United States District Court, D. Arizona
Honorable Diane J. Humetewa United States District Judge
the Court is Plaintiffs' Motion to Recuse Judge Michael
T. Liburdi Pursuant to 28 U.S.C. § 144 and 28 U.S.C.
§ 455. (Doc. 13). Pursuant to 28 U.S.C. § 144, this
Court was randomly drawn to decide the portion of the Motion
that pertained to 28 U.S.C. § 144. (Doc. 23).
filed their Complaint on September 18, 2019, which was
randomly assigned to United States District Court Judge
Michael T. Liburdi. (Docs. 1, 3). On October 15, 2019,
Defendants filed a Motion to Dismiss (Doc. 8) and a Motion to
Compel Arbitration (Doc. 9), both of which are still pending.
On October 29, 2019, Plaintiffs filed the pending Motion to
Recuse (Doc. 13), which was accompanied by an Affidavit of
Plaintiff Eileen Carr (“Carr Affidavit”). (Doc.
14). Judge Liburdi denied the Motion to Recuse as it
pertained to 28 U.S.C. § 455 (“Section
445”), and pursuant to 28 U.S.C. § 144
(“Section 144”), referred, by random draw, the
remaining recusal issues to this Court. (Docs. 21, 23).
seek recusal of Judge Liburdi under Section 144 and Section
445. Section 144 provides a procedure for a party to recuse a
judge. Section 455 imposes an affirmative duty upon judges to
recuse themselves. Under both statutes, recusal is
appropriate where “a reasonable person with knowledge
of all the facts would conclude that the judge's
impartiality might reasonably be questioned.”
Yagman v. Republic Insurance, 987 F.2d 622, 626 (9th
Cir. 1993); see also United States v. Conforte, 624
F.2d 869, 880 (9th Cir. 1980). This objective inquiry is
concerned with whether there is the appearance of bias, not
whether there is bias in fact. See Preston v. United
States, 923 F.2d 731, 734 (9th Cir. 1992);
Conforte, 624 F.2d at 881.
144 “expressly conditions relief upon the filing of a
timely and legally sufficient affidavit.” United
States v. Sibla, 624 F.2d 864, 867 (9th Cir. 1980). If
the judge to whom the motion is directed finds that the party
has satisfied that procedural requirement, “the motion
must be referred to another judge for a determination on the
merits.” Id. An affidavit filed pursuant to
Section 144 is not legally sufficient unless it specifically
alleges facts that fairly support the contention that the
judge exhibits bias or prejudice directed toward a party that
stems from an extrajudicial source. See United States v.
Azhocar, 581 F.2d 735, 738-40 (9th Cir. 1978). However,
courts must keep in mind that “a judge has ‘as
strong a duty to sit when there is no legitimate reason to
recuse as he does to recuse when the law and facts
require.'” Clemens v. U.S. Dist. Court for
Cent. Dist. of California, 428 F.3d 1175, 1179 (9th Cir.
2005) (quoting Nichols v. Alley, 71 F.3d 347, 351
(10th Cir. 1995)).
Liburdi determined that Plaintiffs had satisfied the
timeliness and procedural requirements of Section 144. (Doc.
21 at 12). Accordingly, this Court must determine the merits
of Plaintiffs' arguments pursuant to Section 144. The
gravamen of Plaintiff's Motion to Recuse is that Judge
Liburdi's impartiality might reasonably be questioned
because he formerly worked for Governor Ducey who has an
alleged relationship with Defendants. Plaintiffs' claims
are wholly unfounded. Judicial impartially is presumed and
Plaintiffs have not presented sufficient evidence to satisfy
their “substantial burden” of showing otherwise.
Hollingsworth v. Diaz, 2019 WL 3064477, at *1 (C.D.
Cal. June 19, 2019); see also First Interstate Bank of
Arizona, N.A. v. Murphy, Weir & Butler, 210 F.3d
983, 987 (9th Cir. 2000).
Motion and the Carr Affidavit are replete with speculation
and conjecture, but noticeably absent are facts and evidence.
For example, Plaintiffs speculate that Judge Liburdi is
“close professionally - and almost certainly personally
- with Defendants and their senior executives” because
he was formally employed by Governor Ducey in a legal
capacity. (Doc. 13 at 2). Yet, Plaintiffs provide no evidence
of a relationship-professional or otherwise-between Judge
Liburdi and Defendants. Rather, Plaintiffs state, without
support, that “Judge Liburdi has been ‘tied at
the hip' with Governor Ducey who, in turn, has been
‘tied at the hip' with Defendants.”
(Id. at 1). Additionally, Plaintiffs list a series
of interactions between Governor Ducey and Defendants.
(Id. at 2-4). Thus, Plaintiffs are asking this Court
to infer that Judge Liburdi must have had a
“close” professional and personal relationship
with Defendants simply because his former employer had or has
one. The Court does not find such inferences reasonable or
warranted. Clemens v. U.S. Dist. Court for Cent. Dist. of
California, 428 F.3d 1175, 1178-79 (9th Cir. 2005)
(finding recusal is not warranted when the party relies on
“[r]umor, speculation, beliefs, conclusions, innuendo,
suspicion, opinion, and similar non-factual matters; . . .
[or] mere familiarity with the defendant(s) . . .”).
Plaintiffs provide that “Judge Liburdi is undoubtedly
very close to, and is also professionally indebted to,
Governor Ducey” and that “[i]t can certainly be
reasonably inferred that Judge Liburdi owes his current
position to the Governor.” (Doc. 13 at 5). The Court
disagrees. Importantly, Governor Ducey is not a named party,
nor is he mentioned anywhere in the Complaint. (Doc. 1).
Aside from citing to Judge Liburdi's former
representation of Governor Ducey during his 2014 campaign for
governor and as general counsel from January 2015 to 2018,
Plaintiffs offer no evidence to support their allegation that
Judge Liburdi is professionally indebted to Governor Ducey,
let alone that he has a close relationship with Governor
Ducey. Moreover, Plaintiffs do not explain how such a
relationship would result in the appearance of partiality in
this matter. Plaintiffs have not established that Judge
Liburdi's former employment with Governor Ducey would
lead “a reasonable person with knowledge of all the
facts would conclude that the judge's impartiality might
reasonably be questioned” in this case.
Yagman, 987 F.2d at 626.
claiming that “they are not alleging any impropriety on
the part of Judge Liburdi;” Plaintiffs imply that Judge
Liburdi is financially motivated to issue rulings that favor
Defendants. Plaintiffs state that “[i]t must also be
noted that, in an uncanny coincidence, Judge Liburdi's
wife is the General Counsel of a for-profit holding company[,
BASIS.ed, ] that operates dozens of charter schools around
the country, including over 20 in the State of
Arizona.” (Doc. 13 at 5). Similarly, the Carr Affidavit
provides that “[s]ince [BASIS.ed] - like Grand Canyon
Education - is a for-profit educational holding company, it
relies almost exclusively on public funds. . . . Thus, it
appears Judge Liburdi's personal finances may benefit
from rulings in Grand Canyon's favor.” (Doc. 14
¶16). Although inflammatory and salacious, these
allegations are also wholly unsupported. Plaintiffs do not
cite a single fact that gives rise to a financial advantage
that Judge Liburdi could have if this case were to be
resolved in favor of Defendants.
in Plaintiffs' Motion for Recusal, nor the Carr Affidavit
demonstrates a reasonable basis for recusal of Judge Liburdi.
“[E]except in the most unusual circumstances . . .
judges [are trusted] to put their personal feelings aside,
[and] recusal must be limited to truly extraordinary cases
where . . . the judge's views have become ‘so
extreme as to display clear inability to render fair
judgment.'” Cobell v. Kempthorne, 455 F.3d
317, 332 (D.C. Cir. 2006) (quoting Liteky v. United
States, 510 U.S. 540, 551 (1994)). As such, “[a]
judge is as much obliged not to recuse himself when it is not
called for as he is obliged to when it is.” In re
Drexel Burnham Lambert Inc., 861 F.2d 1307, 1312 (2d
Cir. 1988) (citing In re Union Leader Corp., 292
F.2d 381, 391 (1st Cir.), cert. denied, 368 U.S. 927
(1961)); Cobell v. Norton, 237 F.Supp.2d 71, 102
(D.D.C. 2003) (“It is, admittedly, a tempting prospect
for the Court to contemplate recusing itself, given the
hundreds of judicial hours that this case has consumed, and
the innumerable antagonisms it has ...