United States District Court, N.D. Georgia, Atlanta Division
PATRICIA G. GUTHRIE, Plaintiff,
WELLS FARGO HOME MORTGAGE NA and their attorney, et al., Defendants.
RICHARD W. STORY, District Judge.
This case comes before the Court on Plaintiff's Formal Letter to Judge Richard W. Story Regarding Plaintiff's Request for Recusal or in the Alternative Motion to Recuse  ("Plaintiff's Motion to Recuse"). After a review of the record, the Court enters the following Order.
Plaintiff Patricia Guthrie, proceeding pro se, initiated this action against Defendants Wells Fargo Home Mortgage, N.A. ("Wells Fargo") and McCalla Raymer, LLC ("McCalla Raymer"), asserting claims arising out of the foreclosure or attempted foreclosure on Plaintiff's property on Lenox Road in Atlanta, Georgia. The facts underlying this cause of action are fully set forth in the Magistrate Judge's Final Order and Report and Recommendation (Dkt. ) and the Court does not fully recite them here.
Plaintiff now moves to recuse the undersigned from the instant action. Plaintiff contends that the undersigned's "business interests... are in direct contention with the Plaintiff 14th amendment right." (Pl.'s Mot. to Recuse, Dkt.  at 2.) Plaintiff also contends that the Court's prior rulings for defendants in this case and similar cases reflects the Court's bias. Defendants oppose Plaintiff's Motion to Recuse.
The propriety of recusal in a federal case is governed by two distinct statutes, 28 U.S.C. § 144 and 28 U.S.C. § 455. Plaintiff identifies both 28 U.S.C. § 144 and 28 U.S.C. § 455 as the statutory bases for her motion,  and the Court will accordingly evaluate the propriety of recusal under both provisions.
A. 28 U.S.C. § 144
Section 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. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.
28 U.S.C. § 144.
Where a litigant submits a sufficient affidavit and certificate, recusal is mandatory; the presiding judge may take no further action in the litigant's case. See United States v. Alabama, 828 F.2d 1532, 1540 (11th Cir. 1987) (holding superseded by statute on other grounds, as recognized by Lussier v. Dugger, 904 F.2d 661, 664 (11th Cir. 1990)). The statute's requirements, however, are strictly enforced. See, e.g., United States v. Sykes, 7 F.3d 1331, 1339 (7th Cir. 1993) ("Because the statute is heavily weighed in favor of recusal, its requirements are to be strictly construed to prevent abuse.") (internal quotations omitted). Moreover, while a court must take as true all of the facts stated in the affidavit ("even when the court knows these allegations to be false"), see United States v. Alabama, 828 F.2d at 1540, the statements at issue must be such "that [they] would convince a reasonable person that bias actually exists." Christo v. Padgett, 223 F.3d 1324, 1333 (11th Cir. 2000). The alleged facts must be "material and stated with particularity" and "show that the bias is personal, as opposed to judicial, in nature." United States v. Alabama, 828 F.2d at 1540. The presiding judge may determine the issue of recusal under § 144. Kante v. Countrywide Home Loans, 430 F.Appx. 844, 849 (11th Cir. 2011) ("Section 144 states only that another judge must take over the case if a party's recusal request is found to be sufficient, not that another judge must determine whether the recusal request is sufficient.").
Here, when analyzed under § 144, Plaintiff's challenge proves unavailing. First, while Plaintiff submits an Affidavit of Bias [87-3], it is unaccompanied by a certificate of counsel stating that it is submitted in good faith. See 28 U.S.C. § 144 (stating that affidavit " shall be accompanied by a certificate of counsel of record stating that it is made in good faith") (emphasis supplied). In light of the mandatory and automatic nature of recusal under the statute, its potential for abuse, and the availability of other statutory mechanisms pursuant to which an unrepresented litigant may seek the recusal of a federal judge, the absence of such a certificate has proven fatal to even the § 144 motions of pro se litigants. See, e.g., Everson v. Liberty Mut. Assur. Co., No. 1:05-CV-2459-RWS, 2008 WL 1766956, at *2 (N.D.Ga. Apr. 14, 2008); Williams v. New York City Hous. Auth., 287 F.Supp.2d 247, 249 (S.D.N.Y. 2003); Heimbecker v. 555 Assocs., No. 01-6140, 2003 WL 21652182, at *4 (E.D. Pa. Mar. 26, 2003) (collecting cases); ...