Appeal from a judgment entered in the United States District Court for the Eastern District of New York (Leonard D. Wexler, Judge) denying a Rule 60(b) motion and imposing on the plaintiff's attorney Rule 11 sanctions of $2,489 in costs and fees to be paid to the defendant and $2,500 to be paid to the Clerk of the Court. We dismiss the appeal from the award of sanctions for lack of jurisdiction. We affirm the denial of the Rule 60(b) motion and sua sponte order the attorney to show cause why a sanction of double costs and attorney's fees should not be imposed under Fed. R. App. P. 38.
Winter, Miner and Altimari, Circuit Judges.
This case raises the issue of whether we have appellate jurisdiction to review a judgment imposing Fed. R. Civ. P. 11 sanctions on an attorney when the notice of appeal is in the name of the client only. We conclude that we do not. We affirm the district court's denial of a Rule 60(b) motion, and sua sponte order the attorney to show cause why sanctions should not be imposed under Fed. R. App. P. 38.
We begin by noting that this case is on its third trip to this court. The action started when plaintiff John P. DeLuca sued defendant Long Island Lighting Company, Inc. ("LILCO") for damages arising from injuries he sustained in a motorcycle accident occurring on land owned by LILCO. Before trial, Judge Wexler granted the defendant partial summary judgment. He held that the New York General Obligations Law, § 9-103(1), (2), applied to the land in question and that it limited LILCO's obligation to motorcycle riders to refraining from a "willful or malicious failure to guard, or to warn against, a dangerous condition . . . ." Id. Plaintiff filed an appeal from that interlocutory order but later withdrew it after a conference with our staff counsel. A jury trial followed, and LILCO prevailed.
Plaintiff then appealed a second time. His brief argued that the extent of development adjoining LILCO's land rendered Section 9-103 inapplicable. Because that argument had never been raised in the district court, we declined to entertain it and affirmed by a summary order that stated:
On this appeal, plaintiff relies on Russo v. City of New York, 116 A.D.2d 240, 500 N.Y.S.2d 673 (App. Div. 1986), which held that the applicability of Section 9-103(1) turns on the degree of development near the area in which the accident occurred. We need not address this claim because it was never presented to the district court.
Plaintiff's opposition to the motion for summary judgment stated three grounds: (1) as a matter of law the statute does not apply to utility right of ways; (2) the statute applies only to landowners who gratuitously allow persons to use the property; and (3) LILCO's conduct involved a willful or malicious failure to warn against a dangerous condition, and there is liability under Section 9-103(1). Plaintiff at no time alerted the district court to his present claim that the extent of development near the right of way was a material fact and was in dispute. Nor did his response to the motion for summary judgment state facts regarding the extent of development near the area . . . . Finally, we note that Russo was decided well before defendant made its motion for summary judgment and does not involve a change in the law subsequent to Judge Wexler's decision.
Plaintiff next filed a petition for rehearing and then moved for permission to file a Fed. R. Civ. P. 60(b) motion, raising the same arguments and claiming that new evidence had been discovered. Both the petition and the motion were denied. Several months later, plaintiff returned to the district court and moved pursuant to Fed. R. Civ. P. 60(b) and 28 U.S.C. § 455(a) that Judge Wexler recuse himself. The grounds for recusal asserted in the motion were that Judge Wexler was a member of a country club and owned an interest in a parcel of undeveloped real property on Long Island. The motion papers argued that this membership and ownership may have, or appeared to have, predisposed Judge Wexler to apply the New York General Obligations Law, rather than ordinary tort principles, to LILCO's similarly undeveloped property. The claimed error in Judge Wexler's decision was in not applying Russo v. The City of New York, the same argument we had held to be waived in the summary order quoted above. Judge Wexler heard oral argument and found the motion to be frivolous. After a hearing, Judge Wexler awarded Rule 11 sanctions against the plaintiff's attorney, Jay M. Gallinger. These included $2,489 to be paid to LILCO, its actual costs of opposing the motion, and also $2,500 to be paid to the Clerk of the Court.
Plaintiff appeals from the denial of the Fed. R. Civ. P. 60(b) motion and from the imposition of sanctions on his counsel. Gallinger himself has not filed a notice of appeal.
We first discuss the denial of the Rule 60(b) motion. A judge should recuse himself under Section 455(a) "in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a) (1982). This provision sets out an objective standard for recusal, creating the so-called "appearance of justice" rule. In re Int'l Business Machines Corp., 618 F.2d 923, 929 (2d Cir. 1980). "The test for an appearance of partiality is . . . whether an objective, disinterested observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt that justice would be done in the case." Pepsico, Inc. v. McMillen, 764 F.2d 458, 460 (7th Cir. 1985).
Judge Wexler's finding that the motion was frivolous is self-evidently correct. The alleged connection between Judge Wexler's interests in land on Long Island and the argument concerning Section 9-103(1), (2) is based on the rankest of speculation. Any vague hint of self-interest on Judge Wexler's part is considerably less than that in other cases in which judges have been accused of having had an attenuated financial interest in the subject matter in controversy but have been found to have had an insufficiently direct interest to warrant recusal. See Oglala Sioux Tribe of the Pine Ridge Indian Reservation v. Homestake Mining Co., 722 F.2d 1407, 1414-15 (8th Cir. 1983) (trial judge's ownership of land in Black Hills area did not qualify as financial interest in subject matter in controversy where disposition of party's claim to land in area would not affect judge's title to land in any way); National Union Fire Ins. Co. of Pittsburgh v. Continental Illinois Corp., 639 F. Supp. 1229, 1230-32 (N.D. Ill. 1986) (district judge, who owned one and two-thirds percent interest in radio partnership which was itself a twenty-three percent limited partner in limited partnership, would not ...