Patricia Stocker v. Ralph Stracke ( 1998 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 96-4282
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Jennifer S. Stocker, *
*
Plaintiff, *
*
v. *
*
Ralph Stracke; Marjorie Stracke, *
*
Defendants - Appellees. *
* Appeal from the United States
----------------------------------------------- * District Court for the Western
* District of Missouri.
Patricia Stocker; Greg Stocker, *
* [UNPUBLISHED]
Third Party Defendant - *
Appellants, *
*
v. *
*
Ralph Stracke; Marjorie Stracke, *
*
Third Party Plaintiff - *
Appellees. *
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Submitted: December 10, 1997
Filed: August 12, 1998
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Before BOWMAN, FLOYD R. GIBSON, and LOKEN, Circuit Judges.
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PER CURIAM.
Appellants Greg Stocker and Patricia Stocker1 challenge the district court judge's
failure to recuse himself from this case. See 28 U.S.C. §§ 144 and 455(a) (1994). The
Stockers also assert that the district court erred by failing to grant their motion to alter
or amend the jury verdict in favor of Ralph Stracke and Marjorie Stracke on their claim
against the Stockers for intentional infliction of emotional distress. See Fed. R. Civ.
P. 59(e). Because we conclude that the district court2 did not err in making these
rulings, we affirm.
The Stockers claim that the district judge erred when he refused to recuse
himself from the case. Section 144 provides that "[w]henever 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." Section 455(a) provides that a judge "shall disqualify himself in
any proceeding in which his impartiality might reasonably be questioned." "We note
that decisions on recusal or disqualification motions are committed to the district court's
sound discretion." United States v. Johnson, 47 F.3d 272, 276 (8th Cir. 1995)
(quotation and citation omitted).
The Stockers have not established "the existence of a significant . . .
'extrajudicial source' factor," which would have required the district judge to recuse
himself. Liteky v. United States, 510 U.S. 540, 555 (1994) (emphasis omitted). The
Stockers assert that many of the judge's rulings indicate a bias or partiality warranting
recusal. However, "[a]lmost invariably, [judicial rulings] are proper grounds for
1
Jennifer Stocker was also an appellant in this case, but on April 4, 1997, this
court granted Jennifer Stocker's voluntary motion to dismiss her appeal.
2
The HONORABLE DEAN WHIPPLE, United States District Judge for the
Western District of Missouri.
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appeal, not for recusal." Id. The district judge remarked at a pretrial conference that
he was skeptical of recovered memory cases, but "judicial remarks during the course
of a trial that are critical or disapproving of . . . the parties, or their cases, ordinarily do
not support a bias or partiality challenge." Id. After a careful review of the district
judge's conduct, we conclude that he was quite capable of making a fair judgment, see
id., and that a reasonable person "would not question the judge's impartiality in this
case," Bannister v. Delo, 100 F.3d 610, 614 (8th Cir. 1996), cert. denied, 117 S. Ct.
2526 (1997).
The Stockers also challenge the district judge's refusal to alter or amend the jury
verdict in favor of Ralph Stracke and Marjorie Stracke on their claim against the
Stockers for intentional infliction of emotional distress. See Fed. R. Civ. P. 59(e). The
Stockers argue that the district court should have granted their motion because the
Strackes did not present medical evidence to support their claims of emotional distress.
We will not address this issue, however, because it has not been properly preserved for
review. The Stockers did not file a motion for judgment as a matter of law on this issue
pursuant to Fed. R. Civ. P. 50; therefore, they were not permitted to raise it in their
Rule 59 motion. See Kientzy v. McDonnell Douglas Corp., 990 F.2d 1051, 1061 (8th
Cir. 1993); Rockport Pharmacy, Inc. v. Digital Simplistics, Inc., 53 F.3d 195, 197 (8th
Cir. 1995).
We now turn to another matter which concerns the court. Both of the issues
raised by the Stockers' attorney are without merit. Moreover, the appellants' brief is
fraught with inflammatory and inappropriate language.3 We therefore direct the
3
For example, the brief states:
The conduct of Judge Whipple throughout this case has been so
grotesquely one-sided, unfair and unlawful that it can fairly be said that
the prestige and integrity of the U.S. District Court was reduced in this
case to that of a racket, with Judge Whipple sitting as the racket-boss.
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Stockers' attorney to show cause within twenty days why we should not sanction him
"for conduct unbecoming a member of the bar." Fed. R. App. P. 46(c).
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
Indeed, Judge Whipple's continuing and unabated unlawful conduct in this
case justifies his formal investigation and prosecution under Federal
R.I.C.O. Statutes, and impeachment for his willful and ongoing violation
of 28 U.S.C. § 144 in this case.
Appellants' Br. at 26.
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