Brittain,et al v. Twitter Incorporated

Filing 18

ORDER denying Plaintiff's 16 Motion to for Change of Judge. See document for complete details. Signed by Senior Judge David G Campbell on 10/5/18. (MSA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Craig R Brittain, et al.,

No. CV18-01714-PHX-DGC

Plaintiffs,

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v.

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ORDER

Twitter Incorporated,

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Defendant.

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Plaintiff has filed a motion for change of judge. Doc. 16. Plaintiff asserts that the

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motion is “due to the absence/inactivity of current Judge David G. Campbell.” Doc. 16.

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Plaintiff asserts that “this motion has been filed due to the lack of response to pending

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time-sensitive motions by Plaintiff as well as the lack of scheduled proceedings in the

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case.” Id. at 2.

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A.

Background.
This case was filed on June 5, 2018, and was randomly assigned to Magistrate

Judge Bridget S. Bade.

Doc. 4.

On June 20, 2018, Plaintiff requested random

reassignment (Doc. 9), and the case was reassigned to the undersigned judge on
June 20, 2018.

On June 22, 2018, this Court entered an order granting Plaintiff’s

application to proceed in forma pauperis, denying Plaintiff’s motion to allow electronic

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filing, and allowing Plaintiff to amend his complaint to comply with Rule 8 of the Federal
Rules of Civil Procedure. Doc. 12.

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On June 26, 2018, Plaintiff filed an amended complaint (Doc. 13), and on

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July 27, 2018, Plaintiff filed a motion for preliminary injunction. Doc. 14. A review of

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the Court’s docket shows that Plaintiff has not yet served Defendant with the summons,

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amended complaint, notice to the parties regarding the Mandatory Initial Discovery Pilot,

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and motion for preliminary injunction. On September 28, 2018, the Court entered an

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order advising Plaintiff that the docket did not reflect proper service (the deadline for

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which passed on September 5, 2018) and extended the time to serve Defendant to

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November 27, 2018. Doc. 17. The Court cannot proceed with the case until Plaintiff

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properly serves Defendant with the required documents.

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B.

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Recusal.
Two statutes govern recusal of district judges: 28 U.S.C. §§ 144 and 455. Section

144 applies when a party believes that the district judge “has a personal bias or prejudice
either against him or in favor of any adverse party[.]” 28 U.S.C. § 144. “Section 144
expressly conditions relief upon the filing of a timely and legally sufficient affidavit.”
United States v. Sibla, 624 F.2d 864, 867 (9th Cir. 1980).

Because Plaintiff has

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submitted no affidavit, his request for recusal may not be granted under section 144.
Section 455 provides that a district judge “shall disqualify” himself in any

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proceeding in which his “impartiality might reasonably be questioned.”

28 U.S.C.

§ 455(a). Plaintiff seems to be alleging that the Court is responsible for the lack of
progress in this case, but it is Plaintiff who has not complied with the Federal Rules of
Civil Procedure by properly serving Defendant with the required documents. Recusal is

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not appropriate under section 455.

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C.

Warnings.

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As noted in previous orders (Docs. 12, 17), Plaintiff must become familiar with,

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and follow, the Federal Rules of Civil Procedure and the Rules of the United States

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District Court for the District of Arizona (“Local Rules”), which may be obtained in the

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Clerk of Court’s office.

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If Plaintiff fails to prosecute this action or to comply with the rules or any Court

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order, the Court may dismiss this action with prejudice pursuant to Federal Rule of Civil

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Procedure 41(b).

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(holding that the district court did not abuse its discretion in dismissing a pro se

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plaintiff’s complaint for failing to comply with a court order).

See Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992)

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IT IS ORDERED that Plaintiff’s motion for change of judge (Doc. 16) is denied.

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Dated this 5th day of October, 2018.

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