David W. McKeague, United States District Judge.
This is an employment discrimination action brought by a pro se plaintiff against her former employer. Plaintiff's second amended complaint asserts claims under 42 U.S.C. § 1981 for race discrimination and state-law claims for wrongful termination and negligent discharge. This is the second lawsuit brought by plaintiff against Federal Express Corporation challenging the legality of her discharge from employment. The first lawsuit, Watts v. Federal Express Corp., case no. 1:99-cv-701 (W.D.Mich.), ended on July 24, 2001, with the entry of a summary judgment against plaintiff and in favor of defendant.
Plaintiff has now filed an affidavit pursuant to 28 U.S.C. § 144 and 455, accusing the undersigned judge of personal bias and prejudice and requesting recusal.
The allegations of plaintiff's affidavit are summarized below:
•This court ruled on the evidentiary facts in the previous case in adjudicating the motion for summary judgment and therefore can no longer be impartial.
•Plaintiff did not receive a fair trial or fair rulings from this court in the previous case.
•This court displayed personal bias and prejudice towards plaintiff in the previous case.
•This court has personal knowledge of the facts of this case because of his familiarity with the previous case.
•Language used by the court in its previous summary judgment opinion somehow indicates "knowledge of the facts outside of the court."
•The court accepted a letter from defendant's attorney in the previous case dated October 5, 2001, in violation of court rules, creating a conflict of interest and rendering this court a "material witness."
•This court has a potential financial interest in the case.
•This court did not allow plaintiff adequate time to respond to the summary judgment motion in the previous case.
•This court has evidenced favoritism toward defendant.
•This court refused to enter a default judgment against defendant in the present case.
•This court's decision in the previous case was a miscarriage of justice.
Although plaintiff's allegations are set forth in eighteen numbered paragraphs, many are duplicative. The foregoing captures the essence of plaintiff's allegations of bias.
Discussion
Recusal of a judge is governed by 28 U.S.C. § 144 and 455. Disqualification under both sections of the Judicial Code must be predicated upon "extrajudicial conduct rather than on judicial conduct." See Consolidated Ry. Corp. v. Yashinsky, 170 F.3d 591, 597 (6th Cir. 1999). Disqualification is required if the judge demonstrates "a personal bias as distinguished from a judicial one, arising out of the judge's background and association and not from the judge's view of the law." City of Cleveland v. Krupanski, 619 F.2d 576, 578 (6th Cir. 1980). The movant has the burden of convincing the court that a reasonable person would find that such bias exists. Consolidated Ry. Corp., 170 F.3d at 597.
Plaintiff's allegations do not meet this standard. Most of plaintiff's assertions arise from this court's handling of plaintiff's previous or present lawsuit. Plaintiff claims that this court has knowledge of facts as a result of that case and has already expressed conclusions in previous written opinions. This is precisely the kind of allegation that the courts routinely reject as grounds for recusal. The Supreme Court has remarked that previous judicial rulings alone "almost never" constitute a valid basis for a motion based on bias or partiality. Litekey v. United States, 510 U.S. 540, 555 (1994) . "[O]pinions formed by a judge on the basis of facts introduced or events occurring in the course of current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible." Id. This court has scrutinized the record to determine whether any of its previous actions or rulings would meet this standard. The record discloses that in the previous case (case no. 1:99-cv-701), plaintiff never appeared before this court in person for any reason. Very early in the case, the court entered an order of reference to magistrate Judge Joseph G. Scoville, referring to him all pretrial motions and conferences. (Order of 12/6/99, docket # 7). Thereafter, the magistrate judge conducted a Rule 16 scheduling conference and numerous motion hearings. The undersigned judge, however, conducted no proceedings, whether in court or in chambers. Consequently, plaintiff cannot point to any prejudicial statement made by this court to her, either on or off the record, since this court has never laid eyes on plaintiff and has never addressed her either in or out of court.
This court's first contact with the previous case was in considering defendant's motion for summary judgment, which was decided without oral argument. The court entered a twenty-four-page opinion on July 24, 2001, granting the motion. The court has scrutinized its opinion and finds no basis upon which a reasonable person could conclude that the court holds any bias or ill will toward plaintiff as a person. The opinion discloses a rather straightforward application of the analysis applicable to summary judgment motions and Supreme Court and Sixth Circuit jurisprudence concerning establishment of the prima facie case in a Title VII action. Plaintiff also points to this court's conduct in the present case. Again, the magistrate judge has handled all in-court proceedings pursuant to an order of reference, with this court's only action being the entry of an order affirming the report and recommendation of the magistrate judge on motions filed early in the case. (Order of 5/10/01, docket # 18). The order was a mere one-page document and displays no animosity toward either party.
Some of plaintiff's allegations do border upon a claim of extrajudicial bias, but they are conclusory and patently false. Plaintiff claims that this court somehow has a "potential financial interest trade" with defendant. (Aff., ¶ 6). Of course, a judge with a financial interest in a party litigant or an interest in the outcome of the proceeding must be disqualified. 28 U.S.C. § 455(b)(4). Plaintiff does not attempt to explain the source or nature of this court's financial interest. The fact is the court has none. Plaintiff also accuses the court of violating the court rules by accepting a letter dated October 5, 2001, from defense counsel. (Aff., ¶¶ 6-7). The court has reviewed the file in this matter, which does not contain a letter from defense counsel at or around October 5, 2001. The court files in both this and the previous case are replete with letters from plaintiff. All letters, whether from plaintiff or defense counsel, are docketed and made a part of the public record. It is unclear to the court how acceptance and docketing of a letter from defense counsel can be evidence of bias.
Finally, plaintiff asserts that the mere filing of her affidavit requires recusal under 28 U.S.C. § 144. The law is otherwise. To warrant recusal under section 144, an affidavit must be "sufficient." To be sufficient under section 144, the affidavit must allege facts which a reasonable person would believe indicate that the judge has a personal bias against the moving party. General Aviation, Inc. v. Cessna Aircraft Co., 915 F.2d 1038, 1043 (6th Cir. 1990). An insufficient affidavit, containing only conclusory statements or allegations of judicial rather than extrajudicial bias, is not sufficient. See Ullmo v. Gilmour Acad., No. 00-3946, ___ F.3d ___, 2001 WL 1555748, at * 7-8 (6th Cir. Dec.7, 2001).
Plaintiff's request for recusal is frivolous. Her affidavit, taken as a motion for recusal, will be denied.
ORDER
In accordance with the memorandum opinion filed this date:
IT IS ORDERED that plaintiff's affidavit of personal bias and prejudice (docket # 74), construed as a motion for recusal, be and hereby is DENIED.