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38 F.3d 1404; 1994 U.S. App. LEXIS 32923; 30 Fed. R. Serv. 3d (Callaghan) 1529
SUBSEQUENT HISTORY: [**1] As Corrected. under 28 U.S.C. § 455(a) (judge's "impartiality might
reasonably be questioned"), and, therefore, to set aside
PRIOR HISTORY: Appeal from the United States the adverse judgments. The district court denied the
District Court for the Eastern District of Louisiana (CA- motions as being untimely, and, alternatively, without
93-173-I). Appeals from the United States District Court merit. We AFFIRM and impose sanctions.
for the Eastern District of Louisiana (CA-90-1983-I c/w
I.
90-2601-I). Appeals from the United States District
Court for the Eastern District of Louisiana (CA-92-58-I). Once again, this court has before it another of the
D.C DOCKET NUMBER (93-3832) CA-92-58-I, D.C. continuing disputes between the Liljebergs and Travelers
DOCKET NUMBER (93-3833) CA-90-1983-I c/w 90- Insurance Company. The background to the three actions
2601-I, D.C. DOCKET NUMBER (93-3891) CA-93- before us was developed in our earlier [**2] decisions in
173-I. JUDGE Henry A. Mentz, Jr. 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
COUNSEL: For Defendant-Appellant: GOLDEN & Kenner, La., Inc., 21 F.3d 1107 (5th Cir. 1994) (No. 92-
FONTE, Kenneth C. Fonte, Metairie, LA. 9579; unpublished); and Travelers Ins. Co. v. St. Jude
Hosp. of Kenner, La., Inc., 37 F.3d 193, slip op. 581
For Plaintiff-Appellee: PHELPS DUNBAR, Brent B. (5th Cir. 1994). We develop the time line only as
Barriere, L. Tiffany Hawkins, NOLA. necessary to clarify and focus the common issue in these
three related appeals.
JUDGES: Before HIGGINBOTHAM, JONES, and
[*1407] A.
BARKSDALE, Circuit Judges.
In June 1990, Travelers filed suit against the St. Jude
OPINION BY: RHESA HAWKINS BARKSDALE Medical Office Building Limited Partnership
(Partnership) and other defendants seeking, inter alia, the
OPINION seizure and judicial sale of the St. Jude Medical Office
Building (Partnership Litigation). 1 Following a jury trial,
[*1406] RHESA HAWKINS BARKSDALE,
an amended judgment for Travelers was entered in
Circuit Judge:
December 1992; the Liljebergs appealed. On October 1,
At issue in these three related actions are the use of 1993, while the appeal was pending, the Liljebergs
belated and extremely intemperate post-judgment moved under Rule 60(b)(6) to have the judgment
motions, filed pursuant to Fed. R. Civ. P. 60(b)(6), vacated, 2 claiming that, primarily because of his social
seeking, primarily because of the trial judge's club contacts, United States District Judge Henry A. Mentz,
memberships and other social contacts, to disqualify him Jr., violated [**3] 28 U.S.C. § 455(a) by failing to
disqualify himself from the action although he knew, or Following that denial, but before LEI filed this appeal
should have known, that his impartiality might (No. 93-3832), our court affirmed the underlying
reasonably be questioned. The denial of the motion was summary judgment. Travelers, 7 F.3d 1203.
appealed (No. 93-3833). As for the earlier appeal of the
C.
underlying judgment, our court affirmed the Liljebergs'
liability on April 20, 1994; the determination of When Travelers was unsuccessful in its efforts to
prejudgment interest was reversed and remanded. collect the Partnership Litigation judgment, it sued the
Travelers, 21 F.3d 1107 (unpublished). general partner, St. Jude Hospital of Kenner, Louisiana,
Inc. (SJH Litigation). On July 30, 1993, summary
1 In addition to the Partnership, other judgment was awarded Travelers; [**5] and, SJH
defendants were St. Jude Hospital of Kenner, appealed the denial of its res judicata claim. Unlike the
Louisiana, Inc. (SJH); Liljeberg Enterprises, Inc. first two actions, SJH waited until November 2, 1993, to
(LEI); Krown Drugs, Inc. (Krown); John A. file essentially the same 60(b)(6) motion. See notes 4-5,
Liljeberg, Jr.; and Robert Liljeberg. SJH, Krown, infra. It appealed the denial (No. 93-3891). We recently
and LEI are related entities, each formed, owned affirmed the underlying summary judgment. Travelers,
and controlled by the Liljebergs. Accordingly, No. 93-3731, slip op. 581.
references in this opinion to the Liljebergs
II.
include not only John and Robert Liljeberg, but
also their entities. At issue for all three appeals from the denials of the
Rule 60(b)(6) motions is whether the district judge
Together with the seizure and sale of the
abused his discretion in refusing, post-judgment, to
building, Travelers also sought: unpaid rents from
recuse himself pursuant to § 455(a). 3 That section
tenants Krown and LEI under their respective
[*1408] provides in relevant part: "Any ... judge ... of
leases; joint liability of the Partnership for the
the United States shall disqualify himself in any
unpaid rents of affiliates Krown and LEI due to
proceeding in which his impartiality might reasonably be
the Partnership's consistent misrepresentations of
questioned." 28 U.S.C. § 455(a). A party seeking such
timely collection of their rents; compensation for
disqualification "must show that, if a reasonable man
the destruction of improvements; the seizure and
knew of all the circumstances, he would harbor doubts
sale of movables surreptitiously removed from
about the judge's impartiality." Matter of Billedeaux,
the building; and reimbursement for the cost of
972 F.2d 104, 105 (5th Cir. 1992) (quoting Chitimacha
installing another storm and sewerage system in
Tribe of La. v. Harry L. Laws Co., 690 F.2d 1157, 1165
response to the Liljebergs' threats to block the
(5th Cir. 1982) (citations omitted), cert. denied [**6] ,
existing one.
464 U.S. 814, 78 L. Ed. 2d 83, 104 S. Ct. 69 (1983)).
[**4]
2 Fed. R. Civ. P. 60(b) provides, in pertinent
3 Although all three 60(b)(6) motions were filed
part:
while appeals from the underlying judgments
were pending, the district court had jurisdiction to
On motion and upon such terms
consider the motions. Generally, when an appeal
as are just, the court may relieve a
is taken, the district court is divested of
party or a party's legal
jurisdiction except to take action in aid of the
representative from a final
appeal until the case is remanded to it by the
judgment, order, or proceeding for
appellate court, or to correct clerical errors under
the following reasons: ... (6) any
Rule 60(a). 7 James W. Moore et al., Moore's
other reason justifying relief from
Federal Practice, P 60.30[2]. Our court
the operation of the judgment.
recognizes, however,
they sat passively while Judge Mentz entered judgment 9 The Liljebergs maintain that upon learning of
in the third case. 9 Only after being unsuccessful in that the club memberships, their counsel "commenced
case did they seek recusal in all three. The district court an investigation of the social ties among those
denied the motions on two alternate grounds: untimely, persons to determine whether Judge Mentz had
and without merit. We address each basis. violated 28 U.S.C. § 455(a)." In addition, they
"commissioned and secured the performance of a
7 In denying the motions, Judge Mentz stated sociological study to objectively evaluate public
that he had disclosed his membership in the perception of the appearance of impropriety
Boston Club during his confirmation process (he associated with the exclusive private club
was appointed in 1982), and had listed it since membership" of Judge Mentz and other New
1984 in the Almanac of the Federal Judiciary. Orleans attorneys. Needless to say, without
Although the Liljebergs characterize this commenting on the propriety vel non of such a
publication as "esoteric" and as one "more likely poll, this is not the legal standard by which a §
than not most lawyers have never heard of ... and 455(a) disqualification is judged.
fewer still have bothered to peruse", another court
A.
has described it as "a publication widely
circulated to the bench and bar". Standing The first issue is whether the motions were
Comm. on Discipline of the United States Dist. untimely. Rule 60(b)(6) empowers federal courts with
Court for the Cent. Dist. of Cal. v. Yagman, 856 broad authority to relieve a party from a final judgment.
F. Supp. 1395, 1397 (C.D. Cal. 1994). Liljeberg, 486 U.S. at 863; Klapprott v. United States,
[**11] 335 U.S. 601, 613, 93 L. Ed. 266, 69 S. Ct. 384 (1949).
8 Unlike 28 U.S.C. § 144 (requiring an affidavit Moreover, a 60(b)(6) motion is not subject [**13] to the
when seeking recusal based on bias or prejudice), one year limitation imposed upon sub-parts (1) through
an affidavit is not required to seek (3). Instead, a party seeking 60(b)(6) relief must file the
disqualification under § 455. Nevertheless, we motion within a "reasonable time", Liljeberg, 486 U.S. at
are still troubled that certain parties may abuse § 863, which depends upon the particular facts and
455 for a dilatory and litigious purpose based on circumstances of the case. First RepublicBank Fort
little or no substantiated basis. See Delesdernier Worth v. Norglass, Inc., 958 F.2d 117, 119 (5th Cir.
v. Porterie, 666 F.2d 116, 121 (5th Cir.) 1992); Ashford v. Steuart, 657 F.2d 1053, 1055 (9th
("Congress did not enact § 455(a) to allow Cir. 1981) ("What constitutes 'reasonable time' depends
counsel to make a game of the federal judiciary's on the facts of each case, taking into consideration the
ethical obligations; we should seek to preserve interest in finality, the reason for delay, the practical
the integrity of the statute by discouraging bad ability of the litigant to learn earlier of the grounds relied
faith manipulation of its rules for litigious upon, and prejudice to other parties").
advantage."), cert. denied, 459 U.S. 839, 74 L.
Because the Liljebergs rely upon § 455(a) for
Ed. 2d 81, 103 S. Ct. 86 (1982).
invoking Rule 60(b)(6), we consider also § 455(a)'s
On the other hand, in making the 60(b)(6) requirements in determining whether the motions were
motions, and concerning the key issue of timely. See Goldfine v. United States, 326 F.2d 456,
timeliness, the Liljebergs were obviously 457-58 (1st Cir. 1964) (a litigant who seeks a 60(b)
required, but failed, to support their motions with vacation based on lack of notice must act within the
affidavits or other sworn proof that they did not period he would have had to have originally acted upon
know of Judge Mentz's club membership prior to receiving [**14] actual notice). Our court has
July 23, 1993. E.g., Merit Ins. Co. v. Leatherby recognized that a timeliness requirement applies to
Ins. Co., 714 F.2d 673, 683 (7th Cir.) (a party is raising § 455(a) disqualification. Delesdernier, 666
required, with affidavits, to support a 60(b) F.2d at 121-23. Furthermore, it is well-settled that -- for
motion to vacate an arbitration award when it obvious reasons -- one seeking disqualification must do
claims a lack of prior knowledge of a former so at the earliest moment after knowledge of the facts
relationship between an adversary and an demonstrating the basis for such disqualification. Id. at
arbitrator; the party must negate any inference 121 n.3; United States v. Patrick, 542 F.2d 381, 390 (7th
that it had implicitly consented to go before the Cir. 1976), cert. denied, 430 U.S. 931, 51 L. Ed. 2d 775,
arbitrator knowing all it now knows but saying 97 S. Ct. 1551 (1977); Marcus v. Director, Office of
nothing), cert. denied, 464 U.S. 1009, 78 L. Ed. Workers' Compensation Programs, U.S. Dep't of
2d 711, 104 S. Ct. 529 (1983). Labor, 179 U.S. App. D.C. 89, 548 F.2d 1044, 1051 n.21
[**12] (D.C. Cir. 1976) (citing cases stating the general rule that
one must raise the issue of disqualification of the trier, Had the Liljebergs acted promptly, the district judge
whether judge, administrator, or arbitrator, at the earliest could have considered disqualification before entering
practicable moment after relevant facts become known). judgment on the pending summary judgment motion in
the third case. As our court has observed, "if
The district court did not abuse its discretion in
disqualification may be raised at any time, a lawyer is
rejecting all three motions as untimely. As noted, upon
then encouraged to delay making a § 455(a) motion as
allegedly [**15] discovering on July 23, 1993, the
long as possible if he believes that there is any chance
primary basis for their motions, the Liljebergs failed to
that he will win at trial. If he loses, he can always claim
mention their concern to the judge or to Travelers. In
the judge was disqualified and get a new trial."
fact, they not only waited until Judge Mentz entered
Delesdernier, 666 F.2d at 121.
judgment in the third case (SJH Litigation), but delayed
even longer. In the SJH Litigation, after the district court As for the first two cases, it is certainly reasonable
entered judgment on July 30, the Liljebergs (specifically, to suspect that the delay in filing the motions in those
SJH) on August 9, 1993, moved for a new trial or to alter cases was also for the purpose of hoping not to impede a
the judgment, which they subsequently supplemented favorable decision in the third. Therefore, the delay in
with another motion to vacate judgment. They alleged, seeking recusal in the third action colors that for the first
inter alia, that Judge Mentz's law clerk and Travelers' two. Had the recusal motions in all three actions been
counsel made "false statements of material fact to the filed promptly after the alleged first date of knowledge of
court", [*1411] intentionally misled the court in club membership, this might have assisted the district
violation of the Rules of Professional Conduct, and judge in determining [**18] recusal in the third case, for
otherwise committed "ill practices". In light of the which judgment had not been entered. Accordingly, we
unrestrained accusations and innuendos we have seen in will not separate the timeliness issue for the first two
these actions, these charges simply reinforce the cases from the third. To do so would simply reward the
perception of the reckless attacks in which the Liljebergs Liljebergs for waiting on the result in the third case
and their counsel have engaged. before seeking recusal in the first two. 12
With those post-judgment motions, the Liljebergs
12 While these appeals were pending, the
dragged out the third case until the end of September.
Liljebergs moved, in the alternative, to remand to
While the motions were pending, the Liljebergs failed to
the district court so that additional material could
raise disqualification. Only after [**16] the district court
be added to the record (affidavit of recently
denied the motions at the end of September did the
divorced former son-in-law of Judge Mentz; the
Liljebergs commence their next salvo -- the 60(b)(6)
contemporaneous motion to supplement the
motions. They waited until October 1, 1993 (nearly a
record on appeal was denied when filed.)
year after entry of the judgments in the first two cases),
Obviously, in light of our holding that the 60(b)
before filing their motions in the first two cases; 10 in the
(6) motions were untimely, the motion to remand
third, they waited yet another month. 11
is DENIED.
10 The original judgment in the Partnership B.
Litigation was entered on August 18, 1992, and
The 60(b)(6) motions were denied properly for
amended on December 3, 1992; in the LEI
being untimely. In the alternative, even assuming
Litigation, judgment was entered on August 18,
arguendo a § 455 violation, the denial of the motions
1992.
was not an abuse of discretion. 13
11 The judgment in the SJH Litigation was
entered on July 30, 1993. The 60(b)(6) motion
13 We emphasize that, for purposes of this
was filed on November 2, 1993.
section, in order to determine whether there was
Obviously, the delay in the third case cannot be an abuse of discretion in denying the 60(b)(6)
countenanced. As of the alleged first date of knowledge motions, a § 455 violation is only assumed. It
of club membership, the judgment in that case had not should be noted, however, that the Liljebergs do
been entered. (As noted, it was entered one week later.) not cite, nor can we find, any case addressing
As discussed, a party feeling there is a basis for disqualification because of membership in a
disqualification must make that known to the court at the private, social club (as discussed, this is the
earliest possible moment. Moreover, as noted, a § 455(a) classification given the club by the Liljebergs), to
[**17] recusal is self-executing, see note 8, supra; no include when members of a law firm representing
affidavit (or in this case, "opinion poll") is necessary to one of the parties also hold such membership. In
present the claimed basis for disqualification to the court. addition, we are reminded that
Page 7
38 F.3d 1404, *; 1994 U.S. App. LEXIS 32923, **;
30 Fed. R. Serv. 3d (Callaghan) 1529
opinion rendered today, in which we affirmed the Accordingly, for the foregoing reasons, we
district court's imposition of such sanctions AFFIRM the denial of [**26] the Rule 60(b)(6)
against Kenneth C. Fonte in one of the three motions, and impose sanctions.
cases from which these appeals were taken.
AFFIRMED; SANCTIONS IMPOSED
III.