                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-1-2007

In Re: Robert Shimer
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1025




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                                                                            CLD-102
                                                                   NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                       No. 07-1025
                                      _____________

                              IN RE: ROBERT W. SHIMER,
                                               Petitioner
                                _____________________

                      On Petition for Writ of Mandamus from the
                United States District Court for the District of New Jersey
                       (Related to D.N.J. Civil No. 04-cv-01512)
                              ________________________

                        Submitted Under Rule 21, Fed. R. App. P.
                                   January 19, 2007

               Before: RENDELL, SMITH and JORDAN, Circuit Judges

                                 (Filed February 1, 2007)
                                  ___________________

                               OPINION OF THE COURT
                                ___________________

PER CURIAM

       Petitioner Robert W. Shimer, an attorney proceeding pro se, seeks a writ of

mandamus compelling a district judge to disqualify himself and vacating certain of the

District Court’s orders. For the reasons that follow, we will deny the petition.1

                                             I.


  1
        Shimer has moved to supplement his petition, and we grant that motion. Vincent J.
Firth, one of Shimer’s co-defendants in the District Court, has moved to join in Shimer’s
petition. Because we are denying the petition, we deny Firth’s motion as well.
       Shimer is a defendant in a civil action currently pending before the Honorable

Robert B. Kugler. That action was brought by the Commodity Futures Trading

Commission (“CFTC”) and involves an alleged “multi-million dollar commodity futures

fraud” in which the CFTC alleges that Shimer participated. (Am. Compl. ¶¶ 2, 6.)

       Shimer twice moved for summary judgment on the CFTC’s claims, and the CFTC

in turn moved for summary judgment on certain of those claims. Judge Kugler denied

both of Shimer’s motions and granted the CFTC’s motion in part. Shimer then moved to

disqualify Judge Kugler and, while that motion was pending, filed the instant petition.

Judge Kugler has since denied the disqualification motion.

                                             II.

                                   A.    Disqualification

       Shimer requests that we order this case reassigned to a different district judge,

either because Judge Kugler’s disqualification is required by 28 U.S.C. § 455(a) or

through exercise of our supervisory authority. Although this issue comes before us on a

petition for a writ of mandamus, we review Judge Kugler’s denial of the disqualification

motion for abuse of discretion, which we will find only if Judge Kugler has a “clear and

indisputable” obligation to disqualify himself. See In re Kensington Int’l Ltd., 368 F.3d

289, 300-01 (3d Cir. 2004).

       We agree with Judge Kugler that he had no such obligation here. Section 455(a)

requires judges to disqualify themselves when their “impartiality might reasonably be

questioned.” Shimer does not rely on any extra-judicial partiality (i.e., one arising from

                                             2
something other than events occurring during judicial proceedings).2 See Liteky v.

United States, 510 U.S. 540, 555 (1994). Instead, Shimer argues that certain of Judge

Kugler’s rulings and remarks call his impartiality into question. Shimer must show that

those rulings and remarks “display a deep-seated favoritism or antagonism that would

make fair judgment impossible.” Id.

       Shimer devotes the majority of his petition to arguing merely that Judge Kugler’s

summary judgment rulings might reflect partiality because they are legally erroneous.

But “judicial rulings alone almost never constitute a valid basis for a bias or partiality

motion” and “only in the rarest circumstances evidence the degree of favoritism or

antagonism required” for disqualification. Id. at 555. We express no opinion on the

merits of Judge Kugler’s rulings, but we detect no such favoritism or antagonism here.

As we have explained, “[d]isqualification is not an appropriate remedy for disagreement

over a legal ruling. In the event [Judge Kugler’s] rulings may be in error, they are subject

to review on appeal.” In re TMI Litig., 193 F.3d 613, 728-29 (3d Cir. 1999).

       Shimer also relies on the following circumstances. In his opinion denying

Shimer’s first motion for summary judgment, Judge Kugler notes that “[d]efendants

spend over 170 pages of briefing belaboring [a legal issue] in what can only be

characterized as an abuse of the judicial process” and that Shimer’s own 92-page brief


  2
       Shimer alleges that Judge Kugler “may harbor” a prejudice “against pro se
defendants generally” or “may simply assume” the accuracy of a federal agency’s
assertions, but these facially speculative allegations do not form the basis of his petition.
(Mandamus Pet. at 2) (emphasis added).

                                              3
(which the judge nevertheless allowed) exceeded the local page limitation. (Oct. 4, 2005

Op. at 4 n.2.) Judge Kugler later allowed the CFTC to file a brief in excess of the page

limitation but denied Shimer’s request to exceed the page limitation in his opposing brief.

       These circumstances do not evidence the kind of “deep-seated favoritism or

antagonism” necessary to require Judge Kugler’s disqualification. Judge Kugler’s

isolated remark about defendants’ excessive briefing does not reflect any partiality. See

Liteky, 510 U.S. at 555 (“[J]udicial remarks . . . that are critical or disapproving of, or

even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or

partiality challenge.”); In re TMI Litig., 193 F.3d at 728-29 (allegedly “hostile rebukes of

counsel by the court” held insufficient to require disqualification). Nor are we persuaded

that Judge Kugler’s refusal to allow Shimer to once again exceed a page limitation

reflects any partiality. Thus, Judge Kugler’s refusal to disqualify himself was not an

abuse of discretion, and we will not exercise our supervisory authority to order the

reassignment of this case to a different district judge.

                                  B.    Vacation of Orders

       Shimer also requests that, whether or not we order this case reassigned to a

different district judge, we vacate certain of Judge Kugler’s summary judgment orders

and remand those matters for reconsideration. Shimer further requests that we vacate,

pending such reconsideration, an order requiring him to produce certain tax returns

because it is dependant on his status as a defendant.

       We decline to do so. Mandamus is “an extraordinary remedy” that we have

                                               4
discretion to award only when, among other things, a petitioner has “no other adequate

means to attain the relief sought.” In re Pressman-Gutman Co., 459 F.3d 383, 398-99 (3d

Cir. 2006) (citation omitted). Even if Judge Kugler’s rulings were legally erroneous,

which we do not decide, Shimer has not alleged any reason why an appeal in the ordinary

course would be inadequate to correct those errors or otherwise protect his rights. See

Commc’n Workers v. Am. Tel. & Tel. Co., 932 F.2d 199, 210, 213 (3d Cir. 1991)

(denying mandamus petition premised on denial of summary judgment because appeal

represented adequate remedy).3




  3
       Shimer argues that Judge Kugler’s denial of his summary judgment motions
denied him the right to be “effectively heard” and that Communication Workers is
inapposite because Judge Kugler’s grant of partial summary judgment in favor of the
CFTC means that Shimer cannot proceed to trial on those claims. Once again, however,
Shimer has not alleged anything that cannot be redressed, if warranted, by an appeal in
the ordinary course.

                                            5
