Travelers Ins. Co. v. Liljeberg Enterprises, Inc.

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 93-3832
_____________________
TRAVELERS INSURANCE COMPANY,
Plaintiff-Appellee,
VERSUS
LILJEBERG ENTERPRISES, INC.,
Defendant-Appellant.
____________________________________________________
Appeals from the United States District Court
for the Eastern District of Louisiana
(CA-92-58-I)
_____________________________________________________
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_____________________
No. 93-3833
_____________________
TRAVELERS INSURANCE COMPANY,
Plaintiff-Appellee,
VERSUS
ST. JUDE HOSPITAL, OF KENNER, LOUISIANA, INC., ET AL.,
Defendants-Appellants.
____________________________________________________
Appeals from the United States District Court
for the Eastern District of Louisiana
(CA-90-1983-I c/w 90-2601-I)
_____________________________________________________
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_____________________
No. 93-3891
_____________________
TRAVELERS INSURANCE COMPANY,
Plaintiff-Appellee,
VERSUS
ST. JUDE HOSPITAL OF KENNER, LOUISIANA, INC.,
Defendant-Appellant.
____________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(CA-93-173-I)
_____________________________________________________
(November 21, 1994)
Before HIGGINBOTHAM, JONES, and BARKSDALE, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
At issue in these three related actions are the use of belated
and extremely intemperate post-judgment motions, filed pursuant to
Fed. R. Civ. P. 60(b)(6), seeking, primarily because of the trial
judge's club memberships and other social contacts, to disqualify
him under 28 U.S.C. § 455(a) (judge's "impartiality might
reasonably be questioned"), and, therefore, to set aside the
adverse judgments. The district court denied the motions as being
untimely, and, alternatively, without merit. We AFFIRM and impose
sanctions.
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I.
Once again, this court has before it another of the continuing
disputes between the Liljebergs and Travelers Insurance Company.
The background to the three actions before us was developed in our
earlier decisions in Travelers Ins. Co. v. Liljeberg Enters., Inc.,
7 F.3d 1203 (5th Cir. 1993), aff'g in part 799 F. Supp. 641 (E.D.
La. 1992); Travelers Ins. Co. v. St. Jude Hosp. of Kenner, La.,
Inc., 21 F.3d 1107 (5th Cir. 1994) (No. 92-9579; unpublished); and
Travelers Ins. Co. v. St. Jude Hosp. of Kenner, La., Inc., No. 93-
3731, slip op. 581 (5th Cir. Oct. 25, 1994). We develop the time
line only as necessary to clarify and focus the common issue in
these three related appeals.
A.
In June 1990, Travelers filed suit against the St. Jude
Medical Office Building Limited Partnership (Partnership) and other
defendants seeking, inter alia, the seizure and judicial sale of
the St. Jude Medical Office Building (Partnership Litigation).1
1
In addition to the Partnership, other defendants were St. Jude
Hospital of Kenner, Louisiana, Inc. (SJH); Liljeberg Enterprises,
Inc. (LEI); Krown Drugs, Inc. (Krown); John A. Liljeberg, Jr.; and
Robert Liljeberg. SJH, Krown, and LEI are related entities, each
formed, owned and controlled by the Liljebergs. Accordingly,
references in this opinion to the Liljebergs include not only John
and Robert Liljeberg, but also their entities.
Together with the seizure and sale of the building, Travelers
also sought: unpaid rents from tenants Krown and LEI under their
respective leases; joint liability of the Partnership for the
unpaid rents of affiliates Krown and LEI due to the Partnership's
consistent misrepresentations of timely collection of their rents;
compensation for the destruction of improvements; the seizure and
sale of movables surreptitiously removed from the building; and
reimbursement for the cost of installing another storm and sewerage
system in response to the Liljebergs' threats to block the existing
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Following a jury trial, an amended judgment for Travelers was
entered in December 1992; the Liljebergs appealed. On October 1,
1993, while the appeal was pending, the Liljebergs moved under Rule
60(b)(6) to have the judgment vacated,2 claiming that, primarily
because of his social contacts, United States District Judge Henry
A. Mentz, Jr., violated 28 U.S.C. § 455(a) by failing to disqualify
himself from the action although he knew, or should have known,
that his impartiality might reasonably be questioned. The denial
of the motion was appealed (No. 93-3833). As for the earlier
appeal of the underlying judgment, our court affirmed the
Liljebergs' liability on April 20, 1994; the determination of
prejudgment interest was reversed and remanded. Travelers, 21 F.3d
1107 (unpublished).
B.
On August 13, 1992, in a related action, summary judgment was
awarded Travelers to enforce two leases against Liljeberg
Enterprises, Inc. (LEI Litigation). Travelers, 799 F. Supp. 641.
LEI appealed; and, as in the Partnership Litigation, it filed the
same 60(b)(6) motion on October 1, 1993, which the district court
denied. Following that denial, but before LEI filed this appeal
one.
2
Fed. R. Civ. P. 60(b) provides, in pertinent part:
On motion and upon such terms as are just, the
court may relieve a party or a party's legal
representative from a final judgment, order, or
proceeding for the following reasons: ... (6) any
other reason justifying relief from the operation
of the judgment.
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(No. 93-3832), our court affirmed the underlying summary judgment.
Travelers, 7 F.3d 1203.
C.
When Travelers was unsuccessful in its efforts to collect the
Partnership Litigation judgment, it sued the general partner, St.
Jude Hospital of Kenner, Louisiana, Inc. (SJH Litigation). On July
30, 1993, summary judgment was awarded Travelers; and, SJH appealed
the denial of its res judicata claim. Unlike the first two
actions, SJH waited until November 2, 1993, to file essentially the
same 60(b)(6) motion. See notes 4-5, infra. It appealed the
denial (No. 93-3891). We recently affirmed the underlying summary
judgment. Travelers, No. 93-3731, slip op. 581.
II.
At issue for all three appeals from the denials of the Rule
60(b)(6) motions is whether the district judge abused his
discretion in refusing, post-judgment, to recuse himself pursuant
to § 455(a).3 That section provides in relevant part: "Any ...
3
Although all three 60(b)(6) motions were filed while appeals
from the underlying judgments were pending, the district court had
jurisdiction to consider the motions. Generally, when an appeal is
taken, the district court is divested of jurisdiction except to
take action in aid of the appeal until the case is remanded to it
by the appellate court, or to correct clerical errors under Rule
60(a). 7 James W. Moore et al., Moore's Federal Practice, ¶
60.30[2]. Our court recognizes, however,
the power of the district court to consider on the
merits and deny a 60(b) motion filed after a notice
of appeal, because the district court's action is
in furtherance of the appeal. When the district
court is inclined to grant the 60(b) motion,
however, then it is necessary to obtain the leave
of the court of appeals. Without obtaining leave,
the district court is without jurisdiction, and
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judge ... of the United States shall disqualify himself in any
proceeding in which his impartiality might reasonably be
questioned." 28 U.S.C. § 455(a). A party seeking such
disqualification "must show that, if a reasonable man knew of all
the circumstances, he would harbor doubts about the judge's
impartiality." Matter of Billedeaux, 972 F.2d 104, 105 (5th Cir.
1992) (quoting Chitimacha Tribe of La. v. Harry L. Laws Co., 690
F.2d 1157, 1165 (5th Cir. 1982) (citations omitted), cert. denied,
464 U.S. 814 (1983)).
Although § 455 does not speak to vacating a judgment, Rule
60(b)(6), in conjunction with § 455, does provide "a procedure
whereby, in appropriate cases, a party may be relieved of a final
judgment." Liljeberg v. Health Servs. Acquisition Corp., 486 U.S.
847, 863 (1988). But, it goes without saying that a Rule 60 motion
is not a substitute for an appeal from the underlying judgment.
Accordingly, denial of a 60(b)(6) motion is reviewed only for abuse
of discretion.4 E.g., Williams v. Brown & Root, Inc., 828 F.2d
cannot grant the motion.
Willie v. Continental Oil Co., 746 F.2d 1041, 1046 (5th Cir. 1984)
(citations omitted), vacated, 760 F.2d 87 (5th Cir. 1985), rev'd on
other grounds, 784 F.2d 706 (5th Cir. 1986) (en banc); accord
Lairsey v. Advance Abrasives Co., 542 F.2d 928, 932 (5th Cir.
1976).
4
In addition to the 60(b)(6) motions, the Liljebergs filed
motions seeking to amend (expand) the statement of facts in the
first two cases; the disqualification of Judge Mentz from
considering the 60(b)(6) motions; and an evidentiary hearing. As
with a 60(b)(6) motion, the district court is given broad
discretion in ruling on these motions, and will be affirmed absent
an abuse of that discretion. E.g., Matter of Hipp, Inc., 5 F.3d
109, 116 (5th Cir. 1993). See note 17, infra.
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325, 328 (5th Cir. 1987). Therefore, "[i]t is not enough that the
granting of relief might have been permissible, or even warranted
-- denial must have been so unwarranted as to constitute an abuse
of discretion." Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402
(5th Cir. 1981).
The lengthy, unsworn, and extremely intemperate (if not
contemptuous) recitation of "facts" in support of the 60(b)(6)
motions boils down primarily to assailing the judge's social
contacts; essentially, that several attorneys from two law firms
representing Travelers (to include the one representing it in these
actions), as well as a director of its parent company, are members,
with Judge Mentz, of The Boston Club of New Orleans.5 These
5
The club is described by the Liljebergs as "an exclusive
private club", which "has a reputation in the New Orleans area
community as an elitist social clique". Whether the Boston Club
is a "private club" under Chapter 40C of the City Code of New
Orleans is at issue before our court in Louisiana Debating and
Literary Assoc. v. City of New Orleans, No. 94-30180 (5th Cir.
argued Nov. 1, 1994).
Other social ties of Judge Mentz which the Liljebergs assail
include: membership in a "most secretive and exclusive carnival
organization"; membership in Le Debut, a "private social club which
selects and presents debutantes for introduction into New Orleans
elite society"; membership in the Royal Society of St. George,
which the Liljebergs contend "practices discrimination in the
selection of ordinary members on the basis of national origin-an
ordinary member must be of English birth or descent"; inclusion in
The Social Directory of New Orleans, which lists an "aristocracy of
merit" and includes "active and distinguished members of the social
scene and/or members of old line families"; familial relationship
to the director of Travelers' parent company (the brother of the
judge's son-in-law (now, former, see note 12, infra) is married to
the director's daughter); and his wife's and daughter's membership,
together with wives of members of the two law firms, in an
"exclusive private club for women", The Orleans Club, whose purpose
is "``to associate into closer bonds of unity' women whose interests
comprise the social, professional and financial affairs of New
Orleans".
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contacts supposedly create a situation in which a reasonable person
would question the judge's impartiality, mandating disqualification
and vacation of the judgments.6
Each of the two 60(b)(6) motions filed on October 1 included
an unsworn 104 paragraph statement of material facts in support.
One month later, when the Liljebergs sought to disqualify Judge
Mentz from considering those motions and also filed the 60(b)(6)
motion for the third action, their allegations ballooned into over
160 paragraphs. As noted, most of these "facts" fall in the
category of intemperate accusations, inapposite references, and
innuendos. For example, the Liljebergs describe at length the
legal fees that Travelers paid to the two law firms during the
years 1990-1993, and how these fees ranked when compared to the
total legal fees paid by Travelers for each year. As another
example, when the "facts" expanded to 166 paragraphs, the
Liljebergs listed various people, including Judge Mentz, who were
listed in The Social Directory of New Orleans.
The Liljebergs further attack Judge Mentz in the motions,
claiming that while the cases were before his court, Judge Mentz
"sought appointment to" this court, and that two of the partners of
the law firm representing Travelers "had a reputation in the New
Orleans area community as being ... influential Republican Party
patron[s] who had significant contact with party officials
responsible for making recommendations for federal appointments."
The Liljebergs then intimate improper actions on the part of Judge
Mentz and one of those two partners by claiming that, during a
recess in the Partnership Litigation, the lawyer (then the United
States Attorney) "visited privately with [Judge Mentz] in the
court's chambers."
6
Because we are reviewing the denials of Rule 60(b)(6) motions
for abuse of discretion, we do not reach the § 455(a) merits as we
would on a direct appeal from a judgment. This notwithstanding, it
appears that the reasons given for disqualification are totally
without merit; indeed, they are almost laughable. What is not
humorous is the attack on the district court and the great waste of
judicial time and resources, not to mention the cost to Travelers,
caused by the 60(b)(6) motions and these appeals. The allegations
speak volumes about the apparent vendetta engaged in by the
Liljebergs, and their attorney, Kenneth C. Fonte, against Judge
Mentz. This is best exemplified by the recent release of a song,
on compact disc, written and performed by Mr. Fonte, entitled "King
Henry"; it is nothing more than a personal and extremely
unprofessional attack on Judge Mentz. (Shortly before oral
argument in late August 1994, Travelers moved that we take judicial
notice of this song; in opposition, Mr. Fonte admitted that it was
written and recorded in May 1994. The motion was carried with the
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The Liljebergs contend that they did not have any knowledge of
the club membership until July 23, 1993, almost a year after the
first two judgments and one week before the third (SJH
case; obviously, it is GRANTED.)
For example, the song states that Judge Mentz "grants favors
to his friends in the social scene"; is "a slave to aristocracy";
will "lift the blindfold of justice [f]or fraternal fantasy"; and
"believes that the Constitution [m]ust yield to noblesse oblige".
No doubt, some of the lyrics are fairly clever. At best, they are
biting satire. But, they were not written by a folksinger or
balladeer. They were penned by a lawyer, an officer of the very
court being ridiculed, who had been unsuccessful repeatedly in
these actions in that court.
Contending that the song "expressly concerns criticism of
official conduct of an officer of the federal government", Mr.
Fonte claims protection under the First Amendment. Without
addressing his contention, we remind him that "once a lawyer is
admitted to the bar, although he does not surrender his freedom of
expression, he must temper his criticisms in accordance with
professional standards of conduct." United States Dist. Court v.
Sandlin, 12 F.3d 861, 866 (9th Cir. 1993). He should also note
that
[t]he Louisiana Supreme Court recently approved the
Code of Professionalism. Article 7 of that Code
continues to emphasize that an attorney "should not
engage in personal attacks on other counsel or the
court." A lawyer's conduct should be characterized
at all times by personal courtesy and professional
integrity embodied in this Code.
Fox v. LAM, 632 So. 2d 877, 879 (La. App. 2d 1994) (emphasis
added).
That a lawyer, an officer of the court, would stoop to this
sort of conduct reflects a gross lack of understanding of
professional conduct and the role that lawyers should play in
assisting to uphold the dignity of the courts. To engage in
heaping such ridicule on a federal judge undermines the position
that the federal courts must hold in our system of government; the
object harmed is not the judge, but the very system of justice on
which the attorney and his clients depend. It is a sad day indeed
when a lawyer's concept of his role and duty as a lawyer and
officer of the court is so misguided. Mr. Fonte has stepped far,
far beyond the pale.
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Litigation).7 This contention, however, was unsupported by an
affidavit or other evidentiary basis.8 Upon discovery of these
circumstances, the Liljebergs never mentioned their concern to
Judge Mentz or to Travelers. Instead, they sat passively while
Judge Mentz entered judgment in the third case.9 Only after being
7
In denying the motions, Judge Mentz stated that he had
disclosed his membership in the Boston Club during his confirmation
process (he was appointed in 1982), and had listed it since 1984 in
the Almanac of the Federal Judiciary. Although the Liljebergs
characterize this publication as "esoteric" and as one "more likely
than not most lawyers have never heard of ... and fewer still have
bothered to peruse", another court has described it as "a
publication widely circulated to the bench and bar". Standing
Comm. on Discipline of the United States Dist. Court for the Cent.
Dist. of Cal. v. Yagman, 856 F. Supp. 1395, 1397 (C.D. Cal. 1994).
8
Unlike 28 U.S.C. § 144 (requiring an affidavit when seeking
recusal based on bias or prejudice), an affidavit is not required
to seek disqualification under § 455. Nevertheless, we are still
troubled that certain parties may abuse § 455 for a dilatory and
litigious purpose based on little or no substantiated basis. See
Delesdernier v. Porterie, 666 F.2d 116, 121 (5th Cir.) ("Congress
did not enact § 455(a) to allow counsel to make a game of the
federal judiciary's ethical obligations; we should seek to preserve
the integrity of the statute by discouraging bad faith manipulation
of its rules for litigious advantage."), cert. denied, 459 U.S. 839(1982).
On the other hand, in making the 60(b)(6) motions, and
concerning the key issue of timeliness, the Liljebergs were
obviously required, but failed, to support their motions with
affidavits or other sworn proof that they did not know of Judge
Mentz's club membership prior to July 23, 1993. E.g., Merit Ins.
Co. v. Leatherby Ins. Co., 714 F.2d 673, 683 (7th Cir.) (a party is
required, with affidavits, to support a 60(b) motion to vacate an
arbitration award when it claims a lack of prior knowledge of a
former relationship between an adversary and an arbitrator; the
party must negate any inference that it had implicitly consented to
go before the arbitrator knowing all it now knows but saying
nothing), cert. denied, 464 U.S. 1009 (1983).
9
The Liljebergs maintain that upon learning of the club
memberships, their counsel "commenced an investigation of the
social ties among those persons to determine whether Judge Mentz
had violated 28 U.S.C. § 455(a)." In addition, they "commissioned
and secured the performance of a sociological study to objectively
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unsuccessful in that case did they seek recusal in all three. The
district court denied the motions on two alternate grounds:
untimely, and without merit. We address each basis.
A.
The first issue is whether the motions were untimely. Rule
60(b)(6) empowers federal courts with broad authority to relieve a
party from a final judgment. Liljeberg, 486 U.S. at 863; Klapprott
v. United States, 335 U.S. 601, 613 (1949). Moreover, a 60(b)(6)
motion is not subject to the one year limitation imposed upon sub-
parts (1) through (3). Instead, a party seeking 60(b)(6) relief
must file the motion within a "reasonable time", Liljeberg, 486
U.S. at 863, which depends upon the particular facts and
circumstances of the case. First RepublicBank Fort Worth v.
Norglass, Inc., 958 F.2d 117, 119 (5th Cir. 1992); Ashford v.
Steuart, 657 F.2d 1053, 1055 (9th Cir. 1981) ("What constitutes
``reasonable time' depends on the facts of each case, taking into
consideration the interest in finality, the reason for delay, the
practical ability of the litigant to learn earlier of the grounds
relied upon, and prejudice to other parties").
Because the Liljebergs rely upon § 455(a) for invoking Rule
60(b)(6), we consider also § 455(a)'s requirements in determining
whether the motions were timely. See Goldfine v. United States,
326 F.2d 456, 457-58 (1st Cir. 1964) (a litigant who seeks a 60(b)
evaluate public perception of the appearance of impropriety
associated with the exclusive private club membership" of Judge
Mentz and other New Orleans attorneys. Needless to say, without
commenting on the propriety vel non of such a poll, this is not the
legal standard by which a § 455(a) disqualification is judged.
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vacation based on lack of notice must act within the period he
would have had to have originally acted upon receiving actual
notice). Our court has recognized that a timeliness requirement
applies to raising § 455(a) disqualification. Delesdernier, 666
F.2d at 121-23. Furthermore, it is well-settled that -- for
obvious reasons -- one seeking disqualification must do so at the
earliest moment after knowledge of the facts demonstrating the
basis for such disqualification. Id. at 121 n.3; United States v.
Patrick, 542 F.2d 381, 390 (7th Cir. 1976), cert. denied, 430 U.S.
931 (1977); Marcus v. Director, Office of Workers' Compensation
Programs, U.S. Dep't of Labor, 548 F.2d 1044, 1051 n.21 (D.C. Cir.
1976) (citing cases stating the general rule that one must raise
the issue of disqualification of the trier, whether judge,
administrator, or arbitrator, at the earliest practicable moment
after relevant facts become known).
The district court did not abuse its discretion in rejecting
all three motions as untimely. As noted, upon allegedly
discovering on July 23, 1993, the primary basis for their motions,
the Liljebergs failed to mention their concern to the judge or to
Travelers. In fact, they not only waited until Judge Mentz entered
judgment in the third case (SJH Litigation), but delayed even
longer. In the SJH Litigation, after the district court entered
judgment on July 30, the Liljebergs (specifically, SJH) on August
9, 1993, moved for a new trial or to alter the judgment, which they
subsequently supplemented with another motion to vacate judgment.
They alleged, inter alia, that Judge Mentz's law clerk and
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Travelers' counsel made "false statement[s] of material fact to the
court", intentionally misled the court in violation of the Rules of
Professional Conduct, and otherwise committed "ill practices". In
light of the unrestrained accusations and innuendos we have seen in
these actions, these charges simply reinforce the perception of the
reckless attacks in which the Liljebergs and their counsel have
engaged.
With those post-judgment motions, the Liljebergs dragged out
the third case until the end of September. While the motions were
pending, the Liljebergs failed to raise disqualification. Only
after the district court denied the motions at the end of September
did the Liljebergs commence their next salvo -- the 60(b)(6)
motions. They waited until October 1, 1993 (nearly a year after
entry of the judgments in the first two cases), before filing their
motions in the first two cases;10 in the third, they waited yet
another month.11
Obviously, the delay in the third case cannot be countenanced.
As of the alleged first date of knowledge of club membership, the
judgment in that case had not been entered. (As noted, it was
entered one week later.) As discussed, a party feeling there is a
basis for disqualification must make that known to the court at the
earliest possible moment. Moreover, as noted, a § 455(a) recusal
10
The original judgment in the Partnership Litigation was
entered on August 18, 1992, and amended on December 3, 1992; in the
LEI Litigation, judgment was entered on August 18, 1992.
11
The judgment in the SJH Litigation was entered on July 30,
1993. The 60(b)(6) motion was filed on November 2, 1993.
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is self-executing, see note 8, supra; no affidavit (or in this
case, "opinion poll") is necessary to present the claimed basis for
disqualification to the court.
Had the Liljebergs acted promptly, the district judge could
have considered disqualification before entering judgment on the
pending summary judgment motion in the third case. As our court
has observed, "[i]f disqualification may be raised at any time, a
lawyer is then encouraged to delay making a § 455(a) motion as long
as possible if he believes that there is any chance that he will
win at trial. If he loses, he can always claim the judge was
disqualified and get a new trial." Delesdernier, 666 F.2d at 121.
As for the first two cases, it is certainly reasonable to
suspect that the delay in filing the motions in those cases was
also for the purpose of hoping not to impede a favorable decision
in the third. Therefore, the delay in seeking recusal in the third
action colors that for the first two. Had the recusal motions in
all three actions been filed promptly after the alleged first date
of knowledge of club membership, this might have assisted the
district judge in determining recusal in the third case, for which
judgment had not been entered. Accordingly, we will not separate
the timeliness issue for the first two cases from the third. To do
so would simply reward the Liljebergs for waiting on the result in
the third case before seeking recusal in the first two.12
12
While these appeals were pending, the Liljebergs moved, in the
alternative, to remand to the district court so that additional
material could be added to the record (affidavit of recently
divorced former son-in-law of Judge Mentz; the contemporaneous
motion to supplement the record on appeal was denied when filed.)
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B.
The 60(b)(6) motions were denied properly for being untimely.
In the alternative, even assuming arguendo a § 455 violation, the
denial of the motions was not an abuse of discretion.13
Rule 60(b)(6) relief is ... neither categorically
available nor categorically unavailable for all §
455(a) violations. We conclude that in determining
whether a judgment should be vacated for a
violation of § 455(a), it is appropriate to
consider the risk of injustice to the parties in
the particular case, the risk that the denial of
relief will produce injustice in other cases, and
the risk of undermining the public's confidence in
the judicial process.
Obviously, in light of our holding that the 60(b)(6) motions were
untimely, the motion to remand is DENIED.
13
We emphasize that, for purposes of this section, in order to
determine whether there was an abuse of discretion in denying the
60(b)(6) motions, a § 455 violation is only assumed. It should be
noted, however, that the Liljebergs do not cite, nor can we find,
any case addressing disqualification because of membership in a
private, social club (as discussed, this is the classification
given the club by the Liljebergs), to include when members of a law
firm representing one of the parties also hold such membership. In
addition, we are reminded that
[i]n today's legal culture friendships among judges
and lawyers are common. They are more than common;
they are desirable. A judge need not cut himself
off from the rest of the legal community. Social
as well as official communications among judges and
lawyers may improve the quality of legal decisions.
Social interactions also make service on the bench,
quite isolated as a rule, more tolerable to judges.
Many well-qualified people would hesitate to become
judges if they knew that wearing the robe meant
either discharging one's friends or risking
disqualification in substantial numbers of cases.
Many courts therefore have held that a judge need
not disqualify himself just because a friend --
even a close friend -- appears as a lawyer.
United States v. Murphy, 768 F.2d 1518, 1537 (7th Cir. 1985), cert.
denied, 475 U.S. 1012 (1986).
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Liljeberg, 486 U.S. at 864; accord In re Continental Airlines
Corp., 901 F.2d 1259, 1263 (5th Cir. 1990) ("the ``harmless error'
rule applies to a breach of a judge's duty to stand recused under
§ 455(a)"), cert. denied, ___ U.S. ___, 113 S. Ct. 87 (1992).
First, in all three cases, the denial of the 60(b)(6) motions
threaten the Liljebergs with a minimal risk of prejudice. In the
Partnership Litigation, a jury, not the district judge, considered
the facts and evaluated the credibility of the witnesses. It
determined the Liljebergs' liability, which we affirmed, Travelers,
21 F.3d 1107 (unpublished). The Liljebergs fail to demonstrate,
nor do we find, any injustice which would warrant vacating the
jury's verdict. In the LEI and SJH Litigations, the sole issue was
one of law.14 The Liljebergs sought review of those judgments; in
both instances, we affirmed through de novo review. Travelers, 7
F.3d 1203 (affirming the summary judgment in the LEI Litigation);
Travelers, No. 93-3731, slip op. 581 (affirming the summary
judgment in the SJH Litigation). Again, the Liljebergs suffered no
injustice. Continental Airlines, 901 F.2d at 1263 ("The risk of
injustice to the parties in allowing a summary judgment ruling to
stand is usually slight").
On the other hand, Travelers faces a great risk of injustice
should the judgments be vacated. During its dealings with the
Liljebergs, Travelers has encountered what another panel of this
14
At issue in the LEI Litigation was whether LEI and Krown were
obligated to enter into leases with Travelers; in the SJH
Litigation, whether res judicata prevented Travelers from seeking
payment from SJH on the judgment against its partnership.
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court described as the most "egregious and unconscionable course of
bad faith contractual dealings as the members of this panel can
recall having encountered." Travelers, 21 F.3d 1107 (unpublished),
No. 92-9579, slip op. at 2. Having obtained judgments against the
Liljebergs, it would be a travesty of justice -- to say the least
-- to require Travelers to start over. Besides, as noted, absent
a showing of a material effect on the jury verdict in the
Partnership Litigation, the results would be the same, especially
in light of our de novo affirmance of the LEI and SJH Litigations.
Second, the denial of relief does not produce injustice in
other cases. In fact, the Liljebergs fail to identify any.
And third, we find no risk that the public's confidence in the
judicial process will be undermined. Partiality for or against an
attorney, who is not a party, is not enough to require
disqualification unless it can be shown that such a controversy
would demonstrate bias for or against the party itself. See
Henderson v. Department of Public Safety and Corrections, 901 F.2d
1288 (5th Cir. 1990);15 Davis v. Board of School Comm'rs of Mobile
County, 517 F.2d 1044, 1051-52 (5th Cir. 1975), cert. denied, 425
15
Henderson provides a close analogy to the Liljebergs' § 455(a)
contention. A party alleged that the trial judge was required to
recuse himself because, inter alia, "the judge presiding over this
case ... has known the opposing counsel since he was a kid and that
the judge presiding over this case was friends of opposing counsel
and opposing counsel's father ...." Henderson, 901 F.2d at 1295.
We recognized that these circumstances did not require
disqualification under § 455 and that "even the most superficial
research would have put [counsel] on notice that the factual
circumstances he alleged were not grounds for recusal .... The
trial judge was well within his discretion in finding that the
motion for recusal was not well founded, either in fact or in law."
Id. at 1296.
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U.S. 944 (1976).16 See also Delesdernier, 666 F.2d at 121 ("... it
might legitimately be asked whether the spectacle of an attorney
dragging his opponent through a long and costly proceeding, only to
conclude by moving for disqualification of the judge, is not
equally detrimental to public impressions of the judicial
system").17
C.
Contending that these appeals are frivolous, Travelers seeks
sanctions against the Liljebergs.18 A frivolous appeal is one which
16
See also, e.g., Chitimacha Tribe of La., 690 F.2d 1157 (judge
not required to recuse himself where some defendants were related
to members of the judge's former law firm); Parrish v. Board of
Comm'rs of Ala. State Bar, 524 F.2d 98 (5th Cir. 1975) (en banc)
(fact that judge had acquaintanceship or friendship with some
defendants, witnesses, and defense counsel did not require
recusal), cert. denied, 425 U.S. 944 (1976); Warner v. Global
Natural Resources PLC, 545 F. Supp. 1298 (S.D. Ohio 1982) (judge
not required to recuse himself due to acquaintanceship between
plaintiff and judge, and fact that plaintiff had supported judge's
nomination to the bench).
17
The denials of the Liljeberg's other motions, which are raised
as issues here, see note 4, supra, do not constitute an abuse of
discretion.
18
The Liljebergs challenge the district court's award of costs,
expenses and attorneys' fees. The district court imposed these
sanctions under 28 U.S.C. § 1927, which, pursuant to its plain
terms, applies only to attorneys, not the parties in the
litigation. Browning v. Kramer, 931 F.2d 340, 344 (5th Cir. 1991).
Thus, the sanctions were not imposed against the Liljebergs.
Additionally, the district court's order only imposed sanctions; it
did not quantify the amount. Therefore, even if the Liljebergs
were liable, this court would lack jurisdiction because the award
of attorneys' fees, without an amount certain, is not a final
order. Southern Travel Club, Inc. v. Carnival Air Lines, Inc., 986
F.2d 125, 131 (5th Cir. 1993) ("an order awarding attorney's fees
or costs is not reviewable on appeal until the award is reduced to
a sum certain"). While these appeals were pending, the district
court, in the Partnership Litigation, quantified § 1927 sanctions
against the Liljebergs' attorney. This quantification is the
subject of Travelers Ins. Co. v. St. Jude Hosp. of Kenner, La.,
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"involves legal points not arguable on their merits." Olympia Co.
v. Celotex Corp., 771 F.2d 888, 893 (5th Cir. 1985) (quoting
Hagerty v. Succession of Clement, 749 F.2d 217, 221-22 (5th Cir.
1984), cert. denied, 474 U.S. 968 (1985)), cert. denied, 493 U.S.
818 (1989). The instant appeals were simply another dilatory and
harassing tactic, with little concern for the resolution of the
conflict. Sanctions are most appropriate; in fact, compelled.
Ratcliff v. Texas, 714 F.2d 24, 25 (5th Cir. 1983) (sanctions
warranted when prosecution of appeal was for the purpose of
harassment or out of sheer obstinacy). Accordingly, we impose
sanctions pursuant to Fed. R. App. P. 38 against John A. Liljeberg,
Jr., and Robert Liljeberg in the amount of double costs and damages
of $1,000; and, pursuant to 28 U.S.C. § 1927, against their
counsel, Kenneth C. Fonte, in the amount of $2,000.19
Inc., No. 94-30272 (5th Cir. Nov. 21, 1994), which we also decide
today.
19
According to its plain terms, sanctions imposed under 28
U.S.C. § 1927 can only be for "excess costs, expenses, and
attorneys' fees reasonably incurred because of ... [unreasonable
and vexatious] conduct." Pursuant to § 1927, because these appeals
"multip[ly] the proceedings in [these] case[s] unreasonably and
vexatiously", all of the expenses incurred by Travelers for these
appeals, to include attorneys' fees, are "excess". Based upon our
familiarity with these appeals, the § 1927 papers filed in district
court, the brief filed for Travelers, and the fact that it
participated in oral argument, we are quite confident that its
reasonable attorneys' fees exceeded $3,000, the total of the Rule
38 damages and § 1927 sanctions. For a more complete discussion of
§ 1927 sanctions, see the above referenced, related opinion
rendered today, in which we affirmed the district court's
imposition of such sanctions against Kenneth C. Fonte in one of the
three cases from which these appeals were taken.
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III.
Accordingly, for the foregoing reasons, we AFFIRM the denial
of the Rule 60(b)(6) motions, and impose sanctions.
AFFIRMED; SANCTIONS IMPOSED
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