Smith v. All persons claiming a present or future Interest

DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN
IDA SMITH,
Plaintiff,
v.
ALL PERSONS CLAIMING A PRESENT OR
FUTURE INTEREST IN ESTATE 13,
FRIIS, BAB FRIIS NO. 1, ESTATE 15,
CONCORDIA A., CORAL BAY QUARTER,
ST. JOHN, UNITED STATES VIRGIN
ISLANDS EXCEPT THE UNITED STATES
OF AMERICA, NATIONAL PARK SERVICE,
Defendants.
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) 	Civil No. 2011-41
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APPEARANCES:
Ida Smith
New York, NY
Pro se plaintiff,
Matthew J. Duensing, Esq.
Stryker, Duensing, Casner & Dollison
St. Thomas, U.S.V.I.
For all persons claiming a present or future interest and
Colette Diede,
Maria Tankenson Hodge, Esq.
Hodge & Francois
St. Thomas, U.S.V.I.
For Paul Hoffman; Jane Hoffman Walker; and David A. Bornn,
Trustee of the GAF Trust,
Rafael F. Muilenburg, Esq.
Morrisette & Muilenburg
St. John, U.S.V.I.
For William E. Smith; Eloise V. Smith; Deborah Pillorge;
Claudette C. Hartshorn; Scott L. Hartshorn; Linda V. Smith-
Francis; and George Pillorge,
Gloria McGowan
Pro se,
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Order
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Wayne Chesterfield
Pro se,
Monique Francois
Pro se,
Pedrito Francois
Pro se,
Joseph Palminteri
Pro se,
W. Mark Hillsman, Esq.
Law Offices of Norman P. Jones, P.C.
St. Thomas, U.S.V.I.
For Carrie Glenn; Lori Jane Snack; William B. Poppelton;
Lorraine A. Poppelton; Maria K. Sturaitis; Charles M.
Purdue; Monica Purdue; Salt Pond Vista, LLC; Heinz G.
Fisher; Linda G. Burdet, Trustee of the Heinz G. Fisher;
Safia B. Durante; Donald Durante,
Marc Kave
Pro se,
Emily J. Bratton
Pro se,
Rick Hathaway
Pro se,
Rene A. Servant
Pro se,
Marie Therese Servant
Pro se,
Brian K. Walden
Pro se,
John H. Benham, III, Esq.
Watts, Benham & Sprehn, P.C.
St. Thomas, U.S.V.I.
For Stanley Selengut,
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Order
Page 3
Mark D. Hodge, Esq.
Hodge & Francois
St. Thomas, U.S.V.I.
For Kevin M. Walsh and Treasure View LLC,
Scott E. Wilmoski
Pro se,
Jozef Nemeth
Pro se,
Nancy Nemeth
Pro se defendant.
Fred S. Patterson
Pro se,
Margaret D. Patterson
Pro se defendant.
John R. Perqulizzi
Pro se,
Terryhill Enterprises, II
Pro se,
Missouri LLC
Pro se,
Craig E. Mitchell
Pro se,
Michael E. Fitzsimmons, Esq.
Stryker, Duensing, Casner & Dollison
St. Thomas, U.S.V.I.
For Alan Martin Kaufman,
Ann McCrave
Pro se,
Jeffrey J. McCrave
Pro se,
William R. Kincer
Pro se,
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Order
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Susan B. Kincer
Pro se,
Susan Greer Littlefield
Pro se,
Kurt Shore
Pro se,
Suzanne L. Shore
Pro se,
Dorothy Janosko (also known as “Dorothy K. Janoko”)
Pro se.
ORDER
GÓMEZ, J.
Before the Court is are Ida Smith’s several motion to
disqualify Judge Curtis V. Gómez.
Plaintiff Ida Smith (“Smith”) initiated this action on
March 24, 2011. Subsequently, Smith moved to disqualify the
undersigned, alleging bias and asserting that the undersigned’s
impartiality might reasonably be questioned.
Smith makes several allegations in support of her motion.
Generally, Smith complains that the Court failed to apply
various laws, failed to take certain actions such as holding a
hearing or terminating defendants, denied her motions, and
referred to Smith as a “New York resident” rather than as an
“inheritable heir at law.” Smith appears to suggest that the
reason these actions occurred is because the undersigned harbors
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
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“feelings that the case is probably frivolous.” Urbano v.
Calissi, 353 F. 2d 196, 197 (3d Cir. 1965).
Section 455 of Title 28 of the United States Code
(“Section 455”) outlines the circumstances that
require disqualification of a judge. Section 455, in
pertinent part, provides that:
(a) 	Any 	justice, 	judge, 	or 	magistrate 	judge 	of 	the
United 	States 	shall 	disqualify 	himself 	in 	any
proceeding 	in 	which 	his 	impartiality 	might
reasonably be questioned.
(b) 	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;
(2) 	Where 	in 	private 	practice 	he 	served 	as
lawyer 	in 	the 	matter 	in 	controversy, 	or 	a
lawyer 	with 	whom 	he 	previously 	practiced 	law
served 	during 	such 	association 	as 	a 	lawyer
concerning 	the 	matter, 	or 	the 	judge 	or 	such
lawyer 	has 	been 	a 	material 	witness
concerning it;
(3) 	Where 	he 	has 	served 	in 	governmental
employment 	and 	in 	such 	capacity 	participated
as 	counsel, 	adviser 	or 	material 	witness
concerning 	the 	proceeding 	or 	expressed 	an
opinion 	concerning 	the 	merits 	of 	the
particular case in controversy . . . .
28 U.S.C. § 455 (“Section 455”).
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
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The Supreme Court has stated that the purpose of Section
455 is “to promote public confidence in the integrity of the
judicial process.” Liljeberg v. Health Servs. Acquisition Corp.,
486 U.S. 847, 860 (1988). “A party seeking recusal need not show
actual bias on the part of the court, only the possibility of
bias.... Under § 455(a), if a reasonable man, were he to know
all the circumstances, would harbor doubts about the judge's
impartiality under the applicable standard, then the judge must
recuse.” In re Prudential Ins. Co., 148 F.3d 283, 343 (3d Cir.
1998) (internal quotations omitted); see also Massachusetts
School of Law at Andover, Inc. v. American Bar Ass'n, 107 F.3d
1026, 1042 (3d Cir. 1997) (“The standard for recusal is whether
an objective observer reasonably might question the judge's
impartiality.”)
“[T]he responsibility for deciding a Section 455 motion to
recuse lies with the judge to whom the motion is directed.” In
re Kensington Intern. Ltd., 353 F.3d 211, 223 n.12 (3d Cir.
2003) (citing Bernard v. Coyne, 31 F.3d 842, 843 (9th Cir.
1994). The Court is not required to take the movant’s argument
at face value. See United States v. Martorano, 866 F.2d 62, 68
(3d Cir. 1989) (“Motions to recuse under 28 U.S.C. § 455(a) must
rest on the kind of objective facts that a reasonable person
would use to evaluate whether an appearance of impropriety had
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Order
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been created, not on ‘possibilities' and unsubstantiated
allegations.”). Rather, the Court must determine for itself
whether there exists an adequate basis for recusal. See
generally Nichols v. Alley, 71 F.3d 347, 351 (10th Cir.1995)
(explaining that “a judge has as strong a duty to sit when there
is no legitimate reason to recuse as he does to recuse when the
law and facts require.”).
Smith 	makes 	conclusory 	allegations 	that 	take 	issue
with 	the 	Court’s 	ruling, 	expresses 	displeasure 	with 	the
Court’s 	scheduling, 	and 	takes 	umbrage 	with 	certain
designations 	used 	by 	the 	Court. 	Those 	allegations 	are
insufficient for several reasons.
First,
judicial 	rulings 	alone 	almost 	never 	constitute 	a
valid 	basis 	for 	a 	bias 	or 	partiality 	motion. 	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 	. 	. 	. 	when 	no 	extrajudicial 	source 	is
involved. 	Almost 	invariably, 	they 	are 	proper
grounds for appeal, not for recusal.
Liteky v. United States, 510 U.S. 540, 555 (1994) (assessing a
claim of bias pursuant to Section 455). Here, Smith alleges no
extrajudicial source of bias, and the Court has found none on
the record. Absent any other information, Smith’s allegations of
bias based on the Court’s rulings are fatally deficient.
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Order
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Second, Smith’s displeasure with the Court’s scheduling and
with the Court’s reference to her as a New York resident, is
similarly unavailing. The Court finds that those acts would not
cause a reasonable person to “harbor doubts about the judge’s
impartiality.” In re Prudential Ins. Co., 148 F.3d 283, 343 (3d
Cir. 1998).
The premises considered, it is hereby
ORDERED that Smith’s First, Second, Third, and Fourth
Motions to Disqualify is DENIED.
S\
CURTIS V. GÓMEZ
District Judge
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