Peterson v. Morris et al

Filing 55

ORDER denying 53 Motion for Recusal. Signed by Judge John W. Sedwick on 8/25/11. (GMM, CHAMBERS STAFF)

UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA

INGRID PETERSON,
Plaintiff,
vs.
WILLIAM S. MORRIS IV, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

3:11-cv-00075 JWS
ORDER AND OPINION
[Re:

Motion at Docket 53]

At docket 53, pro se plaintiff Ingrid Peterson requests the assigned judge to
recuse from this action pursuant to 28 U.S.C. § 455. Peterson has filed a supporting
memorandum at docket 54. She contends that the actions of the assigned judge on the
record in a June 28, 2011, teleconference establish that the judge’s impartiality might
reasonably be questioned rendering recusal necessary under § 455.
A United States judge is under an affirmative duty to recuse, “in any proceeding
in which his [or her] impartiality might reasonably be questioned.” 28 U.S.C. § 455(a).
The judge, however, “has ‘as strong a duty to sit when there is no legitimate reason to
recuse as he does to recuse when the law and facts require.’” Clemens v. U.S. Dist.
Court for the Central Dist. of California, 428 F.3d 1175, 1179 (9th Cir. 2005) (citation
omitted). The standard is whether a “reasonable person with knowledge of all the facts
would conclude that the judge’s impartiality might reasonably be questioned.” Clemens,

428 F.3d at 1178. This “reasonable person” means “a ‘well-informed, thoughtful
observer,’ as opposed to a ‘hypersensitive or unduly suspicious person.’” Id.
A judge must also recuse in cases where the judge “has a personal bias or
prejudice concerning a party or personal knowledge concerning the proceeding.” 28
U.S.C. § 455(b)(1). A litigant seeking to disqualify a judge must establish that the
judge’s bias or prejudice reflects an obvious inability to fairly preside over a proceeding.
See, e.g., Liteky v. United States, 510 U.S. 540, 551-52 (1994). This generally requires
that the alleged bias or prejudice arise from an extrajudicial source. Clemens, 428 F.3d
at 1178 (citations omitted). The Supreme Court has recognized that past “judicial
rulings alone almost never constitute a valid basis for a bias or partiality motion.” Liteky,
510 U.S. at 555. Recusal motions brought pursuant to 28 U.S.C. § 455 should be
decided by the judge whose recusal is sought. Clemens, 428 F.3d at 1178. In deciding
whether recusal is required, the judge need not accept as true the allegations advanced
by the moving party. Id. at 1178-1179.
Ms. Peterson’s request for recusal is based on the colloquy between the court,
Ms. Perterson, and defense counsel on the record during the June 28, 2011
teleconference. That teleconference was held at the request of Ms. Peterson for the
purpose of establishing a pre-trial schedule for this case. See, Order at docket 24.
Following the teleconference, the court issued an ordinary pre-trial scheduling order.
See Planning and Scheduling Order at docket 30.
Ms. Peterson’s first complaint is that the court offered defendants, but not
plaintiff, an opportunity to have the case tried before a magistrate judge. Whether the
court inquired first of Ms. Peterson or defense counsel on this topic is of no moment.
-2-

The point Ms. Peterson fails to appreciate is that a civil case may be tried to a
magistrate judge rather than a district judge only if the parties consent. See 28 U.S.C.
§ 636(c)(1). Once any party indicates that he or she will not consent to trial before a
magistrate judge, there is no reason to pursue the matter with another party, because
one party’s consent alone is not enough to permit the case to proceed before a
magistrate judge.
Ms. Peterson’s second complaint is that the court ignored her statement that she
might need expert witnesses. The court’s understanding was that neither side stated
that expert witnesses would necessarily be required. Drawing on its own experience
the court thought this defamation case is of a type where an expert would likely not be
needed (in contrast, for example, with a personal injury case where medical experts are
needed to testify concerning the extent of a victim’s physical injuries and the victim’s
prognosis, or with a medical malpractice case where an expert is needed to establish
the standard of care). Thus, the order at docket 30 indicates that there is no indication
that experts will be used. If either party later finds that an expert is actually needed, that
party could seek to have the scheduling order amended.
The third ground is based on Ms. Peterson’s belief that by identifying witnesses
who might have negative testimony about Ms. Peterson possibly relevant to the extent
of damages she suffered, defense counsel was putting her in danger from those
persons. The court noted that defendants have a duty to disclose the names of persons
whom they think may have relevant evidence. See Fed. R. Civ. P. 26 (a)(1). There is
nothing about the court’s action which was improper.

-3-

The fourth ground is related to the third, in that Ms. Peterson complains about the
testimony that might come from the people who have a negative view of her. It is Ms.
Peterson’s view that because she disagrees with the views held by such people the
court should not allow their testimony. However, as the court explained, if relevant
testimonial evidence is offered, a witnesses’ sworn testimony (i.e., “their word”) is an
adequate foundation for reception of the testimony into evidence. It then becomes
incumbent on the party who believes the witness is testifying falsely to establish that
proposition through cross-examination.
The fifth and final ground advanced is based on the fact that the court
encouraged plaintiff to carefully consider the information offered by defense counsel
regarding the corporate relationships of entities who may be responsible for the
publication of the material Ms. Peterson considers to be defamatory. The court
essentially made the entirely reasonable suggestion that a party who lacks first hand
knowledge to carefully consider the information provided by counsel for parties who are
in a position to know the facts about the interrelationship of various corporate entities.
The court itself has no knowledge of the facts and did not intimate otherwise.
In summary, the motion is based entirely on routine actions taken by the court on
the record at a telephonic scheduling conference. Knowledge of those actions would
not cause a reasonable person to question the impartiality of the assigned judge.
Accordingly, the motion at docket 53 is DENIED.
DATED this 25th day of August 2011.
/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE
-4-