party's attorney is aware of the grounds supporting recusal, but fails to act until the judge issues an adverse ruling, the recusal [typically] is not timely." Id. (citing In re Kensington Int'l Ltd., 368 F.3d 289, 314-15 (3d Cir. 2004)). Here, Plaintiff alleges that recusal is required based, in large part, on statements made during a settlement conference that occurred in April 2010. However, Plaintiff did not file this motion until March 2011, nearly a year after the settlement conference, and, more importantly, on the eve of trial. Thus, the Court finds that Plaintiff's recusal motion was not timely filed.

However, even if the Court were to consider Plaintiff's motion to be timely filed, the Court does not find that recusal is warranted. To begin, the Court notes that Plaintiff misapprehends the purpose of in-camera settlement discussions. During a settlement conference, the court engages in shuttle diplomacy and discusses with each party and their respective counsel the party's individual motivation for settling a pending matter as opposed to continuing the litigation. The frank and open conversations that occur in the context of a settlement conference include, inter alia, a discussion of the various reasons a party may settle a pending litigation separate and apart from the merits of the underlying matter. Importantly, these in-camera discussions occur outside the presence of the opposing party and opposing counsel. The comments that Frolow contends were prejudicial were made in this context.

Turning to the merits of the recusal motion, the Court notes that of the eight comments attributed to the Court that Plaintiff argues were "inappropriate and prejudicial," Pl's Dec. at ΒΆ8, two of the comments that Plaintiff attributes to this Court were, in fact, made by Mr. Frolow. Tr. 7:19-25, 16:20-23. In addition, a third comment allegedly made by the Court was not included in the transcript provided by Frolow, thus the Court cannot consider it. Tr. 9:5-25. Finally, the Court does not understand how three of the remaining comments can even be read to express the Court's opinion as to Plaintiff's age or life choices and, thus, demonstrate bias or prejudice. Tr. 8:1("We're wasting our time."); Tr. 10:1-25 ("You don't have to have -- you weigh all of those factors, all of those together as well. . .to settle. You're really not -- in the likelihood that I could succeed on that . . . .You're not interested in settling."); Tr. 13:1-4 ("Well, you've done very well with them though."). Therefore, the Court will consider the following two statements as the basis for Plaintiff's recusal motion: (1) "I hope, Mr. Frolow, you live to 120. If that's how you want to spend your years litigating with Wilson, more power to you. Frankly, if that's what you want and that's what I'm seeing here, I don't understand, but fine . . . It's about money at this point." ...

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