Kulak v. Itshak On ( 2024 )

COURT OF CHANCERY
OF THE
STATE OF DELAWARE
KATHALEEN ST. JUDE MCCORMICK LEONARD L. WILLIAMS JUSTICE CENTER
CHANCELLOR 500 N. KING STREET, SUITE 11400
WILMINGTON, DELAWARE 19801-3734
August 12, 2024
Itshak On J. Clayton Athey, Esq.
Keren-Or On Seth T. Ford, Esq.
24 Haavoda St. Prickett, Jones & Elliott, P.A.
Tel-Aviv, Israel 6382132 1310 N. King Street
Wilmington, DE 19801
Re: Kulak v. Itshak On, et al.
C.A. No. 2023-0011-KSJM
Dear Counsel and Parties:
This letter resolves the defendants’ motion to recuse.1 The defendants argue
that I should recuse myself from this action because I partially ruled in favor of the
plaintiff on the parties’ earlier motions. The defendants say that this “demonstrated
a discernible bias against” them.2
The impartiality of the presiding judge “is a fundamental principle of the
administration of justice.”3 The Delaware Supreme Court has held that “[a]s a matter
of due process, a litigant is entitled to neutrality on the part of the presiding judge
1 C.A. No. 2023-0011-KSJM, Docket (“Dkt.”) 105 (“Mot. to Recuse”).
2 Id. at 16.
The defendants assert their arguments under 28 U.S.C. § 445, which does
not apply to Delaware state courts. In re AMC Ent. Hldgs., Inc. S’holder Litig., 2023
WL 6012794, at *1 n.8 (Del. Ch. Sept. 15, 2023), aff’d, 2024 WL 2305792 (Del. May
22, 2024). Instead, I rely on Delaware’s relevant standards, which is Delaware
Judges’ Code of Judicial Conduct Rule 2.11.
3 Los v. Los, 595 A.2d 381, 383 (Del. 1991).
C.A. No. 2023-0011-KSJM
August 12, 2024
Page 2 of 3
but the standards governing disqualification also require the appearance of
impartiality.”4
Determining whether the presiding judge has a personal bias or prejudice
requires that the court engage in a two-part analysis.5 First, “[s]he must, as a matter
of subjective belief, be satisfied that [s]he can proceed to hear the cause free of bias
or prejudice concerning that party.”6 “Second, even if the judge believes that [s]he
has no bias, situations may arise where, actual bias aside, there is the appearance of
bias sufficient to cause doubt as to the judge’s impartiality.”7 Delaware’s approach to
recusal “reflects an obvious tenet: that there is a duty incumbent on judges not to
unreasonably burden fellow judges by recusing in response to a weak argument for
disqualification.”8
Both prongs are met here. I am satisfied that I can hear this action free of bias
and prejudice. And there have been no circumstances that have created an
appearance of bias sufficient to cast doubt as to my impartiality.9
4 Id. at 383 (citing Ungar v. Sarafite, 376 U.S. 575, 588 (1964)).
5 Id. at 384–85.
6 Id.7 Id. at 385 (citation omitted).
8State v. Desmond, 2011 WL 91984, at *12 (Del. Super. Jan. 5, 2011) (internal
quotation marks and citation omitted), aff’d, 29 A.3d 245 (Del. 2011) (TABLE).
9 The defendants believe that “only a judge with a public sector background can
maintain the requisite impartiality to adjudicate this matter fairly.” Def’s Mot. to
Recuse at 15–16. I disagree. But I also note that I began my legal career as a staff
attorney with the Community Legal Aid Society, Inc.
C.A. No. 2023-0011-KSJM
August 12, 2024
Page 3 of 3
Instead of identifying instances of personal bias or prejudice, the defendants
merely raise several objections to my prior rulings.10 Substantive disagreements with
prior rulings are not grounds for recusal.11
Accordingly, the motion is denied.
The plaintiff asks that I shift the fees he incurred in responding to this motion
because, to the plaintiff, the motion is “frivolous.”12 Fee shifting is not warranted
here. The defendants’ arguments were not meritorious, but beyond pointing to my
warning in the May 28, 2024 Letter Decision,13 the plaintiff has not shown that the
defendants’ actions in connection with this motion meet the heavy burden necessary
to shift fees for improper litigation conduct.
IT IS SO ORDERED.
Sincerely,
/s/ Kathaleen St. Jude McCormick
Chancellor
cc: All counsel of record (by File & ServeXpress)
10 Id. at 7–15.
11 In re AMC, 2023 WL 6012794, at *2 (“He contends that . . . I ‘abuse[d]’ the Full
Faith and Credit Clause of the United States Constitution by not requiring the
settlement to include an opt-out right. Holland’s points may be grounds for appeal,
but they are not grounds for recusal.” (citation omitted)).
12 Dkt. 106 ¶ 12.
13 Kulak v. On, 2024 WL 2735436, at *4 (Del. Ch. May 28, 2024), dismissing appeal,
2024 WL 3242126 (Del. July 1, 2024).