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, LINDA V. SMITH-FRANCIS,
WILLIAM E. SMITH, ELOISE V. SMITH-
HENDRICKS, BAB FRIIS NO. 1, PAUL
HOFFMAN, JANE HOFFMAN-WALKER,
ELEANOR ADAMS HOFFMAN, MAXWELL
ADAMS HOFFMAN, GLORIA FRANCOIS
MCGOWAN, DAVID A. BORNN AS TRUSTEE
TO THE GAF TRUST ESTATE 14 JOHN’S
FOLLY EXCLUDING ALL HEIRS AT LAW,
ESTATE 15 CONCORDIA A, CORAL BAY
QUARTER, ST JOHN UNITED STATES
VIRGIN ISLANDS, NATIONAL PARK
SERVICE, LAND RESOURCES DIVISION,
DEPARTMENT OF INTERIOR, THE UNITED
STATES OF AMERICA, STANLEY
SELENGUT, WILLIAM B. POPPELTON,
LORRAINE A. POPPELTON, KEVIN M.
WALSH, MARIA K. STURATIS, SCOTT E.
WILMOSKI, CHARLES M. PERDUE,
MONICA PERDUE, JOZSEF NEMETH,
NANCY NEMETH, FRED S. PATTERSON,
MARGARET D. PATTERSON, JOHN R.
PERGOLIZZI, TREASURE VIEW LLC,
GEORGE PILLORGE, DEBORAH PILLORGE,
SCOTT L. HARTSHORN, CLAUDETTE C.
HARTSHORN, HEINZ G. FISHER, LINDA
G. BURDET TRUSTEES OF THE HEINZ G.
FISHER TRUST, DONALD DURANTE,
SAFIA B. DURANTE, CRAIG E.
MITCHELL, ALAN MARTIN KAUFMAN,
RACHELLE KAUFMAN, JEFFREY J.
McCRAVE, ANN McCRAVE, DOROTHY K.
JANOSKO, WILLIAM R. KINCER, SUSAN
B. KINCER, SUSAN GREER
LITTLEFIELD, WAYNE CHESTERFIELD,
MONIQUE FRANCOIS, PEDRITO
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Case: 3:11-cv-00041-RAM-GAT Document #: 368 Filed: 06/18/15 Page 1 of 11

Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Order
Page 2
FRANCOIS, SALT POND VISTA LLC,
V.I. JOSEPH PALMINTERI, CARRIE
GLENN, MARC KAVE, EMILY J.
BRATTON, RICK HATHAWAY, RENE A.
SERVANT aka RENE H. SERVANT, MARIE
THERESE L. SERVANT, LORI JANE
SNACK, BRIAN K. WALDEN,
MINISTER ISHMAEL R. MUHAMMED,
MICHAEL CARPER, REUBEN WHEATLEY,
et al.,
Defendants.
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APPEARANCES:
Ida Smith
New York, NY
Pro se plaintiff,
Ronald W. Sharpe, USA
Jason Cohen, AUSA
St. Thomas, VI
For the United States National Park Service,
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,
Wayne Chesterfield
Pro se,
Monique Francois
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Order
Page 3
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,
Mark D. Hodge, Esq.
Hodge & Francois
St. Thomas, U.S.V.I.
For Kevin M. Walsh and Treasure View LLC,
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Order
Page 4
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,
Susan B. Kincer
Pro se,
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Order
Page 5
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 the motion of Ida Smith (“Smith”) to
disqualify Judge Curtis V. Gómez.
In her motion, Smith notes that the undersigned was
formerly employed as an attorney at Dudley, Topper and
Feuerzeig. She also indicates that “George H.T. Dudley of
Dudley, Topper and Feuerzeig was the Plaintiff in Dudley v.
Meyers DCVI 279-1967 and the Appellant in USCA for the Third
Circuit 17580, 17581 and 17582.” (Motion to Disqualify, ECF No.
359, at 2.) Smith further indicates that certain defendants in
this action are successors in interest to parties in the
previously referenced case.1 Smith also objects to the Court’s
1 Smith has not submitted any evidence in support of these statements in her
motion. Nevertheless, the Court will assume their truth for the purpose of
resolving this motion. For that limited purpose, the Court will also assume
that the matter in controversy presented here is the same matter in
controversy in those cases.
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Order
Page 6
rulings and the Court’s failure to address motions within her
desired timeframe.2
It is unclear whether she is arguing that the undersigned’s
recusal is required by 28 U.S.C. s 455(a), 28 U.S.C. s
455(b)(1), or 	28 U.S.C. s 455(b)(2). The Court will determine
whether recusal is appropriate under any of those prongs.
A. 28 U.S.C. s 455(b)(2)
28 U.S.C. § 455(b)(2) states, in relevant part, that a
judge “shall 	. . . disqualify himself 	. . . [w]here 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
2 Smith indicates that the Court has permitted the successors in interests of
the parties in the cited case--who are named defendants in this action--to
“cause interference” in the action. The only interference she describes is
the filing of a motion to dismiss that she views as meritless. Smith also
indicates in her affidavit--but not her motion--that the Court has not yet
decided pending motions to dismiss and for summary judgment. At the time of
her filing, the oldest of those motions had been pending for approximately
five months. The majority of the other motions had been pending for less than
three months.
[J]udicial 	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). The Court does not find that such rare
circumstances are presented here.
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Order
Page 7
such lawyer has been a material witness concerning it.” 28
U.S.C. § 455(b)(2).
The undersigned was not employed by Dudley, Topper and
Feuerzeig until the case cited by Smith had concluded. That case
was litigated and decided in the 1960’s and 1970’s, long before
the undersigned’s association with the law firm. 28 U.S.C. §
455(b)(2) only requires recusal when “a lawyer with whom [a
judge] previously practiced law served during such association
as a lawyer concerning the matter . . . .” 28 U.S.C. §
455(b)(2)(emphasis supplied). The undersigned is unaware of any
legal work done on this matter by any attorney at Dudley, Topper
and Feuerzeig while he was associated with the firm.
Accordingly, 28 U.S.C. s 455(b)(2) does not require recusal.
B. 28 U.S.C. s 455(b)(1)
28 U.S.C. § 455(b)(2) states, in relevant part, that a
judge “shall 	. . . disqualify himself 	. . . [w]here he has a
personal bias or prejudice concerning a party, or personal
knowledge of disputed evidentiary facts concerning the
proceeding . . . .” 28 U.S.C. § 455(b)(2).
The Third Circuit has considered whether prior employment
alone may demonstrate requisite bias. See generally Edelstein v.
Wilentz, 812 F.2d 128 (3d Cir. 1987). In Edelstein v. Wilentz,
the plaintiff sought “a declaration that a Rule promulgated by
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Order
Page 8
the New Jersey Supreme Court deprived [the plaintiff] and all
other attorneys of the State of New Jersey of their federal
constitutional rights guaranteed by the First, Fifth and
Fourteenth Amendments and an injunction against continued
enforcement of the Rule.” Id. at 129-30. The case was assigned
to a judge that “had served from 1973 to 1978 as Director of the
Office of the New Jersey State Courts charged with enforcement
of the New Jersey Supreme Court rules governing attorneys'
professional conduct.” Id. at 130. “[I]t had been eight years
since [the judge] had been employed by the New Jersey State
Courts and . . . he had not been involved in the “promulgation
or passing or acceptance” of [the Rule], which was promulgated
after he left his position with the New Jersey State Courts.”
Id. The plaintiff filed a motion to dismiss because he believed
the judge may have had a personal bias against him. Id. The
district court denied the motion. Id.
On appeal, the Third Circuit affirmed the district court.
The Third Circuit rejected the plaintiff’s argument because the
plaintiff had “failed to support his allegation of personal bias
with any evidence other than the allegation of [the judge’s]
prior employment. Since [the judge] had not had any personal
responsibility for or connection with the subsequently enacted
Rule, his prior employment does not constitute bias in fact
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Order
Page 9
which requires recusal under section 455(b)(1).”Edelstein v.
Wilentz, 812 F.2d 128, 131 (3d Cir. 1987).
Here, the undersigned previously worked for Dudley, Topper
& Feuerzeig. However, like the judge in Edelstein v. Wilentz,
the undersigned had no involvement in the matter at issue.
Moreover, the undersigned has no personal knowledge of any
disputed evidentiary facts. Accordingly, 28 U.S.C. s 455(b)(1)
does not require recusal.
C. 28 U.S.C. s 455(a)
28 U.S.C. § 455(a) states, in relevant part, that “[a]ny .
. . 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). Under this section a judge must
consider whether a reasonable person knowing all the
circumstances would harbor doubts concerning the judge's
impartiality.” Jones v. Pittsburgh Nat. Corp., 899 F.2d 1350,
1356 (3d Cir. 1990).
The situation presented here bears some similarity to the
situation presented in Martin v. Monumental Life Ins. Co., 240
F.3d 223 (3d Cir. 2001). In that case, the defendant was
represented by the judge’s former law firm--Dilworth, Paxson,
Kalish & Kauffman (“Dilworth”)--and by one the judges former
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Order
Page 10
colleagues--Attorney James J. Rodgers (“Rodgers”). See Martin,
240 F.3d at 231. The judge in that case
had 	been 	affiliated 	with 	the 	Dilworth 	firm 	as 	an
associate 	from 	1983 	through 	1986, 	and 	as 	a 	partner
from 	1986 	through 	1992. 	The 	judge 	had 	joined
Dilworth 	at 	the 	same 	time 	as 	had 	Attorney 	Rodgers;
in 	1986 	they 	both 	had 	become 	partners. 	The 	judge
worked 	for 	the 	firm 	in 	the 	Scranton 	office;
Rodgers 	worked 	in 	its 	Philadelphia 	office. 	In
1992, 	the 	judge 	terminated 	his 	association 	with
Dilworth; 	his 	financial 	arrangements 	with 	the 	firm
ceased 	in 	October 	1994, 	and 	he 	had 	never
represented 	Monumental 	during 	his 	affiliation 	with
Dilworth.
Id. The Third Circuit held that “there were no circumstances
showing any lingering, disqualifying relationship and nothing to
suggest to any reasonable person an appearance of impartiality.”
Id. at 236. Indeed, the Third Circuit called the judge’s
disqualification in a related case with the same attorney
“unnecessary” and “improvident.” Id.
Here, the undersigned worked at Dudley, Topper & Feuerzeig
for four years, left the firm more than 17 years ago, and has no
financial arrangements with the firm. As such, the Court finds
that there is no appearance of partiality. Accordingly, 28
U.S.C. s 455(a) does not require recusal.
The premises considered; it is hereby
ORDERED that Smith’s motion to disqualify is DENIED.
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Order
Page 11
S\
Curtis V. Gómez
District Judge
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