UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF PUERTO RICO

John Zerbe, Trustee

v. NH Civil No. 05-ds-021-JD

PR Civil No. 02-2357

Gabriela Alejandra Guzman Pinal

and Luis Olmos Dueas

O R D E R

On March 27, 2006, the court granted in part and denied in

part a motion filed by the defendant, Gabriela Alejandra Guzman

Pinal (“Guzman”) to extend discovery. In that order, the court

reminded the plaintiff, John Zerbe, that it was his

responsibility to schedule Guzman’s deposition and that he might

forfeit his opportunity to depose her if he failed to do so. The

court also ordered counsel to confer for the purpose of

scheduling Guzman’s deposition and to file the deposition

schedule by April 7, 2006. No deposition schedule has been

filed, and neither party sought an extension of time to do so.

Zerbe filed a motion that was docketed as a motion to

clarify (although the actual filing is not a motion to clarify),

a motion for recusal, and a motion requesting resolution. Guzman

has not responded to Zerbe’s motions, and the time for response

has passed as to the first two motions. The court resolves the

motions as follows.

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1After this case was reassigned to me, an electronic case

file was opened in the District of New Hampshire for the case. 

On January 21, 2005, the parties were ordered to file

electronically original copies of pleadings, motions, and other

documents in the Districts of New Hampshire and Puerto Rico. The

court relies on filings made in this district based on the

January 21, 2005, order.

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A. Motion to Clarify

The docket identifies New Hampshire document number 50 as

“Motion to Clarify Motion Requesting Clarification of Factual

Grounds Used by this Honorable Court to Justify Defendant

Guzman’s Proffer as it Pertains to Initial Scheduling Conference

Memorandum as Good Cause for Extension of Time to Hold Her

Deposition.” The docket entry for that document also lists three

exhibits that were filed with the motion. The document filed,

however, is “Motion Requesting Leave to File Supplemental

Exhibit,” which is dated September 6, 2005, and is a copy of a

motion that was filed as New Hampshire document number 21 on

September 6, 2005. That motion was granted on September 7, 2005.

The docket in the District of Puerto Rico has, as document

number 148, a motion to clarify filed by Zerbe. Because the

motion to clarify was not filed here, however, it is not properly

before the court as a pending motion.1 The court also notes that

the exhibits filed in support of the motion, in both districts,

are in Spanish without an English translation, in violation of

Puerto Rico Local Rule 10(b). 

Despite the procedural irregularities, the court has

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2The motion challenges the decision of the judges in the

District of Puerto Rico to recuse themselves from this case, and

also criticizes the rulings, decisions, and progress in the case

during the time when the case was assigned to Judge Lagueux in

the District of Rhode Island. 

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reviewed the motion to clarify filed in the District of Puerto

Rico and concludes that it is not properly supported and lacks

merit. The court again notes that counsel failed to file a

deposition schedule by April 7, 2006, as they were required to

do. The motion to clarify is denied. 

B. Motion for Recusal

Zerbe moves to have me recuse myself from this case on the

ground that I am biased in favor of defendant Guzman. In support

of the motion, Zerbe reviews the proceedings, decisions, and

rulings in this case and in related cases, which he alleges

demonstrate my bias in favor of Guzman.2 Because Zerbe has not

asserted bias under 28 U.S.C. § 144 or filed the required

affidavit, I will rule on the motion for recusal myself.

“Any justice, judge, or magistrate 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). Section 455(a) addresses the objective appearance of

bias and does not require proof of actual bias. In re United

States, 441 F.3d 44, 68 (1st Cir. 2006). “The trial judge has a

duty not to recuse himself or herself if there is no objective

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basis for recusal.” Id. Therefore, recusal is “appropriate only

when the charge is supported by a factual basis, and when the

facts asserted provide what an objective, knowledgeable member of

the public would find to be a reasonable basis for doubting the

judge’s impartiality.” In re Boston’s Children First, 244 F.3d

164, 167 (1st Cir. 2001) (internal quotation marks and footnote

omitted).

A motion to recuse must be timely filed, that is, “at the

earliest moment after acquiring knowledge of the relevant facts.” 

In re United States, 441 F.3d at 65 (internal quotation marks and

alterations omitted). Courts should reject “strategic motions to

recuse a judge whose rulings have gone against a party.” Id. In

addition, “[t]he law is well settled that, absent quite unusual

circumstances, a judge cannot be recused for views formed on the

basis of what he learned in court.” Obert v. Republic Western

Ins. Co., 398 F.3d 138, 145 (1st Cir. 2005) (citing Liteky v.

United States, 510 U.S. 540, 550-56 (1994)). “[J]udicial rulings

alone almost never constitute a valid basis for a bias or

partiality motion . . . 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,

510 U.S. at 555.

The plaintiff in this case was originally Alfredo

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Castellanos. After he declared bankruptcy and a trustee, John

Zerbe, was appointed in the bankruptcy case, Zerbe was

substituted as the plaintiff here. The bankruptcy court

appointed Castellanos to serve as counsel for Zerbe.

In the motion for recusal, Castellanos, on behalf of Zerbe,

states that he first began to suspect that I was advocating on

behalf of the defendant in February of 2005. Castellanos first

raised the issue of bias and recusal on August 8, 2005, in

response to the court’s rulings on the proper parties in this

action. He alleged then that

disturbing matters that were improperly addressed and

adjudicated by this Court in its Order dated July 14th,

2005 and the amendment thereto, among other improper

rulings since your Honor was assigned to the present

case, have unfortunately compelled [Castellanos], once

the Bankruptcy Court rules upon the above mentioned

motion that was filed by the United States Trustee 

. . . to respectfully move this Court to recuse itself

from intervening in all matters that pertain to

[Castellanos] as mandated by analysis of case law under

18 U.S.C. § § 455 & 144 of the Federal Judicial Center

regarding recusals, and the specified provisions of The

Code of judicial ethics and pertinent case law.

Doc. no. 16 at 3. On September 3, 2005, Castellanos filed a

response to the court’s order of August 17, 2005, and sought

“other remedies,” including “leave from this Court to file a

sealed Motion for Recusal and that no matter be entertained by

this Court in the present case.” Doc. no. 20 at 5. 

On September 29, 2005, Castellanos moved for clarification

and “Resolution of Pending Remedies on Behalf of the Plaintiff.” 

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3In the motion, Castellanos notes that he had requested

leave to file a motion for recusal under seal “with the exclusive

intention of protecting the integrity and the public perception

of our Federal Court” and that his request was denied. Doc. no.

51 at 1.

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In that motion, Castellanos stated that he felt “compelled to

move this Court for recusal before any other matter is

entertained by this Court.” Doc. no. 28 at 2. He also stated

that he “does not wish to make public the factual and legal

grounds that lead us to believe that your Honor is incapable of

presiding over the present case in an impartial manner.” Id.

Castellanos sought leave “to file a sealed motion for recusal, in

order to protect both the image and integrity of your Honor and

this District Court.” Id. at 2-3.

On October 3, 2005, the court explained that the plaintiff

must seek relief by filing a motion and that he could file an

appropriate motion seeking recusal. The court denied his request

that the motion be filed under seal. The court also notified

Castellanos that this judge would continue to preside in this

case unless and until a motion for recusal is granted or the case

is resolved. Castellanos, however, did not file a motion for

recusal at that time. 

On April 13, 2006, Castellanos, on behalf of Zerbe, moved

for recusal in response to the court’s order granting additional

time for the defendant’s deposition.3 He contends that his

motion for recusal is timely because he did not have a sufficient

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4I have not, of course, considered the decisions and rulings

made by other judges in determining whether or not my recusal

would be appropriate.

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basis for the motion until the court granted, in part, Guzman’s

discovery motion. Given Castellanos’s “suspicion” in February of

2005, his statements thereafter about the court’s alleged bias,

and his requests for leave to file a motion for recusal beginning

in August of 2005, his current motion is not timely. Even if it

were timely, however, the motion lacks a sufficient factual basis

to support recusal.

After reviewing the motion and based on my familiarity with

the challenged rulings and decisions cited therein, I am

satisfied that there is neither actual bias nor the appearance of

bias that would make recusal appropriate in this case.4 The

circumstances here do not approach those addressed in In re

United States, supra. Therefore, the motion for recusal is

denied.

C. Motion Requesting Resolution

Twenty days after the recusal motion was filed, Zerbe moved

for resolution of that motion. He states that he “is compelled

to advance to this Court that failure to resolve Plaintiff’s

motion promptly will compel Plaintiff to move the First Circuit

Court of Appeals with an unnecessary, and wasteful, Writ of

Mandamus.” Doc. 53 at 1-2. The motion was addressed in due

course. Therefore, the motion for resolution is moot.

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D. Issue of Representation

Zerbe repeatedly states in his motion for recusal that his

attorney, Alfredo Castellanos, will be “the principal witness in

all pending cases.” The prominence of these assertions brought a

potential ethical problem to the attention of the court. If

Castellanos expects to be a principal witness at trial in this

case, then he must address his ethical obligation “to refrain

from appearing as counsel in a case in which he reasonably can

anticipate that he will be called as a percipient witness.” 

McCulloch v. Velez, 364 F.3d 1, 4 (1st Cir. 2004). Before trial,

therefore, Castellanos must consider whether his continued

representation of Zerbe is ethically permissible and appropriate

in this case.

Conclusion

For the foregoing reasons, the plaintiff’s motion to clarify

(NH document no. 50 and PR document no. 148) is denied. The

plaintiff’s motion for recusal (NH document no. 51) is denied,

and his motion requesting resolution (NH document no. 53) is

denied as moot.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

 (Sitting by designation.)

May 9, 2006

cc: Alfredo Castellanos-Bayouth, Esquire

Angel E. Rotger-Sabat, Esquire

USDC-PR, Clerk

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