                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-7-2004

Cooney v. Booth
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2652




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Recommended Citation
"Cooney v. Booth" (2004). 2004 Decisions. Paper 340.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/340


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                                                        NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT


                              No. 03-2652
                           ________________

              ELEANOR M. COONEY, As Executrix of the
                Estate of Daniel T. Cooney, Jr., Deceased;
             ELEANOR M. COONEY; ELEANOR SCHIANO;
         HELEN E. COONEY MUELLER; DANIEL T. COONEY, III;
                  ROBERT COONEY INDIVIDUALLY,

                                         Appellants

                                    v.

            ROBERT E. BOOTH, JR.; ARTHUR R. BARTOLOZZI;
    DAVID MCHUGH, (FICTITIOUS FIRST NAME); DAVID G. NAZARIAN;
JOHN DOE, (FICTITIOUS NAM E); BOOTH, BARTOLOZZI, PENN ORTHOPEDICS;
               MARK MANTELL; RECOVERY ROOM STAFF;
           JANE DOE, JOHN ROE, ET AL, (FICTITIOUS NAMES);
 GRADUATE HOSPITAL, (FORMERLY ALLEGHENY GRADUATE HOSPITAL);
   PENNSYLVANIA HOSPITAL; ROBERT E. BOOTH, JR.; MARK MANTELL,
                            PERSONALLY;
 BOOTH, BARTOLOZZI, BALDERSON, PENN ORTHOPEDICS, CORPORATION;
                           DENNIS MCHUGH
                   ________________________________

              On Appeal From the United States District Court
                  For the Eastern District of Pennsylvania
                        (D.C. Civ. No. 00-cv-01124)
              District Judge: Honorable Eduardo C. Robreno
              _______________________________________

                Submitted Under Third Circuit LAR 34.1(a)
                            March 22, 2004

        Before: ROTH, AMBRO AND CHERTOFF, CIRCUIT JUDGES
                                 (Filed: September 7, 2004)


                                       OPINION
                                _______________________


ROTH, Circuit Judge

       Appellants appeal from the January 31, 2003, order of the District Court denying

their Rule 60 (b) motion, the May 13, 2003, order denying their recusal motion, and the

June 5, 2003, order denying their motion to reconsider the January 31, 2003, order. For

the reasons that follow, we will affirm.

       The background and factual allegations underlying this cause of action are well

known by the parties and need not be detailed here. Briefly, appellants’ decedent, Daniel

T. Cooney, Jr., consented to have Dr. Robert Booth perform knee replacement surgery.

Dr. Arthur Bartolozzi assisted Dr. Booth. After the surgery, Cooney’s foot became

discolored and no pulses were palpable. Corrective vascular surgery was performed.

Cooney died as a result of secondary complications from the vascular surgery.

       Cooney’s estate and individual family members (appellants in this case) filed suit

against the doctors involved and a number of other medical personnel and entities. On

March 8, 2001, the District Court granted summary judgment in favor of Dr. Bartolozzi. 1

Appellants then voluntarily dismissed all remaining defendants except Dr. Booth. On




        1
            The same order also granted summary judgment in favor of defendant Nazarian.

                                             2
March 22, 2001, a jury returned a verdict in favor of Dr. Booth. We affirmed.

       In June 2002, appellants filed a Rule 60 (b) motion to set aside the order granting

summary judgment in favor of Dr. Bartolozzi and the jury verdict in favor of Dr. Booth.

In the motion, appellants asserted that the judgments should be set side because Dr. Booth

and Dr. Bartolozzi committed fraud upon the court. The basis for the assertion of fraud

was, inter alia, that appellants recently discovered that Dr. Booth’s trial testimony

conflicted with Dr. Bartolozzi’s deposition testimony on the issue of whether Dr. Booth

performed the critical aspects of Cooney’s surgery. The District Court denied the motion,

reasoning that it was untimely filed more than one year after the entry of the judgments,

and that, even assuming that the motion was timely, it lacked merit.

       Appellants subsequently filed a motion for reconsideration of the order denying

their Rule 60 (b) motion along with a motion for recusal requesting that the District Judge

recuse himself and vacate the order denying the Rule 60 (b) motion. The District Court

denied the recusal motion by order entered May 13, 2003, and denied the reconsideration

motion by order entered June 5, 2003. This appeal followed.

       The District Court properly denied appellants’ motions. We agree with the District

Court that the Rule 60 (b) motion was untimely, see Fed. R. Civ. P. 60 (b), except for the

allegation of fraud against the court, which we find to be without merit.

       Despite appellants’ assertions, Rule 60 does not provide a good cause exception for

untimely filings and, even if it did, appellants’ assertions fail to show good cause.



                                              3
         With respect to the order denying appellants’ recusal motion, the District Court did

not abuse its discretion in denying the motion. See Jones v. Pittsburgh Nat’l. Corp., 899

F.2d 1350, 1356 (3d Cir. 1990). Simply put, we find nothing in the record that suggests

personal bias or prejudice by the District Court that would preclude fair judgment. See 28

U.S.C. § 144; U.S. v. Furst, 886 F.2d 558, 582 (3d Cir. 1989). Nor do we perceive any

facts from which a reasonable person would conclude that the impartiality of the District

Court might reasonably be questioned. See 28 U.S.C. § 455(a); Edelstein v. Wilentz, 812

F.2d 128 (3d Cir. 1987). To the extent that appellants challenged the District Judge’s

handling of certain motions, appellants should have pursued their concerns on direct

appeal from the final order. Unfavorable rulings do not form an adequate basis for

recusal. See SecuraComm Consulting, Inc. v. Securacom Inc., 224 F.3d 273, 278 (3d Cir.

2000).

         The District Court likewise did not abuse its discretion in denying appellants’

reconsideration motion. Appellants failed to show an intervening change in controlling

law, new evidence, clear error of law or fact, or manifest injustice. See Max’s Seafood

Café v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). Consequently, their motion was

properly denied.

         We have considered all of appellants’ arguments and find them unpersuasive.

Accordingly, we will affirm the orders of the District Court.




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