1

The second case was initially filed in the Southern District

of Texas and later transferred to this court.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

LUBBOCK DIVISION

TEXAS TECH UNIVERSITY, §

 §

Plaintiff- §

counterdefendant, §

 § Civil Action No. 5:05-CV-0192-C

VS. § (Consolidated with Civil

 § Action No. 5:05-CV-0276-C)

JOHN SPIEGELBERG, Individually §

and d/b/a RED RAIDER OUTFITTER, §

 §

Defendant- §

counterplaintiff. §

MEMORANDUM OPINION

 AND ORDER 

The dispositive question presented by defendantcounterplaintiff’s motion to recuse Judge Cummings is whether the

motion is timely. Concluding that it is not, the court denies the

motion.

I

These consolidated cases——one filed August 24, 2005 and the

other filed April 14, 20051

——involve trademark infringement and

related claims. After extensive proceedings, and nearly one month

after Judge Cummings entered summary judgment on November 2, 2006,

defendant-counterplaintiff John Spiegelberg, individually and d/b/a

Red Raider Outfitter (“RRO”), filed on November 28, 2006 a motion

to recuse Judge Cummings under 28 U.S.C. §§ 144 and 455. In a

December 7, 2006 order, Judge Cummings expressed strong doubts

 

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228 U.S.C. 455(a) provides: “Any justice, judge, or magistrate

judge of the United States shall disqualify himself in any

proceeding in which his impartiality might reasonably be

questioned.”

3

One of the undersigned’s sons is a resident at the Texas Tech

University Health Sciences Center (“TTUHSC”). He did not receive

his undergraduate or medical degree from Texas Tech University.

His employment and participation in the TTUHSC residency program do

not disqualify the undersigned from deciding this motion, because

the undersigned’s impartiality cannot on that basis be reasonably

questioned. See 28 U.S.C. § 455(a).

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about the timeliness and merits of the motion and rejected several

of the grounds on which RRO relies. When he reached RRO’s

arguments concerning recusal under 28 U.S.C. § 455(a),2

 however, he

concluded out of an abundance of caution that RRO’s motion should

be referred to Chief Judge Fish for a final determination. See

Dec. 7, 2006 Order at 10-11. Chief Judge Fish in turn referred the

motion to the undersigned by order filed the same day.3

II

28 U.S.C. § 144 provides:

Whenever a party to any proceeding in a

district court makes and files a timely and

sufficient affidavit that the judge before

whom the matter is pending has a personal bias

or prejudice either against him or in favor of

any adverse party, such judge shall proceed no

further therein, but another judge shall be

assigned to hear such proceeding.

The affidavit shall state the facts and the

reasons for the belief that bias or prejudice

exists, and shall be filed not less than ten

days before the beginning of the term at which

the proceeding is to be heard, or good cause

shall be shown for failure to file it within

such time. 

 

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“Since formal terms of court were long ago abolished, the

literal ten-day requirement no longer applies. Instead, courts

have simply required a party to exercise reasonable diligence in

filing an affidavit after discovering facts that show bias.”

Pomeroy v. Merritt Plaza Nursing Home, Inc., 760 F.2d 654, 658 (5th

Cir. 1985). The “statute clearly puts the burden on the affiant of

showing good cause for failure to file in time.” Roussel v.

Tidelands Capital Corp., 438 F. Supp. 684, 691 (N.D. Ala. 1977). 

To establish good cause . . . the burden [is]

on the movant affirmatively to establish that

it did not have notice of the alleged

disqualifying facts at the time the case was

assigned to the judge’s docket, but that those

facts were discovered subsequently and the

movant’s motion to disqualify was filed as

soon as possible thereafter.

 

Ann K. Wooster, Annotation, Timeliness of Affidavit of

Disqualification of Trial Judge Under 28 U.S.C.A. § 144, 141 A.L.R.

Fed. 311 (1997) (citing Ross v. Houston Indep. Sch. Dist., No.

10444 (S.D. Tex. 1977)). Newly-discovered facts can constitute

good cause for filing a motion to recuse late in the proceedings.

See United States v. Womack, 454 F.2d 1337, 1341 (5th Cir. 1972)

(holding that motion for recusal was timely filed, even though

filed eleven months after judge first ruled on series of pretrial

motions, when “[a]ppellant had no reason to believe the trial judge

would be biased against him until word reached his counsel through

the legal grapevine of comments by the judge during” an earlier

trial.). Nevertheless, 

 

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4

As explained above, the court does not apply a literal 10-day

standard.

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[a] timely motion to recuse is one filed at

the earliest moment after knowledge of the

facts demonstrating the basis for the recusal.

Although there is no per se untimeliness, the

most egregious delay occurs when a party knows

the facts and circumstances that would lead to

disqualification of the judge but does not

raise the issue of recusal until after the

judge makes an adverse decision.

Hill v. Breazeale, 2006 WL 2528346, at *4 (5th Cir. Sept. 1, 2006)

(per curiam) (unpublished opinion) (emphasis added) (internal

quotation marks and citations omitted) (citing Travelers Ins. Co.

v. Lilieberg Enters., Inc., 38 F.3d 1404, 1410 (5th Cir. 1994);

United States v. Sanford, 157 F.3d 987, 988 (5th Cir. 1998)).

III

RRO relies on the declaration of Stephen Spiegelberg

(“Spiegelberg”) to establish the merits of its recusal motion. It

acknowledges that the declaration “was not filed within the ten day

time frame provided under the rule.” Mot. to Recuse 5.4

 RRO

maintains, however, that there is good cause for this failure. It

argues that Judge Cummings’s “personal bias was not discovered

until after the ruling on Plaintiff’s Motion for Summary Judgment,”

and that “[i]t was at that time that the Declarant was furnished

with information regarding Judge Cumming[s]’s personal bias.” Id.

RRO relies on Spiegelberg’s declaration to establish good cause for

the late filing of the motion. Id. (citing D. App. 4-5). 

 

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Because RRO has the burden on the issue of reasonable

diligence/good cause, and because the court is unable to ascertain

from Spiegelberg’s declaration the purportedly newly-discovered

facts on which RRO relies as a basis for the assertion of good

cause, the court holds that the motion must be denied as untimely.

The issue of timeliness is addressed in ¶ 5 of Spiegelberg’s

declaration. He begins with the conclusory assertion that “[t]he

bias and prejudice of Judge Cummings were not discovered until very

recently,” and he ends with the equally conclusory allegation that

his “[declaration] and the Motion to Recuse were filed as soon as

the bias and prejudice of Judge Cummings were discovered.” D. App.

5. In between these averments, Spiegelberg offers three sentences

to support the assertion of good cause for the late filing of RRO’s

motion: first, that “RRO hired a private investigator to follow

Judge Cummings and watch him attend the Texas Tech University

game,” id.; second, that “extensive research was uncovered recently

with respect to [Judge Cummings’s] other rulings when Texas Tech

University was a part[y] to a suit in front of Judge Cummings,”

id.; and, third, that “not until the ruling on Texas Tech

University’s Motion for Summary Judgment, did news and journalist

reporters begin investigating into Judge Cumming[s]’s partiality,”

id.

Regarding the first assertion, other evidence on which RRO

relies shows that the investigator was hired no later than the

 

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5RRO’s evidence shows that Barnes and Associates did not

receive the report from the investigator in Lubbock until October

29, 2006, and the report was not forwarded to RRO until November 2,

2006. D. App. 2.

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September 2, 2006 football game, see id. at 2, almost three months

before RRO filed the recusal motion. Although the fact that the

private investigator’s report was not made available to RRO until

November 2, 20065 might provide an excuse for an initial delay in

moving for recusal, it does not justify additional further

dilatoriness. RRO offers no explanation for the 26-day delay

between receipt of the investigator’s report and filing the motion.

A timely motion to recuse is one filed at the earliest moment after

knowledge of the facts demonstrating the basis for the recusal.

Hill, 2006 WL 2528346, at *4; United States v. Patrick, 542 F.2d

381, 390 (7th Cir. 1976) (“[T]he law is well settled that one must

raise the disqualification of the judge at the earliest moment

after knowledge of the facts demonstrating the basis for such

disqualification.” (citing Satterfield v. Edenton-Chowan Bd. of

Educ., 530 F.2d 567, 574-75 (4th Cir. 1975)). The delay involved

here does not satisfy that standard.

As to the second assertion, RRO does not explicitly identify

the rulings that it supposedly uncovered or when it uncovered them

(other than that it did so “recently”). This is fatal to RRO’s

motion. Moreover, the only rulings that Spiegelberg does

specifically identify in his declaration are found in ¶ 2. See D.

 

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6

Poduslo is also spelled “Paduslo” in RRO’s appendix. D. App.

4.

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App. 4. If it is these decisions on which RRO relies, it cannot

show reasonable diligence or good cause. Judge Cummings’s decision

in the Poduslo case was issued nearly five years ago. See id. at

D. App. 4, 7.6 And the motion to recuse that the defendant filed

in Butler was filed over three years ago, on September 25, 2003.

See id. at 14. The court is therefore unable to find that RRO

recently uncovered any rulings favorable to Texas Tech and then,

after discovering facts that showed bias, exercised reasonable

diligence in moving for recusal.

Concerning the third allegation, Spiegelberg fails to specify

the supposedly newly-discovered facts on which RRO relies that are

purportedly contained in news articles. Many of the facts that

might have been the subject of these press reports, such as the

fact that Judge Cummings is a Texas Tech University graduate,

occurred as far back as 1967. Obviously, the inclusion of this

information in a recent news article would not provide good cause

for a late-filed recusal motion or demonstrate reasonable

diligence. And the article RRO includes in its appendix from The

Plain Dealer shows that it was printed from the Internet on

September 7, 2006, id. at 23, over two months before RRO filed its

recusal motion. Because RRO has failed to specify the facts on

which it relies, the court has no basis for concluding that the

 

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articles contained additional facts of which RRO was not already

aware.

Finally, “the most egregious delay occurs when a party knows

the facts and circumstances that would lead to disqualification of

the judge but does not raise the issue of recusal until after the

judge makes an adverse decision.” Hill, 2006 WL 2528346, at *4.

Judge Cummings has presided over these consolidated cases since

2005, and on November 2, 2006 he entered a summary judgment ruling

that was adverse to RRO. Twenty-six days later, RRO moved to

recuse him, supposedly on the basis of newly-discovered facts. RRO

has failed to establish that it did not know beforehand of the

facts and circumstances that would lead to disqualification. Among

other evidence in the record, the facts that RRO’s private

investigator began surveilling Judge Cummings on September 2, 2006

and that The Plain Dealer article was printed from the Internet on

September 7, 2006 undermine the premise that RRO was unaware.

RRO has failed to demonstrate reasonable diligence or good

cause for failing to file a timely motion under 28 U.S.C. § 144 to

recuse Judge Cummings. Accordingly, the motion must be denied as

untimely.

 

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* * *

Defendant-counterplaintiff’s November 28, 2006 motion to

recuse is denied.

SO ORDERED.

December 11, 2006.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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