United States District Court, D. Kansas
TERRY J. CLARK, Plaintiff,
TIME INC. and HEARTLAND GOLF DEVELOPMENT II, LLC, Defendants.
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
has filed a Motion for Recusal under 28 U.S.C. § 455.
Doc. 76. Under § 455, a judge must disqualify himself
“in any proceeding in which his impartiality might
reasonably be questioned, ” or “[w]here he has a
personal bias or prejudice concerning a party . . . .”
28 U.S.C. § 455(a) & (b)(1). The test for
determining impartiality is an objective one, based on a
judge's “outward manifestations and reasonable
inferences drawn therefrom.” Nichols v. Alley,
71 F.3d 347, 351 (10th Cir. 1995) (citation omitted).
plaintiff makes allegations of bias to argue that recusal is
required. First, plaintiff contends that Timothy West, an
attorney for one of the defendants, made a comment about how
I was going to rule in this case before summary judgment was
issued. Plaintiff claims that this purported comment shows
that “the fix was in.” Doc. 76 at 2. Mr. West
provides context for his comment in a response to
plaintiff's motion. Doc. 83 at 7-8. Mr. West advises that
in November 2016, he appeared at a case management conference
in a separate state court case filed by plaintiff. Plaintiff
had sued David Francis personally, claiming defamation. Mr.
Francis, according to plaintiff's submissions in this
case, is an owner of Heartland Golf Development II, LLC-one
of two defendants in this case. The state court judge asked
Mr. West about the status of this federal case-one involving
facts and issues somewhat similar to those presented by the
state court case. Mr. West responded that the parties had
completed summary judgment briefing, and he believed the
court likely would grant defendants' pending motions. Mr.
West advises that he never suggested that he had spoken to me
about how I was going to rule the summary judgment motions.
Indeed, as Mr. West confirms, we do not know each other, and
so far as I can remember, I have never spoken with Mr. West
about any subject. And, I am certain that I never have
discussed this case with Mr. West.
West's comments at the status conference likely reported
his beliefs about the merits of plaintiff's claims. As
Mr. West explains, he never would have filed the summary
judgment motion on behalf of his client in this case unless
he thought it was meritorious. Mr. West's predictions
about the outcome of the the summary judgment motions does
not show bias or prejudice sufficient to require recusal.
plaintiff contends the Francis family and I are members of
the same country club and that my membership in that club
violates the Judicial Code of Conduct. Plaintiff also
contends that my service before I became a judge on the board
of directors of the Community Foundation of Greater Kansas
City shows bias because the Francis family also has a
begin, I do not know any member of the Francis family. To my
knowledge, I've never met any of them and I don't
even know if they are members-as plaintiff asserts-of the
same country club where I belong. I also am unaware of any
connection that the Francis family has to the Community
Foundation of Greater Kansas City. Indeed, Mr. Francis
confirms in a response to plaintiff's motion that we do
not know each other and we've never met. Doc. 83-2 at 1
¶ 9. Mr. Francis also explains that he resigned from the
country club in 2011-two years before I joined its
membership. Id. ¶¶ 4-6.
plaintiff explains in his motion, I disclosed my membership
in this club as part of the judicial confirmation process. In
a questionnaire submitted to the Judiciary Committee of the
United States Senate, I noted that the club, in the past, was
rumored to discriminate on the basis of race and national
origin (rumors that plaintiff asserts are supported by
newspaper articles from the early 1990s, see Doc. 77
at 80-90). I also explained that before I was invited to join
this club, I determined that the club's current by-laws
explicitly prohibit discrimination against members and
candidates for membership; I also confirmed that the club had
admitted persons of diverse backgrounds as members. Other
federal courts have rejected efforts to disqualify judges
under similar facts. See, e.g., DeLuca
v. Long Island Lighting Co., Inc., 862 F.2d 427, 429 (2d
Cir. 1988) (affirming district court's denial of recusal
motion when plaintiff-a motorcyclist who sustained injuries
on unimproved land owned by a utility company-asserted that
the judge's membership in a country club that owned an
interest in a parcel of undeveloped property would predispose
the judge to apply the New York General Obligations Law,
instead of ordinary tort principles, to the utility
company's similarly undeveloped property); Walker v.
United States, No. CV109-036, 2010 WL 55472, at *15-16
(S.D. Ga. Jan. 7, 2010), vacated on other grounds by
438 F. App'x 855 (11th Cir. 2011) (rejecting
defendant's argument that disqualification was required
based on accusations made before the judge's nomination
that he had belonged to private clubs that discriminated on
the basis of race because the judge was confirmed more than
30 years before defendant's case and defendant alleged no
specific facts of impartiality other than his general
conclusory allegations here are wholly insufficient to meet
the legal standard for recusal, as set forth above. They
recite no facts demonstrating that I have a personal bias or
prejudice against plaintiff, or one favoring defendants
sufficient to warrant recusal under 28 U.S.C. § 455.
Plaintiff's allegations also fail to show that a
reasonable person might reasonably question my impartiality.
To the extent plaintiff is dissatisfied with the court's
previous orders, adverse rulings are no reason for recusal.
See Green v. Branson, 108 F.3d 1296, 1305 (10th Cir.
1997) (stating that “adverse rulings ‘cannot in
themselves form the appropriate grounds for
disqualification'” (quoting Green v.
Dorrell, 969 F.2d 915, 919 (10th Cir. 1992))).
case was assigned to me when it was filed on May 28, 2015.
Plaintiff never sought my recusal or raised any concern about
my presiding over this case. Indeed, he never raised any
issue about my assignment to this case until after the ruling
on the summary judgment motions. As stated, an adverse ruling
provides no basis to seek recusal of an assigned judicial
officer. For all these reasons, I conclude that
plaintiff's Motion for Recusal is groundless. It is
THEREFORE ORDERED THAT plaintiff's Motion for Recusal
(Doc. 76) is denied.
 The club is not Hillcrest Country
Club-the club that formerly employed plaintiff and is one of