UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 93-3832

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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

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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.
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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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
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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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
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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(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 ...
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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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
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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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
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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contacts supposedly create a situation in which a reasonable person

would question the judge's impartiality, mandating disqualification

and vacation of the judgments.6
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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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
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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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
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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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 subparts (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)
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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
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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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
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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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
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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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.
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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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
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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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
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.,

- 18 -

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
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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"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
- 20 -

III.

Accordingly, for the foregoing reasons, we AFFIRM the denial

of the Rule 60(b)(6) motions, and impose sanctions.

AFFIRMED; SANCTIONS IMPOSED