MARY M. LISI, Chief District Judge.
The plaintiffs in this case, Louis Paolino and Marie Issa (the "Plaintiffs"), are the current owners
According to the one-count complaint (the "Complaint"), the Plaintiffs allege that the Defendants are in continuing violation of the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq., because "they do not have a valid RIPDES [Rhode Island Pollutant Discharge Elimination System] permit in the name of the actual owner and operator of the Property; and (2) they are continually discharging pollutants into United States waters at levels in excess of state water quality standards, federal effluent limitations, and other restrictions imposed by their RIPDES permit."
The matter is before the Court on the Plaintiffs' motion for recusal pursuant to 28 U.S.C. § 455(a)
The underlying facts of this case and its somewhat lengthy procedural path have been described, in some detail, in the orders issued by this court and in the opinion of the First Circuit Court of Appeals, in which the First Circuit reversed, in part, this Court's dismissal of the case and remanded the case to this Court for further proceedings.
The Plaintiffs first brought suit against the Defendants in Rhode Island state court in 2006. After the Plaintiffs amended their complaint to include various federal environmental statutes, the Defendants removed the case to this Court in September 2009. The Defendants filed a motion to dismiss the case, the resolution of which was undertaken by Chief Judge McAuliffe of the United States District Court of the District of New Hampshire. In March 2011, the federal claims were dismissed without prejudice for lack of proper notice and the state claims were remanded to the Rhode Island Superior Court.
In June 2011, the Plaintiffs filed a new Complaint (C.A. No. 11-228-ML) in this Court, asserting claims under the CWA and for trespass. Plaintiffs' motion for a TRO was denied. In the course of a subsequent preliminary injunction hearing, the Court raised the issue of subject-matter jurisdiction, based on the lack of Plaintiffs' full contact information on the most recent pre-litigation notice. One week after that hearing, the parties filed a stipulation of dismissal without prejudice.
On January 20, 2012, the Plaintiffs filed the most recent Complaint, in which they allege violations of the CWA. The Defendants responded with a motion to dismiss the Complaint for defective pre-suit notice and for defective service on Defendant Robert Yabroudy ("Yabroudy"). On this occasion, the Defendants sought dismissal of the case with prejudice for the Plaintiffs' alleged repeated failure to comply with mandatory prerequisites under the CWA.
On July 26, 2012, this Court granted the Defendants' motion and dismissed the case with prejudice.
On May 31, 2013, the Plaintiffs filed a motion for recusal (Docket # 21); a memorandum of law in support of the motion (Docket # 21-2); an affidavit of Defendant's lead counsel, Michael J. O'Neill ("Attorney O'Neill"), together with copies of two articles printed from news websites (Docket # 21-1, # 22-1); and an affidavit of Plaintiff Louis Paolino (Docket # 21-3, # 22). On June 3, 2013, the Court conducted a Rule 16 conference with counsel of record and issued a pretrial scheduling order specifying deadlines for discovery and for the filing of dispositive motions. (Docket # 23). Defendants' counsel filed a response in opposition to Plaintiffs' motion for recusal on June 12, 2013. (Docket # 24).
Pursuant to 28 U.S.C. § 455(a), "[a]ny justice, judge or magistrate of the United States shall disqualify [herself] in any proceeding in which [her] impartiality might reasonably be questioned." 28 U.S.C. § 455(a);
The provision "seeks to balance two competing policy considerations: first, that `courts must not only be, but seem to be, free of bias or prejudice,'
In "determining whether a judge's impartiality might reasonably be questioned," the First Circuit follows the standard set forth in
Disqualification is considered appropriate "only when the charge is supported by a factual basis, and when the facts asserted `provide what an objective, knowledgeable member of the public would find to be a reasonable basis for doubting the judge's impartiality.'"
District courts are allowed "`a range of discretion' in the decision not to recuse."
Under 28 U.S.C. § 455(b), a judge should recuse herself in circumstances where, inter alia, she "has personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding." 28 U.S.C. § 455(b);
The Plaintiffs' request that this Court recuse itself pursuant to 28 U.S.C. § 455(a) and § 455(b) is based on five separate grounds. First, the Plaintiffs assert that the Court "suggested a settlement favorable to the Defendants." Pltfs. Mem. 1. Second, the Plaintiffs state that the Court raised, sua sponte, the question of defective notice during the preliminary injunction hearing in the second case brought by the Plaintiffs.
In response, the Defendants address only Plaintiffs' third and fifth reason. Defs.' Obj. 3 (Docket # 24). The Defendants submit that neither prior adverse rulings against the Plaintiffs, nor the First Circuit's reversal, in part, of this Court's dismissal of the case constitute probative evidence of bias or prejudice.
On June 21, 2011, the parties met before this Court on Plaintiffs' motion for TRO. Although a court reporter was present throughout the in-chambers hearing, the hearing was not formally recorded; neither party requested that a formal record be made. The Court, after obtaining some background information on the case and listening to the parties' respective arguments, denied the motion for TRO. The Court then advised the parties that it would schedule a preliminary injunction hearing after the Defendants had filed a responsive pleading. At the conclusion of the conference, the Court inquired, as it does in every civil case, whether the parties had taken an opportunity to talk to one another. The Court suggested that the parties consider a practical approach before getting too far into litigating the case. Based on the parties' representation that the alleged contamination and trespass affected primarily a small portion of the Plaintiffs' five-acre property, the Court asked Plaintiffs' counsel whether Plaintiffs had considered quit-claiming that small portion to the Defendants, thus ridding itself of the polluted and/or encroached upon property. There was no suggestion that Plaintiffs should simply gift their property to the Defendants without receiving consideration.
None of these facts should lead a reasonable person to question this Court's impartiality. The hearing was, as many TRO hearings are, informal and not on the record. The Court, after addressing the Plaintiffs' motion, encouraged the parties to engage in settlement discussions and offered but one possible solution for consideration. Although Plaintiff Louis Paolino asserts in his affidavit that he considered the Court's suggestion totally unreasonable and unacceptable, Paolino Aff. 1 (Docket # 21-3), the § 455(a) standard to determine impartiality is an objective one and such an assertion does not constitute factual grounds to doubt the impartiality of this Court.
Prior to the hearing on Plaintiffs' motion for preliminary injunction, the Defendants asserted in their answer to the Complaint that Plaintiffs' pre-suit notice was not valid,
At the beginning of the August 11, 2011 hearing on the Plaintiffs' motion, the Court advised Plaintiffs' counsel that Defendants had again raised the lack of notice. The Court inquired whether the Plaintiffs' addresses and phone numbers were listed anywhere on the March 18, 2011 notification letter. The Court also noted that the March 30, 2011 order — by which Plaintiffs' previous federal claims were dismissed for deficient notice — indicated that strict compliance with notice requirements was mandatory.
As the Court explained on August 11, 2011, it addressed the question of sufficiency of the pre-suit notice at the outset of the hearing because the Defendants had raised that issue as a defense and because the March 30, 2011 order pointed out that "[P]laintiffs' (as distinct from their counsel's) full contact information, including their names, addresses, and telephone numbers" was required.
Although it is understandable that Plaintiff Louis Paolino was, as he states in his affidavit, surprised and upset that the preliminary injunction hearing did not take place, nothing occurred in the proceedings that would lead a reasonable person to doubt the impartiality of this Court. The question of insufficiency of notice had been raised by the Defendants; the CWA's notice requirements had been explained, in some detail, by the March 30, 2011 Order; and it was appropriate for this Court to raise the question of subject-matter jurisdiction before proceeding further.
At the outset, the Court notes that it is well established that "[a] court sometimes may decide factual challenges under Rule 12(b)(1) without convening an evidentiary hearing."
It is correct that the First Circuit Court of Appeals disagreed with this Court's ultimate conclusion regarding the adequacy of Plaintiffs' notice. As the First Circuit stated in the opening sentence of its opinion, "[t]his appeal presents an
In sum, both parties had a full and fair opportunity to present relevant facts and arguments in their submissions. The dismissal of the Plaintiffs' claims by this Court, although it was subsequently reversed, in part, was not contrary to established law in this Circuit. As such, neither the proceeding itself, nor the conclusion by this Court, would raise doubt in a reasonable person as to this Court's impartiality.
This case originated in Rhode Island state court. It was removed by the Defendants to this Court after the Plaintiffs added claims under federal law. C.A. No. 09-413-ML. Following dismissal of the federal claims, all state law claims were remanded to Rhode Island state court.
At the hearing on Plaintiffs' motion for TRO on June 21, 2011, the parties informed the Court that motions for summary judgment in the state law claims were scheduled for argument on July 12, 2011 and that a related matter was still pending before the Rhode Island Department of Environmental Management ("RIDEM").
Subsequent pleadings submitted by the Defendants included information regarding the progress of the state case. The Defendants' June 29, 2011 answer in C.A. No. 11-228-ML asserted that Plaintiffs were precluded from maintaining a trespass claim in this case because they had a prior action pending in the Providence County Superior Court. Answer at 9, ¶ 6 (C.A. No. 11-228-ML, Docket # 9). According to the Defendant's Motion to dismiss, all discovery in the state case was complete by February 14, 2012 and the action had been placed on the trial calendar. Defs.' Mem. at 3 (Docket #6). In their March 12, 2012 reply, the Defendants stated that the parties were scheduled to try the state court action on April 30, 2012. Reply at 4 (Docket #9). Shortly before the issuance of this Court's dismissal of the case, the calendar clerk was notified of the outcome in the state court case via e-mail by a paralegal in Attorney Corrente's law firm; the clerk appropriately forwarded that information to the Court.
The Plaintiffs' argument with respect to this information — which was included as a footnote in the Court's Memorandum and Order from July 26, 2012 — is not fully developed; the Plaintiffs merely point out that the information was not in the record of this case. Although, perhaps, out of an abundance of caution, Plaintiffs' counsel should have been cc'ed on the e-mail, the communication does not provide a ground for reasonably questioning the impartiality of this Court under 28 U.S.C. § 455(a), nor does it constitute "personal knowledge of disputed evidentiary facts concerning the proceedings." 28 U.S.C. § 455(b).
Both parties were instructed at the TRO hearing to provide this Court with updates in the state case, particularly in light of the parties' dispute whether the Complaint asserted trespass claims identical to those raised in state court. The accuracy of the information is not disputed by the Plaintiffs; the outcome of the state suit is a matter of public record; and the information was certainly known to the Plaintiffs. The reference to the state case was not included in the Court's analysis and was relegated to a footnote. In sum, the information was not personal, and it did not stem from an extra-judicial source.
Plaintiff Louis Paolino asserts that he has read news stories in which it was stated that this Court acquitted a defendant represented by Attorney Corrente in a jury-waived criminal trial after finding the complaining witness not credible.
The Court disagrees. The trial over which this Court presided was a criminal matter, which implicates a considerably higher burden of proof that must be met by the prosecution. In the criminal case, the complaining witness was rigorously cross-examined and evidence was submitted by the defendant that directly challenged the complaining witness's version of the events. By contrast, in the subsequent civil trial, the plaintiff/complaining witness bore a substantially lighter burden of proof. Moreover, the defendant in the civil case elected not to appear. Following entry of default against the defendant regarding liability, the complaining witness's testimony and the evidence that was submitted during an evidentiary hearing regarding damages remained entirely unchallenged.
Under those circumstances, it is not at all surprising that conclusions as to the complaining witness's credibility varied. Therefore, the different findings by two different judges in two different types of proceedings offer no grounds for a reasonable person to doubt the impartiality of this Court.
Finally, Plaintiffs' counsel appears to express concern that, at the TRO hearing, Attorney Corrente was addressed by the Court by his first name, whereas Attorney O'Neill was addressed by his surname. Aff. of Attorney O'Neill at 2, ¶ 4 (Docket #21-1). The Court assures Plaintiffs' counsel that the different form of address is not an indication of preference or bias; it merely reflects that the Court had never before met Attorney O'Neill.
For the reasons stated herein, the Plaintiffs' motion for recusal is DENIED.
SO ORDERED.
Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
