FOR EDUCATIONAL USE ONLY Page 1 418 F.Supp. 1, 15 Fair Empl.Prac.Cas. (BNA) 1776, 10 Empl. Prac. Dec. P 10,365 (Cite as: 418 F.Supp. 1) be false. 28 U.S.C.A. § 144. United States District Court, S. D. New York. [2] Judges 227 51(4) Diane Serafin BLANK, Individually, and on behalf of all other persons similarly situated, Plaintiff, 227 Judges v. 227IV Disqualification to Act SULLIVAN & CROMWELL, Defendant. 227k51 Objections to Judge, and Proceedings No. 75 Civ. 189. Thereon 227k51(4) k. Determination of Objec- Aug. 4, 1975. tions. Most Cited Cases If facts stated in affidavit pertaining to bias of judge Civil rights action was brought on claim of sexual are insufficient as matter of law, judge shall not be discrimination in the employment of lawyers by de- disqualified, for there is an equal duty on part of fendant law firm. Defendant filed application for judge not to recuse himself when there is no occa- judge to disqualify herself on grounds of bias. The sion to do so as there is for him to do so when there District Court, Motley, J., held that court's order is. 28 U.S.C.A. § 144. that action be maintained as a class action, with leave to reconsider, made at pretrial hearing at [3] Judges 227 49(1) which both sides were present was fully consistent with requirements of due process and purpose of 227 Judges rules and could not afford basis for disqualification; 227IV Disqualification to Act and that assertion, without more, that a judge who 227k49 Bias and Prejudice engaged in civil rights litigation and who happens 227k49(1) k. In General. Most Cited to be of the same sex as a plaintiff in a suit alleging Cases sex discrimination on the part of a law firm, is, In order to remove a judge, the bias shown must be therefore, so biased that he or she could not hear a personal prejudice, from an extrajudicial source the case, comes nowhere near the standards re- and resulting in an opinion on the merits not war- quired for recusal. ranted by the facts or issues presented in case. 28 U.S.C.A. § 144. Defendant's motion for disqualification denied. [4] Judges 227 49(1) West Headnotes 227 Judges [1] Judges 227 51(4) 227IV Disqualification to Act 227k49 Bias and Prejudice 227 Judges 227k49(1) k. In General. Most Cited 227IV Disqualification to Act Cases 227k51 Objections to Judge, and Proceedings Court's order that action be maintained as a class Thereon action, with leave to reconsider, made at a pretrial 227k51(4) k. Determination of Objec- hearing at which both sides were present was fully tions. Most Cited Cases consistent with requirements of due process and In determining motion to disqualify judge as biased purpose of rules and could not afford basis for dis- under statute, facts stated in affidavit as basis for qualification of judge for bias. Fed.Rules Civ.Proc. belief that prejudice exists must be accepted as true rule 23(c), 28 U.S.C.A.; U.S.Dist.Ct.Rules S. & by judge, even if he or she knows the statements to E.D.N.Y., Civil Rule 11A. © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. FOR EDUCATIONAL USE ONLY Page 2 418 F.Supp. 1, 15 Fair Empl.Prac.Cas. (BNA) 1776, 10 Empl. Prac. Dec. P 10,365 (Cite as: 418 F.Supp. 1) [5] Judges 227 49(1) 227 Judges 227IV Disqualification to Act 227 Judges 227k49 Bias and Prejudice 227IV Disqualification to Act 227k49(1) k. In General. Most Cited 227k49 Bias and Prejudice Cases 227k49(1) k. In General. Most Cited Fact that for much of her legal career judge worked Cases on behalf of blacks who suffered race discrimina- Court's rulings refusing to allow separate hearing tion and that judge was woman who, before being on question of whether there existed a continuing elevated to bench, was a woman lawyer, could not violation on part of defendant in civil rights case, indicate or even suggest personal bias or prejudice, thereby conferring jurisdiction on an otherwise in civil rights case, as required by statute for dis- time-barred claim, and refusing to allow questions qualification. 28 U.S.C.A. § 144; Fed.Rules related to defendant's defense of unclean hands, Civ.Proc. rule 26(b), 28 U.S.C.A. based on plaintiff's motive for bringing suit, to be within scope of pretrial discovery, were well groun- [9] Judges 227 51(3) ded in law and thus could not be reasonably said to be result of prejudice of judge. 28 U.S.C.A. § 144. 227 Judges 227IV Disqualification to Act [6] Civil Rights 78 1530 227k51 Objections to Judge, and Proceedings Thereon 78 Civil Rights 227k51(3) k. Sufficiency of Objection or 78IV Remedies Under Federal Employment Dis- Affidavit. Most Cited Cases crimination Statutes Assertion, without more, that a judge who engaged 78k1530 k. Time for Proceedings; Limita- in civil rights litigation and who happens to be of tions. Most Cited Cases the same sex as a plaintiff in a suit alleging sex dis- (Formerly 78k373, 78k40) crimination on the part of a law firm, is, therefore, Plaintiff's civil rights claim, whether or not deemed so biased that he or she could not hear the case, a class action, was itself timely because it alleged a comes nowhere near the standards required for re- continuing violation on part of defendant. Civil cusal. 28 U.S.C.A. § 144; Fed.Rules Civ.Proc. rule Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 26(b), 28 U.S.C.A. 2000e et seq. *2 Harriet S. Rabb, Howard Rubin, Employment Rights Project, New York City, for plaintiff. [7] Civil Rights 78 1511 Ephraim London, London, Buttenweiser & Chalif, 78 Civil Rights New York City, for defendant. 78IV Remedies Under Federal Employment Dis- crimination Statutes 78k1511 k. Civil Actions in General. Most Memorandum Opinion and Order Cited Cases (Formerly 78k361, 78k37) MOTLEY, District Judge. Plaintiff's motive in bringing civil rights employ- ment discrimination case was irrelevant. Civil This is an action brought under Title VII of the Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § Civil Rights Act of 1964 (42 U.S.C. s 2000e et 2000e et seq. seq.) Plaintiff, who applied for a position as an at- torney with defendant firm and was rejected, claims [8] Judges 227 49(1) that defendant discriminates in the employment of © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. FOR EDUCATIONAL USE ONLY Page 3 418 F.Supp. 1, 15 Fair Empl.Prac.Cas. (BNA) 1776, 10 Empl. Prac. Dec. P 10,365 (Cite as: 418 F.Supp. 1) lawyers on the basis of sex. The instant action has Grinnell, 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d been certified as a class action by this court. (See 778 (1966). Defendant's affidavits clearly fail to Memorandum Opinion and Order, July 14, 1975.) show the extrajudicial, personal bias, or even the inference of such bias, required for disqualification Defendant has filed an application and affidavits by s 144. pursuant to 28 U.S.C. s 144 and 28 U.S.C. s 455 re- questing this Judge to disqualify herself on the Defendant asserts that my personal bias was shown grounds of personal and extrajudicial bias against by the court's order that the action be maintained as defendant and in favor of plaintiff and her cause. a class action at a pre-trial hearing “without having (Affidavit of Arthur Dean at 4). The primary evid- afforded the defendant an opportunity to submit op- ence of this purported bias is the court's ruling that position, and without giving defendant a meaning- this action be maintained as a class and “more im- ful hearing.” (Aff. of Dean at 2; Cf. Aff. of London portantly the manner in which (this and other) rul- at 2). Defendant was invited by the court to respond ings have been issued.” (Affidavit of Arthur Dean to plaintiff's class action motion at the June 2 hear- at 3). These affidavits are, as a matter of law, ing and again in the court's memorandum opinion clearly insufficient to justify my disqualification. granting class status. (See Tr. of June *3 2, 1975 Defendant's motion for disqualification is, there- hearing at 7, 8; Memorandum Opinion and Order of fore, denied. July 14, 1975). [1] It is well settled that in determining a motion to In the opinion of July 14, the court granted disqualify under28 U.S.C. s 144, the facts stated in plaintiff's motion for class certification “with leave the affidavit as the basis for the belief that prejudice to defendant to file an opposition at which time, if exists must be accepted as true by the judge, even if the opposing papers warrant, the court will recon- he or she knows the statements to be false. Berger sider the class action determination.” v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 (Memorandum Opinion of July 14, 1975 at 3). The L.Ed. 481 (1931); Hodgson v. Liquor Salesmen's court concluded its opinion by reiterating that Union Local No. 2 of State of New York, 444 F.2d “(t)he court continues to be willing to review de- 1344 (2d Cir. 1971); Rosen v. Sugarman, 357 F.2d fendant's objections, if any, on this issue.