Sturgill v. Mosley et al

UNITED STATES BANKRUPTCY COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
In re: 	TOMMY M. M OSLEY
SUSAN K. M OSLEY,
Debtors
Case No. 	05-42014
Adv. No. 	05-3480
BILLIE J. STURGILL ,
Plaintiff
v.
TOMMY M. M OSLEY,
Defendant
Judge Waldron
Chapter 7
DECISION DENYING MOTION FOR
DISQUALIFICATION OF THE HON.
THOMAS F. WALDRON
DATED AT DAYTON, OHIO this 1st Day of March, 2007:
This document has been electronically entered in the records of the United
States Bankruptcy Court for the Southern District of Ohio.
IT IS SO ORDERED.
Dated: March 01, 2007
____________________________________________________________
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Parties’ Filings
Pending before the court is the recent filing by Mary K. C. Soter, attorney for the
Plaintiff (the “Movant”), titled Motion For Disqualification Of The Hon. Thomas F.
Waldron (Doc. 118), which provides, in part:
Now comes the Plaintiff and moves the Court for an order disqualifying the
Hon. Thomas F. Waldron in the within adversarial action based upon 28
USC § 455 Disqualification of justice, judge, or magistrate judge, due to
the fact that the impartiality of the said Judge might reasonable be
questioned, and the Judge harbors an aversion, hostility, or disposition of
a kind that a fair-minded person could not set aside when judging the
dispute, as is more fully set forth in the Memorandum and Affidavit below.
This motion is accompanied by an Affidavit which provides:
Mary K. C. Soter, being first duly cautioned and sworn, states that she
believes that due to his antagonism toward her, including the statements
made on the record at the hearing held February 7, 2007, in which he had
prejudged the case and advised Mrs. Soter that “it is not going to go very
well for you today” prior to hearing any testimony or seeing any evidence,
and his false accusations that she had been the subject of discovery
violations every time she had been before him, that this Judge is unable to
give Mrs. Billie J. Sturgill a fair and impartial trial.
Affiant further states that she has not been the subject of a Motion to
Compel in the United States Bankruptcy Court in the past, has never been
found guilty of any discovery violation in thirty-one years of practice, and
the allegations made by the Judge against her were totally false.
The motion further contains, as Plaintiff’s Exhibit A, a transcript of a hearing held
February 7, 2007 (the “Hearing”).
Also filed is the Response Of Defendant Tommy M. Mosley To Plaintiff’s Motion
For Disqualification (Doc. 121), which provides, in part:
Discovery
In October 2006 undersigned counsel sent a letter to opposing counsel
requesting, inter alia, production of all bank statements, check registers,
and cancelled checks on any account on which Plaintiff was the signor, for
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the period of time in question in this litigation. In response thereto, Plaintiff
produced Fifth Third Bank statements at her deposition. Further, at her
deposition, Plaintiff testified that her 2003 and 2004 Key Bank statements
were in her possession. Yet, as of the hearing on the discovery issue,
Plaintiff had not produced those bank statements. The fact that Plaintiff
testified that she had possession of those bank statements and that they
had not been produced was clearly made known in the discovery dispute
pleadings preceding the hearing. At the hearing, it was only after that fact
was again brought up by undersigned counsel (page 6 of the transcript)
that 	the 	exact 	documents 	that 	had 	been 	requested 	in 	October 	and
admitted to be in Plaintiff’s possession in early November were actually
produced 	in 	open 	court. 	Plaintiff 	produced 	no 	evidence 	that 	those
documents had been previously provided. Simply put, Plaintiff’s counsel
had a duty to provide the documents that were requested in October and
to 	make 	diligent 	inquiry 	to 	ensure 	that 	the 	discovery 	requests 	was
correctly responded to. The Court succinctly analyzed the situation when it
advised Ms. Soter that it appeared that she did not understand the
discovery issue.
* * * * *
Admonishment
There 	is 	a 	huge 	difference 	between 	a 	court 	administering 	an
admonishment and a court being biased and prejudiced. In the instant
case, the Trial Court (as it always does) reviewed the arguments of
counsel and the proposed exhibits in advance of the hearing. The Trial
Court had before it an October 2006 letter requesting production of bank
statements 	and 	a 	copy 	of 	the 	transcript 	testimony 	of 	the 	Plaintiff’s
deposition, wherein she admitted to being in possession of Key Bank
statements for 2003 and 2004. The Trial Court also knew that those bank
statements had not been produced. That being the case, advising a
lawyer on the wrong end of that fact situation that a discovery hearing is
not going to go well for them is nothing more than common courtesy and a
statement of fact.
Further, it is axiomatic that if a judge asks a lawyer a question in open
court, the lawyer would be well advised to answer the question asked.
“Mrs. Soter, you see how easy it has become. Any reason
why your client doesn’t have the statements and check
registers and bank statements that Mr. Hollencamp has
asked for?”
When opposing counsel didn’t answer the question asked the Court
redirected her attention to the question and rephrased it.
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“Now I’m asking you again, does she have these records
Mrs. Soter?”
It is only after opposing counsel still didn’t answer the question asked that
the Court admonished opposing counsel: “How many times do I have to
repeat 	it?”. 	That 	admonishment 	was 	successful. 	The 	question 	was
answered and the issue was resolved. In short, opposing counsel was
admonished and deserved to be admonished – as well as sanctioned.
This Decision Denying Motion For Disqualification Of The Hon. Thomas F.
Waldron addresses these filings. (Docs. 118, 121)1 .
Issue Presented
The issue presented is whether Judge Thomas F. Waldron (the “Trial Judge”) is
disqualified from determining the issues in this adversary proceeding.
Issue Determined
The court determines that the Trial Judge is not disqualified and shall conduct the
trial of the issues in this adversary proceeding.
Parties’ Arguments
The central arguments presented by the Movant are: (1) “Prejudging” – the
Trial Judge “prejudged the case and advised Mrs. Soter that “[t]his is not going to go
very well for you today” prior to hearing any testimony or seeing any evidence” and (2)
“False Accusations” – the Trial Judge made “false accusations that she had been the
subject of discovery violations every time she had been before him[.]” 	This is followed
by the Movant’s conclusion that the Trial Judge “is unable to give Mrs. Billie J. Sturgill a
fair and impartial trial.” (Doc. 118).
1 The Court recognizes there are other pending filings – Supplemental Memorandum of Defendant
Tommy M. Mosley Regarding Discovery Dispute (Doc.75), Affidavit of Arthur R. Hollencamp (Doc. 76),
Affidavit of Mary K. C. Soter in Opposition to Affidavit Of Arthur R. Hollencamp Regarding Defendant’s
Request For Attorney Fees (Doc. 79), Defendant’s Motion to Dismiss (Doc. 119), Defendant’s Objection
To Certain of Plaintiff’s exhibits (Doc. 120) – which will be addressed prior to the trial date.
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The Defendant argues in opposition that:
The Court evidenced no bias or prejudice. 	Rather, the Court exercised
extreme 	restraint 	under 	the 	circumstances. 	The 	Court’s 	impartiality
cannot 	reasonably 	be 	questioned. 	An 	appropriate 	admonishment 	of
counsel in a tangential hearing does not override the extreme leniency,
lack of bias, and lack of prejudice that has been bestowed upon opposing
counsel to date in these proceedings. 	The Motion for Disqualification
should be overruled. (Doc. 121).
Applicable Law
An extremely thorough decision by Judge Hoffman provides the legal principles
for the determination of these issues. Judge Hoffman noted:
While 28 U.S.C. § 455 imposes a duty on the Court to recuse where any
of the statutory grounds exist, there is a corresponding duty not to do so if
cause for recusal has not been shown. In re Computer Dynamics, Inc.,
253 B.R. 693, 698 (E.D.Va.2000) (“[A] judge is equally obliged not to
recuse himself when there is no necessity, as he is to recuse himself
when there is.”); Armstrong v. Potter (In re Potter), 2002 WL 31802978 n.
1 (10th Cir. BAP Oct. 8, 2002) (“A judge's duty to hear cases is not so
ephemeral that it dissipates at the first sight of any potential bias or
partiality toward one of the litigants.”); In re Womack, 253 B.R. 245, 246
(Bankr.E.D.Ark.2000) (“Although the Court has a duty to recuse where any
of [the § 455] factors exist, there is a concomitant duty not to recuse on
unsupported, irrational or tenuous speculation.”). As Justice (then Judge)
Breyer explained in In re Allied-Signal, Inc., 891 F.2d 967, 970 (1st
Cir.1989), courts must exercise great care in considering motions for
recusal so as to discourage their use for purposes of judge shopping or
delay:
When considering disqualification, the district court is not to use the
standard of mere ... suspicion ... that is because the disqualification
decision must reflect not only the need to secure public confidence
through proceedings that appear impartial, but also the need to
prevent parties from too easily obtaining the disqualification of a
judge, thereby potentially manipulating the system for strategic
reasons, perhaps to obtain a judge more to their liking.
See also In re Nat'l Union Fire Ins. Co., 839 F.2d 1226, 1229 (7th
Cir.1988) (“Judges have an obligation to litigants and their colleagues not
to remove themselves needlessly, because a change of umpire in mid-
contest may require a great deal of work to be redone ... and facilitate
judge-shopping.” 	(citation 	omitted)); 	United 	States 	v. 	Pungitore, 	15
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F.Supp.2d 705, 715 n. 4 (E.D.Pa.1998) (“A liberal recusal policy would
encourage judge shopping.”); Scott v. Pryor ( In re Chandler's Cove Inn,
Ltd.), 74 B.R. 772, 773 (Bankr.E.D.N.Y.1987) (“[R]ecusal motions which
are too liberally granted are tantamount to unilateral ‘judge shopping’ and
may be used for a delaying tactic, for their disposition requires a serious
investment of judicial time and thought.”).
Generally, 	recusal 	on 	grounds 	of 	partiality 	arises 	in 	one 	of 	two
circumstances: when the judge forms opinions of the litigants based on
information 	learned 	outside 	the 	course 	of 	judicial 	proceedings 	(the
“Extrajudicial Source Doctrine”), or when a judge whose information is
limited to that revealed during the course of judicial proceedings forms a
favorable or unfavorable opinion so extreme that fair judgment appears
impossible (the “Pervasive-Bias Exception”). See generally 11 Charles
Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice &
Procedure § 2922 (2d ed.1995). Discussing these concepts in its decision
affirming a district court's denial of a motion for recusal made under § 455,
the Supreme Court, in Liteky v. United States, 510 U.S. 540, 555-56, 114
S.Ct. 1147, 127 L.Ed.2d 474 (1994), explained:
First, judicial rulings alone almost never constitute a valid basis for
a bias or partiality motion. See United States v. Grinnell Corp., 384
U.S. [563], at 583, 86 S.Ct. [1698], at 1710[, 16 L.Ed.2d 778
(1966)]. 	In 	and 	of 	themselves 	(i.e., 	apart 	from 	surrounding
comments or accompanying opinion), they cannot possibly show
reliance upon an extrajudicial source; and can only in the rarest
circumstances evidence the degree of favoritism or antagonism
required (as discussed below) 	when no extrajudicial source is
involved. Almost invariably, they are proper grounds for appeal, not
for recusal. Second, opinions formed by the judge on the basis of
facts introduced or events occurring in the course of the 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.
Thus, judicial remarks made during the course of a trial that are
critical or disapproving of, or even hostile to, counsel, the parties, or
their cases, ordinarily do not support a bias or partiality challenge.
They may do so if they reveal an opinion that derives from an
extrajudicial source; and they will do so if they reveal such a high
degree 	of 	favoritism 	or 	antagonism 	as 	to 	make 	fair 	judgment
impossible. An example of the latter (and perhaps of the former as
well) is the statement that was alleged to have been made by the
District Judge in Berger v. United States, 255 U.S. 22, 41 S.Ct. 230,
65 	L.Ed. 	481 	(1921), 	a 	World 	War 	I 	espionage 	case 	against
German-American 	defendants: 	“One 	must 	have 	a 	very 	judicial
mind, 	indeed, 	not 	[to 	be] 	prejudiced 	against 	the 	German
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Americans” because their “hearts are reeking with disloyalty.” Id., at
28[, 	41 	S.Ct. 	230] 	(internal 	quotation 	marks 	omitted). 	Not
establishing 	bias 	or 	partiality, 	however, 	are 	expressions 	of
impatience, dissatisfaction, annoyance, and even anger, that are
within the bounds of what imperfect men and women, even after
having been confirmed as federal judges, sometimes display. A
judge's ordinary efforts at courtroom administration- even a stern
and 	short-tempered 	judge's 	ordinary 	efforts 	at 	courtroom
administration- remain immune.
See also Barclays/Am. Bus. Credit, Inc. v. Adams ( In re Adams), 31 F.3d
389, 396 (6th Cir.1994) (following Liteky and denying recusal motion
where there was no showing that the bankruptcy judge had displayed
deep-seated antagonism toward the movant or favoritism toward the
opposing party).
The standard for determining whether a judge should be disqualified is an
objective one: whether a reasonable person with knowledge of all facts
would 	conclude 	that 	the 	judge's 	impartiality 	might 	reasonably 	be
questioned. Lopez v. Behles (In re Am. Ready Mix, Inc.), 14 F.3d 1497,
1501 (10th Cir.1994), cert. denied, 513 U.S. 818, 115 S.Ct. 77, 130
L.Ed.2d 31 (1994); Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir.1987);
United States v. Story, 716 F.2d 1088, 1090 (6th Cir.1983).
The proper test ... is whether the charge of lack of impartiality is
grounded on facts that would create a reasonable doubt concerning
the judge's impartiality, not in the mind of the judge himself or even
necessarily in the mind of the litigant filing the motion under 28
U.S.C. § 455, but rather in the mind of the reasonable man.
United States v. Cowden, 545 F.2d 257, 265 (1st Cir.1976), cert. denied,
430 U.S. 909, 97 S.Ct. 1181, 51 L.Ed.2d 585 (1977). As the Sixth Circuit
explained, “[t]he standard is an objective one; hence, the judge need not
recuse himself based on the ‘subjective view of a party’ no matter how
strongly that view is held.” United States v. Sammons, 918 F.2d 592, 599
(6th 	Cir.1990) 	(quoting 	Browning 	v. 	Foltz, 	837 	F.2d 	276, 	279 	(6th
Cir.1988), cert. denied, 488 U.S. 1018, 109 S.Ct. 816, 102 L.Ed.2d 805
(1989)). 	The 	Seventh 	Circuit 	has 	elaborated 	on 	the 	necessity 	and
desirability of this objective recusal test:
An objective standard is essential when the question is how things
appear to the well-informed, thoughtful observer rather than to a
hypersensitive or unduly suspicious person .... Trivial risks are
endemic, and if they were enough to require disqualification we
would have a system of preemptory strikes and judge-shopping,
which itself would imperil the perceived ability of the judicial system
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to decide cases without regard to persons. A thoughtful observer
understands that putting disqualification in the hands of a party,
whose real fear may be that the judge will apply rather than
disregard the law, could introduce a bias into adjudication. Thus the
search is for a risk substantially out of the ordinary.
Hook v. McDade, 89 F.3d 350, 354 (7th Cir.1996) (quoting In re Mason,
916 F.2d 384, 386 (7th Cir.1990)).
* * * * *
There is no allegation that the Court's actions have been influenced by
any 	information 	learned 	outside 	of 	judicial 	proceedings. 	Thus, 	the
Extrajudicial Source Doctrine does not come into play. A litigant relying on
the Pervasive Bias Exception- i.e., alleging bias on the basis of events
occurring in the course of the current proceedings- must show that those
events 	display 	a 	deep-seated 	and 	high 	degree 	of 	antagonism 	or
favoritism. Liteky, 510 U.S. at 555, 114 S.Ct. 1147. As stated by Chief
Judge Waldron of this Court:
If counsel is not satisfied with the court's ruling, a multi-tiered
appellate 	process 	provides 	ample 	opportunity 	for 	counsel 	to
continue 	to 	assert 	his 	position. 	A 	court 	colloquy 	questioning
counsel's legal arguments set forth in motions and memoranda
previously filed in connection with a proceeding, followed by a
decision in which the court does not adopt those same legal
arguments of counsel cannot provide an adequate basis for a
motion for removal.
In re Dougan, No. 3-87-00180, slip op. at 7 (Bankr.S.D.Ohio Jan. 12,
1988). 	Accord 	Sylver, 	214 	B.R. 	at 	422, 	427-28. 	See 	also 	Miami
Employees Fed. Credit Union v. Turner (In re Turner), 69 B.R. 95, 96
(Bankr.S.D.Ohio1987) (Perlman, J.) (holding that statements directed to
counsel during pretrial conference on dischargeability complaint are not
indicative of any bias or prejudice toward a party, and likewise, statements
by court suggesting that defendant file a counterclaim do not reflect bias
or prejudice since defendant had stated that a violation of the stay had
occurred and court has the “duty ... to see that the laws of the United
States Bankruptcy Code are enforced.”).
In re Haas, 292 B.R. 167, 175 – 78 (Bankr. S.D. Ohio 2003).
In 	the 	circumstances 	of 	this 	proceeding, 	there 	is 	no 	allegation 	that 	the
Extrajudicial Source Doctrine applies. 	Accordingly, in order to prevail, the Movant must
satisfy the objective standard that the Trial Judge’s actions at the hearing display the
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required 	“deep-seated 	favoritism 	or 	antagonism 	that 	would 	make 	fair 	judgment
impossible.” See Liteky v. U.S., 510 U.S. 540, 555, 114 S.Ct. 1147, 1157 (1994).
Proceedings Prior To The Hearing
This adversary was commenced by the Movant in December 2005 and, despite
repeated 	attempts 	to 	conclude 	the 	discovery 	process 	and 	determine 	the 	issues
presented, the issues have not yet been determined; however, the trial in this adversary
is set for March 8, 2007.
Although the Movant has alleged that the Trial Judge bears “antagonism toward
her” and had “prejudged the case,” a review of the history of this case, as noted by the
Defendant (Doc. 121), demonstrates the opposite. 	The Trial Court’s substantive and
procedural rulings in this adversary have repeatedly adopted the Movant’s position.
Without detailing every specific ruling, the court previously entered an Order
Denying, Without Prejudice, Pending Motions, Authorizing Amended Complaint And
Fixing Response Time (Doc. 15). That Order (Doc. 15) provided, in part:
On February 2, 2006, the Plaintiff filed a paper titled, Complaint Objecting
To Dischargeability (Doc. 12). 	This paper, although not properly titled, is
clearly an Amended Complaint. 	This paper was not filed in compliance
with the requirements of Federal Rule of Bankruptcy Procedure 7015,
since it fails to contain the written consent of the adverse party and was
not the result of an order following a motion seeking leave of the Court
authorizing such a filing.
The Court, in the specific circumstances of this proceeding, noting that the
filing (Doc. 12) could be properly stricken, also recognizes that a properly
filed motion could be granted, will allow the Amended Complaint (Doc. 12)
to stand as a filing in this case.
As a result, the pending Motion To Dismiss Of Defendant Susan Mosley
(Doc. 5) and the Motion For More Definite Statement (Doc. 6) are not
directed 	to 	this 	recently 	filed 	Amended 	Complaint 	(Doc. 	12); 	and,
accordingly, are DISMISSED without prejudice to filing motions in
connection with the Amended Complaint (Doc. 12). Further, any
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answer 	or 	other 	responsive 	pleadings 	directed 	to 	the 	Amended
Complaint (Doc. 12) shall be filed not later than March 6, 2006.
(emphasis in original).
The 	Court 	recognizes 	that 	this 	ruling, 	although 	the 	Court 	deems 	it
appropriate in these circumstances, is subject to challenge by counsel for
the Defendants and, if an appropriate motion for reconsideration is filed,
the Court could grant a motion to strike the Amended Complaint (Doc. 12)
and allow for the filing of other appropriate documents. 	The Court
cautions the parties that the result of that process may be the same order
that is entered herein.
Further, the court notes specifically that future violations of the
applicable National and Local Bankruptcy Rules by Mary K. Soter will
result in the imposition of sanctions. (emphasis in original).
In a subsequent filing, the Trial Judge, again rejected the position of counsel for
the Defendant, adopted the Movant’s position and entered an Order Denying (1) Motion
To Join Ruth Slone, In Her Capacity As Chapter 7 Trustee [Bankruptcy Rule 7019] And
(2) Denying Motion For Judgment On The Pleadings [Bankruptcy Rule 7012(c)] (Doc.
31).
Further, following an initially established discovery cut-off date of October 19,
2006 	(Doc. 	37), 	the 	Trial 	Judge, 	subsequently, 	extended 	the 	discovery 	date 	to
December 30, 2006 and established a trial date of January 19, 2007 (Doc. 40).
Thereafter, the Trial Judge denied the attorney for the Defendant’s Motion To Dismiss
(Doc. 49) and, again over the objection of the attorney for the Defendant, adopted the
Movant’s position and entered an order vacating the prior trial date and rescheduling the
trial until March 8, 2007 (Doc. 54).
Proceedings At The Hearing – “Prejudging”
As part of the above pretrial conference, the Defendant established the Movant
had failed to comply with the Court’s prior Order concerning filings and had not provided
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discovery to which the Defendant was entitled and, accordingly, the Defendant sought
relief from these failures by the Movant in connection with any further proceedings in
this adversary. 	The above referenced Order (Doc. 54) rescheduling, inter alia, the trial
date, provided, in part:
As a result of counsel for the Plaintiff’s failure to comply with the
prior Court Order (Doc. 40), if the Plaintiff fails to comply with the
above filing requirements, the Court shall bar any testimony of 	any
witness not listed and bar the introduction of any exhibit not listed or
for which a copy has not been timely filed with the Court. (emphasis
in original).
* * * * *
IV. DOCUMENTS TO BE PROVIDED AND SANCTIONS
The Court notes that counsel for the Defendant filed with the Court a
Notice Of Requested Documents (Doc. 53) which lists the documents
counsel for the Plaintiff agreed to provide to counsel for the Defendant at
the depositions previously held in this adversary. Counsel for the Plaintiff
shall, not later than January 29, 2007, file a certification that the listed
documents have been delivered to counsel for the Defendant or, by that
date, 	file 	a 	listing 	identifying 	every 	document 	which 	has 	not 	been
delivered, together with a memorandum setting forth all reasons which
would make an order imposing sanctions unjust, or the court shall enter an
appropriate order, including, but not limited to, an assessment of costs.
(emphasis in original).
Consistent 	with 	the 	provisions 	of 	Federal 	Rules 	of 	Bankruptcy 	Procedure
governing discovery, this court’s Local Rule [LBR 7026-1(a)] provides:
Cooperation 	and 	Consultation. 	Discovery 	proceedings 	shall 	be
promptly commenced. 	All counsel and any party appearing pro se are
required to cooperate and consult with each other in a courteous manner
in all matters related to discovery and shall freely exchange discoverable
information and documents upon informal written request, whether or not
a pretrial conference has been scheduled or held in a proceeding. 	No
objections, motions, applications or requests related to discovery disputes
shall be filed pursuant to the provisions of Rules 7026 through 7037
unless extrajudicial means for the resolution of the discovery dispute have
been exhausted. 	Without other compelling factors, discovery should not
be delayed as a result of a dispute involving the payment or allocation of
the costs of discovery. (emphasis in original).
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The applicable Federal Rules of Bankruptcy Procedure governing discovery and
this court’s Local Rule [LBR 7026-1(a)] require compliance, unless there is a timely filing
alleging a basis which would justify a failure to comply with requested discovery.
Despite the Movant’s agreement to provide the requested discovery and the filing by
counsel for the Defendant specifying the requested discovery (Doc. 53), the Movant
filed a Certification Regarding Documents Delivered Or Not Delivered To Counsel For
Defendant (Doc. 57). Thereafter, Counsel for the Defendant filed a Renewed Motion To
Compel Production Of Documents, Response, And Objection To Certification Of Plaintiff
Regarding Documents (Doc. 58), the Movant filed a Memorandum Of Plaintiff In
Opposition To Defendant’s Renewed Motion To Compel Production Of Documents,
Response, And Objection To Certification Of Plaintiff Regarding Documents (Doc. 61)
and the court entered an Order: Setting Hearing And Requiring Filings (Doc. 60) which
scheduled the Hearing for February 7, 2007.
It is significant to note that in the Defendant’s Renewed Motion To Compel
Production 	Of 	Documents, 	Response, 	And 	Objection 	To 	Certification 	Of 	Plaintiff
Regarding Documents (Doc. 58), the opening sentence of the attached Memorandum,
specifically 	noted 	that 	the 	Movant 	“has 	produced 	no 	documents 	in 	response 	to
Defendant’s request for production of all monthly statements and cancelled checks on
Plaintiff’s Key Bank Account from December 15, 2000 through April 30, 2004.”
As part of the preparation for the Hearing, the court reviewed the documents filed
by the parties in connection with the issues to be determined. 	Since the issues
presented were legal issues capable of determination on the documents filed by the
parties, the court’s pre-hearing review of the documents indicated that the Movant had
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not complied with the required discovery process. 	It should be noted that, at the
Hearing, although counsel presented arguments, neither party introduced evidence
through the testimony of witnesses
Notwithstanding that counsel for the Defendant decided that he would deem his
outstanding discovery request satisfied as a result of the documents turned over to him
by the Movant at the Hearing, it also became evident that the Movant had, at the time of
the Hearing, possession of documents, included in the discovery request by counsel for
the Defendant, which had not been provided to the Defendant and to which the
Defendant was entitled.
As correctly noted by in the Defendant’s response (Doc. 121):
In October 2006 undersigned counsel sent a letter to opposing counsel
requesting, inter alia, production of all bank statements, check registers,
and cancelled checks on any account on which Plaintiff was the signor, for
the period of time in question in this litigation. In response thereto, Plaintiff
produced Fifth Third Bank statements at her deposition. Further, at her
deposition, Plaintiff testified that her 2003 and 2004 Key Bank statements
were in her possession. Yet, as of the hearing on the discovery issue,
Plaintiff had not produced those bank statements. The fact that Plaintiff
testified that she had possession of those bank statements and that they
had not been produced was clearly made known in the discovery dispute
pleadings preceding the hearing. At the hearing, it was only after that fact
was again brought up by undersigned counsel (page 6 of the transcript)
that 	the 	exact 	documents 	that 	had 	been 	requested 	in 	October 	and
admitted to be in Plaintiff’s possession in early November were actually
produced 	in 	open 	court. 	Plaintiff 	produced 	no 	evidence 	that 	those
documents had been previously provided.
Simply put, Plaintiff’s counsel had a duty to provide the documents that
were requested in October and to make diligent inquiry to ensure that the
discovery requests was correctly responded to.
The Defendant’s discovery requests, as sought pursuant to documents filed by
the Defendant prior to the Hearing, were included in the scope of issues to be
considered and determined at the Hearing [See Exhibit List Of Defendant Tommy M.
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Mosley For February 7, 2007 (Doc. 69, Exhibit A – October 26, 2006 Discovery Request
letter, etc.)]. The Movant’s eventual compliance with the Defendant’s discovery request
was consistent with the Trial Judge’s observation that “this [hearing concerning counsel
for the Defendant’s request for discovery] is not going to go very well for you [the
Movant] today.”
The above statement of the Trial Judge was not a matter of “prejudging”; rather,
this initial observation was a matter of appropriately recognizing, based on the parties’
prefiling documents, that counsel for the Movant had not complied with counsel for the
Defendant’s discovery request.
The Movant’s argument concerning “prejudgment” does not provide a basis to
grant the Movant’s motion (Doc. 118).
Proceedings At The Hearing – “False Accusations”
The Movant alleges that the Trial Judge’s statement, “I think it has been a
problem every time you have come before me,” is a “false accusation,” demonstrating
“an aversion, hostility, or disposition of a kind that a fair-minded person could not set
aside when judging the dispute[.]” 	It appears that the Movant’s understanding of the
Trial Judge’s statement, “I think it [the failure of the Movant to comply with a discovery
request] has been a problem every time you have come before me,” is not limited to the
actual words, but includes additional language, included here as underscored text, as
follows: “I think it [the failure of the Movant to comply with a discovery request] has been
a problem every time you have come not just in connection with the pending adversary,
but in connection with every appearance by you in every proceeding in which you have
appeared before me.”
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As previously noted, the Trial Judge’s statement was made at the Hearing and in
the context of the pending adversary. 	Nothing in the words “I think it [the failure of the
Movant to comply with a discovery request] has been a problem every time you have
come before me” indicates the statement extended to any circumstances, other than the
circumstances of the pending adversary.
Despite counsel for the Plaintiff’s mistaken belief that the Trial Judge must have
been referring to every time she had ever appeared before the court in her entire
history, the Trial Judge’s statement only occurred on the specific day of The Hearing in
the context of the parties’ discovery disputes and was limited to the parties’ discovery
disputes in the pending adversary. In the context of the parties’ discovery disputes, the
court’s statement remains correct that “[i]t [the failure of the Movant to comply with the
Defendant’s discovery request] has been a problem every time [the Movant] you have
come before [the court in the pending adversary with regard to discovery issues].”
Additionally, even if the Trial Judge’s statements were to be viewed from the
mistaken perspective of the Movant, they fail to provide a basis to grant the relief
requested by the Movant. As the Supreme Court held:
Not establishing bias or partiality, however, are expressions of
impatience, dissatisfaction, annoyance, and even anger, that are
within the bounds of what imperfect men and women, even after
having 	been 	confirmed 	as 	federal 	judges, 	sometimes 	display.
(emphasis in original).
Liteky, 510 U.S. at 555-56, 114 S.Ct. at 1157.
Although the court regrets that the Movant, or anyone who appears before the
court, has a perception, no matter how erroneous, that this court has some bias or
prejudice with regard to them or the issues involved in their proceeding, the clear intent
of 28 U.S.C. § 455, and the binding case law that has developed under this section, is
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to require the court to determine whether such motions may appropriately be granted.
In the overall context of this adversary, and the specific context of the Hearing,
the Movant has not satisfied the objective standard that the Trial Judge’s actions display
the required “high degree of favoritism or 	antagonism as to make fair judgment
impossible.” See Hass, 292 B.R. at 179, quoting Liteky, 510 U.S. at 555, 114 S.Ct. at
1157.
Conclusion
Accordingly, the Plaintiff’s Motion For Disqualification Of The Hon. Thomas F.
Waldron 	(Doc. 	118) 	is 	DENIED. 	An 	order 	in 	accordance 	with 	this 	decision 	is
simultaneously entered.
c:
Mary K. C. Soter, Esq., 5518 North Main Street, Dayton, Ohio 45415-3455 (Atty. for the
Plaintiff)
Arthur R. Hollencamp, Esq., 2107 First National Plaza, 130 West Second Street,
Dayton, Ohio 45402 (Atty. for the Debtors/Defendant)
John Paul Rieser, Esq., 1520 First National Plaza, 130 West Second Street, Dayton,
Ohio 45402 (Chapter 7 Trustee)
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