IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JANET BATCHELOR, )
) C.A. No. K17C-11-001 NEP
Plaintiff, ) In and for Kent County
)
V. )
)
ALEXIS PROPERTIES LLC, et al.,  )
)
Defendants. )

ORDER

Before this Court is Janet Batchelor’s (“Plaintiff’) Motion to Recuse this
Commissioner and Judge Primos from presiding over any further matters in this
lawsuit. Plaintiff, who is self-represented contends that we have “deliberately
violated [her] personal liberties and have wantonly refused to provide due process
and equal protection to [her] and have behaved in a manner inconsistent with that
which is needed for full, fair, impartial hearings.”' The Plaintiff contends that I
failed to provide reasonable accommodation for her hearing impairment and violated
various and sundry provisions of the American with Disabilities Act (‘ADA”) on
several occasions. She also claims that the nature of the Court’s interaction with her
demonstrate the Court’s personal bias and prejudice towards her and require the
removal of myself from this case. Defendants John Welcome (hereinafter
“Welcome”), Alexis Properties (hereinafter “Alexis”), Liveinde.com, Inc. d/b/a
Welcome Home Realty (hereinafter “Liveinde.com’), and BB Properties of Delaware,

LLC (hereinafter “BB Properties” and collectively with Welcome, Alexis and

 

' Batchelor v, Alexis Properties LLC, et al., Del. Super., C.A. No. K17C-11-001 NEP, DI
177, p. 1.
Batchelor v. Alexis Properties LLC, et al.
C.A. No. K17C-11-001 NEP
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Liveinde.com, “Defendants”) have filed a response against Plaintiff under Superior
Court Civil Rule 11, alleging, inter alia, that Plaintiffhas filed a meritless motion and
is in contempt of the Court.

This Order will address Plaintiffs claims involving myself, which include the
allegations stemming from the March 14, 2019 oral arguments on several discovery
motions. This Order will not address Plaintiffs assertions that do not involve any
specific judicial office but instead deal with (1) Plaintiff's interactions with the Court
regarding provision of services relating to her hearing impairment, (2) Plaintiff's
request that this matter be transferred to a judge of this Court sitting in New Castle
county, Delaware, due to her belief that she “cannot receive fair hearing or trial in
Superior Court Kent County, Delaware,” and (3) Defendants’ request for sanctions.
The Court refers the parties to Judge Primos’s separate order filed on this date as to
Plaintiff's claims not involving myself specifically. Since the Plaintiffs claim of
prejudice or bias on the part of this Commissioner is wholly unfounded and
unsupported, the Motion to Recuse is hereby DENIED.

I, FACTUAL AND PROCEDURAL BACKGROUND

On May 4, 2016, Plaintiff signed a rental agreement leasing certain property
owned by Defendant BB Properties for the term of June 1, 2016, to May 31, 2017.
Allegedly, Defendants later committed breaches of the rental agreement that caused
Plaintiff damages and forced her to vacate the property. Thereafter, Defendants
threatened legal action and then filed a summary possession complaint and a debt
action. Plaintiff subsequently filed suit, alleging breach of contract, breach of the

covenant of good faith, and malicious prosecution.

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covenant of good faith, and malicious prosecution.

On February 23, 2018, this Court denied a motion to dismiss filed by
Defendants Welcome and Alexis. On August 30, 2018, Plaintiff was granted leave to
file an amended complaint, which was subsequently filed on September 11, 2018.
Defendants filed a motion to dismiss on October 11, 2018, which was granted in part
and denied in part on November 13, 2018.

On March 14, 2019, a hearing was held before me regarding various discovery
related motions as well as a motion filed by Plaintiff requesting leave to file a second
amended complaint. In connection with my rulings issued at the close of the hearing,
I granted a limited extension of the discovery period.’

If. PLAINTIFF’S ALLEGATIONS

In her motion, Plaintiff takes exception to the Court’s handling of her hearing
disability and comments she alleges I made during the March 14, 2019 hearing which
she claims “clearly” indicate bias against her on the basis of her disability. She offers
no evidence of bias on my part against her in any way.

Plaintiff's allegations against me can be summarized as follows:

1. The Court failed to provide Plaintiff with sufficient
accommodation for her hearing disability at several court
proceedings because the wireless head set the Court

 

* Pursuant to the scheduling order dated July 11, 2018, the discovery period ended on
March 6, 2019. (Docket Item #92). Following the March 14, 2019, hearing, I extended discovery
until May 15, 2019, but only “as to those matters currently before the Court.” (Docket Item
#165).

* Plaintiff makes several [other] allegations concerning the Court as a whole and
concerning Judge Primos. Judge Primos will address those allegations.

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routinely used malfunctioned at points during the
proceedings.

2. That Court was already in session when she arrived a
half hour early for the hearings on March 14, 2019.

3. That I made statements during the March 14, 2019
hearing that “clearly” indicated bias on my part.

4. That I denied her the opportunity to be heard on March
14, 2019.
Il. DISCUSSION
Every litigant is entitled to a fair and impartial forum before the trier of fact,
who is to make a decision based on the evidence put before it. To protect that right,
federal and state statutes and the common law provide that a judge may disqualify
himself or be disqualified.* However, it is just as important to “safeguard the judiciary
from frivolous attacks upon its dignity and integrity.”° In fact, a judge has as much
obligation not to recuse himself when there is no reason as he does to recuse himself
when there is reason.° In balancing these concerns, many federal and state courts
have outlined the requirements a petitioner must meet in order to establish sufficient

ground for recusal.

 

* See, e.g., 28 U.S.C. § 455; Los v. Los, 595 A.2d 381 (Del. 1991).
> United States v. Valenti, 120 F.Supp. 80, 83 (D.C.N.J.1954).
° United States v. Bray, 546 F.2d 851 (10th Cir.1976).

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A judge is presumed to be impartial.’ In order to justify the trier of fact
disqualifying him or herself from deciding the case on the basis of bias or prejudice,
the following must be shown. First, the bias or prejudice must be against a party, not
to any views relating to the subject matter involved.® Secondly, the bias must be a
personal one, not judicial. A mere allegation of “judicial bias” is not a sufficient
ground for recusal.’ Any bias developed during the trial is judicial bias, and is not
personal bias.’” To be sufficient for a judge to be disqualified from a case, that bias
must also “stem from an extrajudical source and result in an opinion on the merits on
some basis other than what the judge learned from his participation in the case.”
Additionally, the alleged bias of a judge must be of such a degree as to interfere with
the assurance that the litigants are afforded a fair and impartial trial.’

Judicial impartiality “is a fundamental principle of the administration of

justice.” '? To that end, well-settled Delaware law requires a judicial officer to recuse

 

” United States v. Hall, 424 F.Supp. 508, aff'd 536 F.2d 313, cert. denied 429 U.S. 919,
97 S.Ct. 313, 50 L.Ed.2d 285 (1976).

* See generally, 54 A.L.R. 5" 575.

9 Id.

'° Hall, 424 F.Supp. at 534.

"' United States v. Grinnell Corp., 384 U.S. 563, D.C.Ct.App., 393 A2d 132 (1978).

'* Bumpus v. Uniroyal Tire Co. Div. of Uniroyal, Inc., 385 F.Supp. 711 (E.D.Pa.1974).

"? Los v. Los, 595 A.2d 381, 383, (Del 1991).

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herself if “there is a reasonable basis to question her impartiality.”'* The Delaware
Judges' Code of Judicial Conduct sets forth a non-exhaustive list of situations where
a judge “should” disqualify himself or herself, including where “[t]he judge has a
personal bias or prejudice concerning a party, or personal knowledge of disputed
evidentiary facts concerning the proceeding.” '* The Delaware Supreme Court has
held that alleged personal bias or prejudice against the party seeking recusal is not a

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basis for per se or automatic disqualification.’ Disqualification is only required

where the alleged bias or prejudice of the judge stems from “an extrajudicial source
and result[s] in an opinion on the merits on some basis other than what the judge
learned from his participation in the case.”"’

The Delaware Supreme Court has established the following two-part test for

determining whether a judge should recuse himself or herself where a party has

alleged personal bias or prejudice under Rule 2.11(A)(1):

First, the judge must, as a matter of subjective belief, be
satisfied that she or he can proceed to hear the cause free of
bias or prejudice concerning the party. Second, even if the
judge believes that she or he has no bias, situations may
arise where, actual bias aside, there is the appearance of bias

 

'* Edelstein v. Goldstein, 2011 WL 2791270, *3 (Del.Super.Jul.13, 2011).

'> Delaware Judges’ Code of Judicial Conduct Rule 2.11 (a)(1)(2008.
'® Los, 595 A.2d at 384.

"7 Id. (quoting United States v. Grinnell Corp. 384 U.S. 563, 583 (1966)) (internal
quotation marks omitted).
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sufficient to cast doubt as to the judge's impartiality.’

In the Los case, applying the above test, the Delaware Supreme Court found
that a Family Court judge had acted properly in declining to recuse himself from a
contentious divorce proceeding even though one of the parties had named him, as
well as his ex-wife, her attorney, and the Attorney General of Delaware, as defendants
in a lawsuit in the United States District Court for the District of Delaware. The
Supreme Court held that the Family Court judge's refusal to recuse himself was
supported “by his subjective belief that he could be impartial and there was no
requirement that he disqualify himself where he was sued in his judicial capacity in
an action instituted during the course of the proceedings before him .”"”

(A) Subjective Analysis

Under the first prong of the Los test, | can unequivocally state that | have no
feelings of bias, prejudice or ill will against the Plaintiff personally, and that nothing
the Plaintiff has done during the course of the litigation gives rise to any such
feelings. I have never met the Plaintiff except during Court proceedings, and have
no reason to harbor personal animosity towards her. The Plaintiff alleges, in
conclusory fashion, that because there were technical difficulties with the initial
hearing amplification devices used by the Court and because of statements 1 made

during the March 14, 2019 proceeding I am biased against her on the basis of her

disability. However, the Plaintiff provides no evidence of personal animus on my

 

'§ Los, 595 A.2d at 384-85.

Los, at 385.
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part. Since | am persuaded that I can hear this matter without any bias or prejudice
against the Plaintiff, the first prong of the Los test is satisfied.
(2) Objective Analysis

Under the second prong of the recusal inquiry under Los, I cannot find an
objective appearance of bias that would require my recusal from the case. I have not
taken any actions with respect to the Plaintiff in this litigation, nor made any other
decisions in this matter, that could create an appearance of bias or cast doubt on my
impartiality. As no reasonable observer could conclude that I am biased against
Plaintiff, the second part of the Los analysis also does not require disqualification.
The Delaware Supreme Court has held that “the mere fact that a Judge has made some
pretrial rulings against a given defendant is not in itself sufficient to require his

°° Furthermore, the Supreme Court recognized that “judicial

disqualification.
remarks during the course ofa trial 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.”*'

The Delaware Supreme Court addressed similar issues to those raised by the

 

°° Gattis v. State, 955 A.2d 1276, 1284 (Del.2008), see also Stiegler v. State, 277 A.2d
662, 668 (Del.1971); accord Weber v. State, 547 A.2d 948, 952 (Del.1988) (“[T]he bias
envisioned by [the Delaware Code of Judicial Conduct] is not created merely because the trial
judge has learned facts or made adverse rulings during the course of a trial.””); Jackson v. State,
684 A.2d 745, 753 (Del.1996) (“To require a judge to disqualify himself or herself from further
participation in a case where the judge acts as a gatekeeper for the admissibility of evidence
would impose an unreasonable and totally impracticable standard.”’). The Court notes that the
motion for recusal in the Gattis case concerned this Judge.

*! Gattis, 955 A.2d at 1284 (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)).

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present motion in Gattis v. State, in which a defendant convicted of first-degree
murder and sentenced to death sought the recusal of this Judge based in part upon the
Court's denial of motions for the extension of time and of the page limitations for a
postconviction motion brief. The defendant in Gattis argued that he was harmed by
the Judge's bias against his defense attorney.*” The Delaware Supreme Court rejected
the defendant's argument and affirmed the Judge's decision not to recuse themself,

declaring:

Judicial rulings alone, such as the denial of a motion to
recuse or disqualify or of a request to increase the time
limitation on the briefing schedule or the length of the
briefs, are insufficient bases for a recusal. To an objective
observer, these particular rulings would carry little
weight.”*

The same reasoning applies to the present motion for recusal. The Plaintiffs
motion rests upon mere allegations of bias without any supporting evidence. To an
objective observer, none of these grounds would give the impression of personal
prejudice or bias on my part against her.

I will briefly address each of Plaintiffs allegations.

1. The Court failed to provide her with sufficient
accommodation for her hearing disability at several court
proceedings because the wireless head set the Court
routinely used malfunctioned at points during the
proceedings.

 

* Id, at 1285.

3 Gattis at 1285.
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The fact that the initial headset provided to Plaintiff malfunctioned on several
occasions does not provide any evidence that I personally am biased against Plaintiff.
Indeed on each occasion in which she was before me for oral argument when the
headset malfunctioned the Court staff provided her with a new headset. After being
given the replacement argument proceeded without further complaint by the Plaintiff.
Had I been made aware that the Plaintiff could not proceed, I would have stopped the
proceeding and recessed until an alternative headset could be provided. I can state
that at no time did it appear to me that Plaintiff was unable to participate fully in the
proceedings. She answered all questions from me and presented her argument
coherently. I note that once Plaintiff formally requested the Computer Aided Real
Time Reporting (“CART”) Services the Court proceeded to arrange for those
services to be available at the next scheduled proceeding which occurred on March
14, 2019.

2. That Court was already in session when she arrived a
half hour early for the hearings on March 14, 2019.

Due to the number of motions in this case that were scheduled to be heard on
March 14, 2019 I wanted to assure that there was sufficient time for Plaintiff to make
her arguments. Being unfamiliar with CART services neither I nor our Court staff
knew if the use of the CART would lengthen the proceedings. For this reason |
moved the motions that had been scheduled for March 14" in separate cases unrelated
to Plaintiff to 1:30 p.m. I also asked one of the other judicial officers to cover my
2:30 p.m. capias returns so that I would not have to take a recess at that time. We

made all these changes to the schedule so that Plaintiff's case would have the Court’s

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full attention starting at the regular civil motion time at 2:00 p.m. I did not want to
have to rush the parties through the five or six motions in this matter that were
scheduled that afternoon. Plaintiff's complaint that when she arrived before the start
time and that Court was already in session is meritless since the start time of the other
unrelated motions only were moved up so Plaintiff's case could have my full attention
as an accommodation due to the CART system and the large number of motions
scheduled.

3. That I made statements during the March 14, 2019
hearing that “clearly” indicated bias on my part.

Plaintiff complains that statements I made at the March 14" hearing indicated
bias I note that she is citing from an unofficial transcript of the proceeding. I also
point out that she has taken the comments out of context. I have not reviewed the
official transcript but I did review an unofficial transcript to refresh my recollection
of the hearing. After doing so and reviewing Plaintiffs motion to recuse I recall that
the portion of the proceeding Plaintiff cites to covered whether or not the defense
would be required, under the ADA, to pay for the cost of the CART services at a
deposition of the Plaintiff. Not being familiar with the intricacies of the ADA I
merely noted that the parties would have to review the appropriate portion of the
ADA to see if the defense would need to pay. I was also attempting to get the parties
to come to a mutual agreement without the need for Court intervention. Additionally,
there had been discussions earlier in the proceeding that afternoon concerning
possible settlement negotiation and I encouraged that. Nothing in my comments was

intended to disparage Plaintiff nor did I have any bias towards her due to her

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disability. I treated her the same as I would have any other litigant before me.

4, That I denied her the opportunity to be heard on March
14, 2019.

Next Plaintiff claims that she was denied the opportunity to be heard in
opposition to the Defendant’s motion(s) on March 14, 2019. She cites to no example
of that. My recollection of the proceedings is that she made numerous arguments and
was never told she could not respond. It is my practice to allow each party to state
their positions and reply to the opposition, giving the parties multiple back and forth
opportunities to comment before making my final ruling. Without knowing what she
is talking about specifically I am at a loss to respond other than to note my
recollection and common practice.

From the standpoint of the objective observer, the Court’s comments on the
ADA or to encourage the parties to work together to resolve disputes would likely
carry little significance. Furthermore, an objective observer could readily conclude
that the Court’s efforts to accommodate the Plaintiffs hearing disability was fair and
impartial. As such, | conclude that there is no objective basis for a finding of
improper bias in this litigation.

As the Supreme Court suggested in the Los case, there is a compelling policy
reason for a judge not to disqualify herself at the behest of a party who claims an
appearance of prejudice, without a factual or reasonable objective basis to do so. In

the absence of genuine bias, a litigant should not be permitted to “shop” for a judge

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of his or her choosing.” If this defendant seriously believes that any judge would
have handled her case differently or provided her with the accommodations that she
has requested, she will be hard-pressed to find such an individual. Furthermore, if
unfavorable rulings were a basis for recusal, as claimed here, then virtually every
litigant in this Court could request a new judge every time they were displeased with
a ruling. In short, the orderly administration of justice cannot be subject to a party's
self-created, unsupported claims of prejudice or the appearance of bias.
CONCLUSION

Applying the two-part Los analysis, I can find no reason for recusal in this case.
I am absolutely convinced that I can continue to hear the proceedings in this case
without bias or prejudice against the Plaintiff. Moreover, I am satisfied that there is
no basis from which a reasonable observer could conclude that I am biased or
prejudiced against the Plaintiff. For all of the foregoing reasons, the Plaintiff's
Motion to Recuse is therefore DENIED.

IT IS SO ORDERED this 8" day of May 2019.

/s/ Andrea M_ Freud
Commissioner

AMEF/dsc
Via File & ServeXpress and U.S. Mail
oc: Prothonotary

 

* Los, 595 A.2d at 385.

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