NOT FOR PUBLICATION 

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

RICHARD PARTYKA,

 Plaintiff,

v.

MODESTA MEZA, et al., 

 Defendants.

Civil Action No.: 11-3316 (JLL)

OPINION

This matter comes before the Court on Defendants’ motion seeking the Court’s recusal from

this matter. Defendants, Modesta Meza-Role and Eloy Role are proceeding pro se in this matter. 

The Court will decide this motion without oral argument as permitted by Federal Rule of Civil

Procedure 78. The Court has carefully considered Defendants’ motion for recusal and, for the

following reasons, denies Defendants’ motion.

BACKGROUND

By way of background, Defendants’ Notice of Removal was filed with this Court on June 8,

2011. Defendants’ Notice of Removal contains a copy of the Verified Complaint filed by Plaintiff,

Richard Partyka, in the Superior Court of New Jersey, Special Civil Part, Landlord/Tenant Division

in what appears to be a landlord tenant dispute. In particular, Plaintiff’s Complaint seeks a judgment

for the re-possession of a rental premises. See Docket Entry 1-5. On June 20, 2011, this Court

entered an Order to Show Cause directing Defendants to show cause, in writing, by June 29, 2011

why this matter should not be remanded to the Superior Court of New Jersey pursuant to 28 U.S.C.

§ 1447(c) for lack of federal subject matter jurisdiction. Defendants are also the plaintiffs in a

related action also pending before this Court, Civil Action No. 11-2307. 

Defendants have now filed a motion seeking the Court’s recusal from this action pursuant

to 28 U.S.C. § 455. 

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DISCUSSION

The decision of whether to recuse lies within the discretion of the trial judge. United States

v. Wilensky, 757 F.2d 594, 599-600 (3d Cir. 1985). There are two federal statutes that dictate the

circumstances under which a federal judge should recuse. First, 28 U.S.C. § 144, applicable to

federal district court judges, provides that a judge should recuse if the party seeking recusal submits

a “timely and sufficient affidavit” illustrating that the judge has a personal bias or prejudice towards

a party. 28 U.S.C. § 144 (2005). Similar to section 144, section 455(b)(1) of the same title,

applicable to all justices, judges, and magistrates of the Unites States, provides that a judge should

recuse if the judge has a personal bias or prejudice towards a party. 28 U.S.C. § 455(b)(1). 

However, unlike section 144, section 455(b)(1) does not include the requirement of a timely and

sufficient affidavit. See id; see also In re Beard, 811 F.2d 818, 827 (4 Cir. 1987) (“Because § 455 th

places a duty directly upon the judge to evaluate his own actions, it does not require that an affidavit

be filed.”) Furthermore, section 455(a) states that a judge should recuse himself if the judge’s

“impartialitymight reasonably be questioned.” 28 U.S.C. § 455(a). Thus, these statutory provisions

provide that there are two reasons for granting a motion for recusal: (1) the judge has a personal bias

or prejudice towards a party, see 28 U.S.C. § 144, 455(b)(1); or (2) the judge’s impartiality might

reasonably be questioned, see 28 U.S.C. § 455(a). 

Defendants now ask the Court to recuse itself on the basis that “the dismissal of [their] two

consecutives [sic] Complaints [in Civil Action No. 11-2307] . . . branded the proceedings of the

presiding Judge in this case as tinted with bias and prejudice.” (Br. at 3). Defendants go on to argue

that, “under the shadows casted in this case by the proceedings of the presiding Judge,” [Plaintiff]

Richard Partyka has proceeded to lie to the state court judge (in a related landlord tenant dispute)

about the “array” of dismissals by the undersigned. (Br. at 3). Finally, Defendants argue that the

undersigned’s actions, in sua sponte dismissing their complaints [in Civil Action No. 11-2307] for

failure to comply with the pleading requirements of Federal Rule of Civil Procedure 8(a) have, in

effect, helped their adversary in this matter. (Br. at 4).

Defendants’ motion for the recusal is denied because Defendants have not shown that the

undersigned either has a personal bias or prejudice towards Defendants or that my impartiality in this

matter should reasonably be questioned. If a party claims that a judge should recuse because of a

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personal bias, prejudice, or lack of impartiality towards that party, he generally must show that such

bias or prejudice is grounded in extrajudicial sources, such as personal animus, rather than judicial

actions that can be corrected on appeal. See Smith v. Danyo, 585 F.2d 83, 87 (3d Cir. 1978). 

Extrajudicial bias “refers to a bias that is not derived from the evidence or conduct of the parties that

the judge observes in the course of the proceedings.” Johnson v. Trueblood, 629 F.2d 287, 291 (3d

Cir. 1980). In the absence of extrajudicial bias, a party seeking recusal must show that a judge has

a “deep-seated and unequivocal antagonism that would render fair judgment impossible” to obtain

recusal. Liteky v. United States, 510 U.S. 540, 555-556 (1994) (“opinions formed by the judge on

the basis of facts introduced or events occurring in the course of the current proceedings, or of prior

proceedings, do not constitute a basis for a bias or partialitymotion unless they display a deep-seated

favoritism or antagonism that would make fair judgment impossible”). 

The crux of Defendants’ argument is that this Court’s impartiality should be questioned

because the Court has, in effect, helped their adversary, Richard Partyka, by entering two orderssua

sponte dismissing their complaints in Civil Action No. 11-2307 for failure to comply with the

pleading requirements of Federal Rule of Civil Procedure 8(a). As a preliminarymatter, such actions

– in the context of a separate civil action – are judicial in nature. See, e.g., Smith, 585 F.2d at 87

(“the alleged bias must be rooted in extrajudicial sources, rather than in judicial actions which can

be corrected on appeal.”). Moreover, although Defendants claim that the Court’s actions have had

the effect of “helping” their adversary, Richard Partyka, it is the Court’s view that a reasonable

person with knowledge of the relevant facts could just as easily construe the Court’s actions – in 1

sua sponte reviewing their claims, pointing out the pleading deficiencies contained therein and the

automatically granting them leave to amend their claims so as to cure those specific deficiencies –

as benefitting the pro se Defendants in their capacity as plaintiffs in that matter. 

 If a party claims that a judge should recuse under section 455(a) because his 1

“impartiality might reasonably be questioned” the test that applies is “whether a reasonable

person, with knowledge of all the facts, would conclude that the judge’s impartiality might

reasonably be questioned.” In re: Kensington Int’l Ltd., 368 F.3d 289, 301 (3d Cir. 2004). This

is an objective inquiry that considers not only whether a judge is actually impartial but whether

there is an appearance of impartiality. See In re: Community Bank of Northern Virginia, 418

F.3d 277, 320 (3d Cir. 2005).

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CONCLUSION

Based on the reasons set forth above, the Court will not recuse itself from this matter. After

careful consideration of Defendants’ submissions, there is nothing to suggest personal bias or

prejudice, nor are there any facts from which a reasonable person with knowledge of all of the facts

would conclude that the Court’s impartialitymight reasonably be questioned. See generally Cooney

v. Booth, 262 F. Supp. 2d 494, 508 (E.D. Pa. 2003) (quoting Hinman v. Rogers, 831 F.2d 937, 939

(10 Cir. 1987)) (noting that it is “vital to the integrity of the system of justice that a judge not recuse th

himself on unsupported, irrational, or highly tenuous speculation.”). 

An appropriate order accompanies this opinion.

 /s/ Jose L. Linares 

June 27, 2011 JOSE L. LINARES,

UNITED STATES DISTRICT JUDGE

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