Predator Int'l, Inc. v. Gamo Outdoor United States, Inc., Civil Action No. 09-cv-00970-PAB-KMT

PREDATOR INTERNATIONAL, INC., a Colorado corporation, Plaintiff, v. GAMO OUTDOOR USA, INC., a Florida corporation, Defendant.

Civil Action No. 09-cv-00970-PAB-KMT

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

August 14, 2014

Judge Philip A. Brimmer

ORDER

This matter comes before me on Claimant John M. Cogswell's Motion to Recuse the Honorable Philip A. Brimmer [Docket No. 588], wherein Mr. Cogswell, an attorney for plaintiff Predator International, Inc. ("Predator"), seeks my recusal pursuant to 28 U.S.C. § 144 and 28 U.S.C. § 455(a).

I. BACKGROUND

Predator filed this case on April 28, 2009, asserting claims for patent infringement, trade dress infringement, slogan infringement, copyright infringement, unjust enrichment, unfair competition, and violation of the Colorado Consumer Protection Act, see Colo. Rev. Stat. § 6-1-101 et seq. Docket No. 1. Mr. Cogswell was one of four attorneys representing Predator.

In the spring of 2010, Predator voluntarily moved to dismiss its patent infringement claims, stating that it could not "prove that it had standing to pursue these claims without a written assignment" from the patent's co-inventor. Docket Nos. 113and 142 at 2. Predator subsequently commenced a state court action to determine ownership of the patent at issue. See Docket No. 266 at 4; Docket No. 268 at 8, ¶ 9. On July 11, 2011, over a year and a half after the deadline to amend the pleadings in this case had passed, see Docket No. 59 at 7, Predator moved for leave to file a supplemental complaint. Docket No. 227. Specifically, Predator sought leave to assert a claim for declaratory judgment of patent ownership and to reassert its claim for patent infringement. Id. On July 28, 2011, Gamo sent a letter to Predator's counsel expressing Gamo's belief that the motion to amend violated Federal Rule of Civil Procedure 11 and requesting that Predator withdraw its motion. Docket No. 266-1. Predator declined to do so. On March 26, 2012, the Court accepted the magistrate judge's recommendation denying Predator leave to amend for failure to provide a valid explanation for its delay in making this request. Docket No. 290.

On December 22, 2011, Gamo filed a motion for sanctions. Docket No. 266. On January 17, 2014, the Court granted this motion in part. Docket No. 439. The Court found that

Predator's attempt in July 2011 to supplement its complaint by (1) adding a claim for declaratory judgment of ownership of the '893 Patent and (2) reasserting its patent infringement claim was not "warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law." See Fed. R. Civ. P. 11(b)(2). Rather, it appears to have been an attempt, in light of adverse rulings in the state court, to litigate these claims in a more favorable forum, resulting in the expenditure of significant time and resources on the part of Gamo and the Court. This type of forum shopping constitutes an improper purpose under Rule 11 and thus Predator's conduct is subject to sanction.

Docket No. 439 at 12 (citing Bolivar v. Pocklington, 975 F.2d 28, 32 (1st Cir. 1992) and Fransen v. Terps Ltd. Liability Co., 153 F.R.D. 655, 660 (D. Colo. 1994)). Accordingly,the Court awarded $10,000 in sanctions against Mr. Cogswell pursuant to Rule 11(b). Id. at 18-19.

On February 3, 2014, the Court held a trial preparation conference. Docket No. 544. The trial was set for February 18, 2014. Docket No. 403. At the trial preparation conference, Mr. Cogswell indicated that his wife was ill and requested that the Court vacate the trial. Docket No. 544. The Court granted Mr. Cogswell's request. Id. The trial was reset for August 19, 2014. Docket No. 548.

On June 10, 2014, the parties filed a joint motion to withdraw Gamo's motion for sanctions and vacate the sanctions order. Docket No. 578. The parties stated that, pursuant to their May 27, 2014 settlement agreement, "the parties agreed to withdraw any Rule 11 motions and request that the Court withdraw any orders issued concerning Rule 11 motions." Id. at 1. The motion stated that it was "in the best interests of the parties and this Court based on the joint concurrence of the parties and the efficient administration of justice that the Court grant this motion to vacate its Order dated January 17, 2014." Id.

On June 16, 2014, the Court denied the parties' motion to vacate the sanctions order. Docket No. 579. The Court held that the parties' motion had not set forth any basis for vacating a properly issued order. Id. at 2. The Court further held that granting the parties' request would contravene the interest in maintaining the public nature of court proceedings. Id.

On June 25, 2014, the parties renewed their request to vacate the sanctions order. Docket No. 582. They stated that vacating the sanctions order was a "part ofthe confidential settlement agreement." Id. at 1-2. They further stated that "they had no intent that any of the papers relating to the sanctions order be sealed and, as such, all filings related thereto from the beginning to the end of the case would continue to be available for public view." Id. at 2.

The Court denied the parties' motion. Docket No. 584. The Court found that the settlement agreement was not conditioned on the Court vacating the sanctions order, but rather on the parties' agreement to request such relief from the Court, a provision with which both parties complied. Id. at 2. The Court, finding "no proper or persuasive reason" to vacate the sanctions order, once again declined to do so. Id. at 2-3.

On July 3, 2014, the parties jointly moved to dismiss the case. Docket No. 585. The same day, the Court dismissed the case with prejudice pursuant to Federal Rule of Civil Procedure 41(a). Docket No. 586. On July 29, 2014, Mr. Cogswell filed the instant motion to recuse. Docket No. 588.

II. ANALYSIS

A. Duty to Confer

The Local Rules provide that, "[b]efore filing a motion, counsel for the moving party or an unrepresented party shall confer or make reasonable good faith efforts to confer with any opposing counsel or unrepresented party to resolve any disputed matter." D.C.COLO.LCivR 7.1(a). Local Rule 7.1(a) further requires the moving party to "describe in the motion, or in a certificate attached to the motion, the specific efforts to fulfill this duty." Id. The rule exempts parties from conferring on motions filed in a case involving a pro se prisoner, motions filed pursuant to Federal Rules of CivilProcedure 12 and 56, and motions filed pursuant to D.C.COLO.LAttyR 5(b). Id. at 7.1(b). There is no exemption in Local Rule 7.1(a) for motions for recusal.

The second sentence of Mr. Cogswell's motion states that "[n]o certification is necessary since there are no other parties who have any interest in the outcome of this motion except claimant Cogswell and the Court." Docket No. 588 at 1. It is unclear what "certification" Mr. Cogswell refers to, whether the certification referred to in Local Rule 7.1(a) or the certification of counsel referred to in 28 U.S.C. § 144.¹ In any event, Mr. Cogswell did not file a certification of conferral pursuant to Local Rule 7.1(a). His violation of Local Rule 7.1(a) constitutes an independent basis to deny Mr. Cogswell's motion.

B. 28 U.S.C. § 144

Section 144 of Title 28 of the United States Code provides that, when a party "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 procedural requirements of this provision are strictly construed. United States v. Hines, 696 F.2d 722, 729 (10th Cir. 1982).

I find that Mr. Cogswell's motion is procedurally defective under § 144. First, the motion for recusal is filed, not by a "party" as required by the statute, but by one of plaintiff's attorneys. As stated in Cintron v. Union Pacific Railroad Co., 813 F.2d 917, 921 (9th Cir.1987), "[p]ersonal bias, to require recusal or remand to a different judge,must be against the party, not against the attorney for the party." See United States v. Burt, 765 F.2d 1364, 1368 (9th Cir.1985); see also Hinman v. Rogers, 831 F.2d 937, 938 (10th Cir. 1987) ("an affidavit of bias and prejudice must be . . . made by a party"). Although Mr. Cogswell claims that my alleged bias against him prejudiced his client, his motion is based on alleged bias against him. See Docket No. 588 at 1 ("Claimant Cogswell's motion to recuse is based upon the fact that Judge Brimmer has a personal bias or prejudice against him which has generated adverse action against Predator. . . ."); see also id. at 3 ("All of the bias of the Court was directed at Cogswell. . . ."). Moreover, the relief Mr. Cogswell seeks is personal. See Docket No. 588-1 at 4 ("All I want is an order withdrawing the motion for sanctions and vacating the sanction order and this case will be completely over."). Such allegations of bias against an attorney, filed by an attorney, are procedurally deficient.

Second, the motion is procedurally deficient because the affidavit in support of the motion was made by Mr. Cogswell as opposed to a party to the case. An affidavit completed by a party's attorney as opposed to by the party is insufficient. Roberts v. Bailar, 625 F.2d 125, 128 (6th Cir. 1980); see also Glass v. Pfeffer, 849 F.2d 1261, 1267 (10th Cir. 1988) (affidavit filed pursuant to § 144 must be "made by a party"); Pomeroy v. Merritt Plaza Nursing Home, Inc., 760 F.2d 654, 658-59 (5th Cir. 1985) ("A court may not grant relief under § 144 if a party's counsel instead of the party executes an affidavit alleging personal bias or prejudice."); Sataki v. Broadcasting Bd. of Governors, 733 F. Supp. 2d 54, 59 (D.D.C. 2010) (courts have "overwhelmingly held that the plain language of § 144 requires the affidavit to be executed by a party to the...