Kennedy v. Warren Properties, LLC et al

Filing 66

ORDER ADOPTING 64 REPORT AND RECOMMENDATIONS re 24 MOTION to Dismiss filed by Michael Kaoui, 22 MOTION to Dismiss Plaintiff's Amended Complaint filed by Ashley Rich, and 19 MOTION to Dismiss filed by Derrick Williams, Matthew Green, David Wible are granted. Any claims for injunctive and declaratory relief against the Movant Defendants not dismissed under Rule 12(b)(6) or Rule 12(c) be DISMISSED without prejudice sua sponte for lack of standing. The request for disqualification of Magistrate Judge Nelson is denied, as set out. Signed by Chief Judge Kristi K. DuBose on 11/28/17. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
D. ANGELINA KENNEDY,
Plaintiff,
v.
WARREN PROPERTIES, LLC, et al.,)
Defendants.

)
)
)
) CIVIL ACTION NO. 17-00114-KD-N
)
)
ORDER

After due and proper consideration of the issues raised, and a de novo determination of
those portions of the recommendation to which objection is made, the Report and
Recommendations (Doc. 64) of the Magistrate Judge made under 28 U.S.C. § 636(b)(1)(B)-(C),
Federal Rule of Civil Procedure 72(b), and S.D. Ala. GenLR 72(a)(2)(S), and dated November 7,
2017, is ADOPTED as the opinion of this Court.
Accordingly, it is ORDERED that the motions to dismiss under Federal Rule of Civil
Procedure 12(b)(6) (Doc. 19, 22) of Defendants Judge Matthew Green, David Wible, Derrick
Williams, and Ashley Rich, and the motion to dismiss of Defendant Michael Kaoui, construed as
a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) (Doc. 24),
are GRANTED. It is further ORDERED that any claims for injunctive and declaratory relief
against the foregoing Defendants not dismissed under Rule 12(b)(6) or Rule 12(c) are
DISMISSED without prejudice sua sponte for lack of standing.
Embedded in Plaintiff’s objection1 is her request for judicial disqualification of
Magistrate Judge Nelson. Plaintiff asserts that Magistrate Judge Nelson has shown bias against
her and favoritism toward the defendants. In relevant part, 28 U.S.C. § 455 provides that federal
1

The Court construes the Plaintiff’s reply as an objection to the Report and Recommendation.

judges should disqualify themselves “in any proceeding in which his impartiality might
reasonably be questioned” or “[w]here he has a personal bias or prejudice concerning a party[.]”2
However, Magistrate Judge Nelson’s impartiality cannot reasonably be questioned, nor is there
evidence that she has a personal bias or prejudice toward Plaintiff. Instead, Plaintiff’s request is
based solely on her disagreement with Magistrate Judge Nelson’s decisions that were not
favorable to her. Disagreement with a judge’s decisions is not a basis for disqualification.
Accordingly, Plaintiff’s request is DENIED.
DONE and ORDERED this the 28th day of November 2017.

/s/ Kristi K. DuBose
KRISTI K. DuBOSE
CHIEF UNITED STATES DISTRICT JUDGE

2

The record does not indicate a basis for application of any of the other grounds set forth in the statute.