Kuc v. BAC Home Loans Servicing LP et al

Filing 30

ORDER denying 23 Plaintiff's Motion to Disqualify Judge; denying 24 Plaintiff's Motion for Default Judgment. Signed by Judge Frederick J Martone on 5/21/12.(DMT)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Bank of America, NA, successor by)
merger to BAC Home Loans Servicing LP;)
Bank of America Corp., successor in)
interest to Countrywide Bank; Saxon)
Mortgage Services, Inc.; Old Republic)
National Title Insurance Co.; Mortgage)
Electronic Registration Systems Inc.)
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("MERS"),
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Defendants.
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Anthony J. Kuc, Jr.,

CV 12-08024-PCT-FJM
ORDER

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The court has before it plaintiff's motions for removal and disqualification (doc. 23)

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and default judgment (doc. 24). No responses were filed, and the time for responding has

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expired.

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Plaintiff originally filed this action in the Superior Court of Arizona in Mohave

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County asserting various claims relating to a trustee's sale noticed on his home. Defendant

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Old Republic removed (doc. 1). We denied plaintiff's multiple motions for default judgment

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(doc. 20). On April 16, 2012, we denied plaintiff's motion to remand, granted Bank of

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America, N.A., Bank of America Corp., and MERS's motion to dismiss, and granted Old

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Republic's motion to dismiss (doc. 21). The Clerk entered judgment in favor of defendants

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the same day (doc. 22).

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Plaintiff moves for our recusal under 28 U.S.C. § 455. Pursuant to § 455(a), a judge

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"shall disqualify himself in any proceeding in which his impartiality might reasonably be

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questioned." To determine whether recusal is needed, we ask "whether a reasonable person

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with knowledge of all the facts would conclude that the judge's impartiality might reasonably

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be questioned." United States v. Holland, 519 F.3d 909, 913 (9th Cir. 2008) (citation

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omitted). "The 'reasonable person' is not someone who is 'hypersensitive or unduly

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suspicious,' but rather is a 'well-informed, thoughtful observer.'" Id. (quoting In re Mason,

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916 F.2d 384, 386 (7th Cir. 1990)).

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Plaintiff alleges that our denial of his motions for default judgment reflect favoritism

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towards defendants and defendants' counsel. He questions whether we in fact signed our

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order, as our signature is hand-printed. He believes that defendants had no defense to his

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motions for default judgment because, as business entities, they are fictional and thus do not

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exist to defend themselves. In essence, plaintiff alleges that we have shown prejudice and

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bias by deciding the action in favor of defendants and have violated his rights to discovery

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and due process.

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We can understand plaintiff's frustration at having his action removed to a forum

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where he did not choose to litigate (a forum that he vigorously disputed has jurisdiction over

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this matter), which then entered adverse rulings against him. A prior adverse ruling,

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however, is not sufficient cause for recusal because the alleged prejudice does not stem from

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an extrajudicial source. United States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986). Instead,

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§ 455(a) usually requires "something other than rulings, opinions formed or statements made

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by the judge during the course of trial." Holland, 519 F.3d at 913-14. In the "rarest

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circumstances," conduct during judicial proceedings may provide the basis for recusal when

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the facts show "a deep-seated favoritism or antagonism that would make fair judgment

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impossible," although these situations are "[a]lmost invariably. . . proper grounds for appeal,

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not for recusal." Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 1157 (1994).

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This is not one of those rare cases. Plaintiff has not presented facts that would lead

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a reasonable person to conclude that fair judgment was impossible due to favoritism. All we
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did was rule on motions in good faith. The accuracy of those rulings is subject to review by

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a litigant's timely appeal to the United States Court of Appeals for the Ninth Circuit.

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Accordingly, plaintiff's motion for disqualification is denied. We further deny plaintiff's

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motion for default judgment, as the Clerk has already entered judgment in favor of

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defendants.

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IT IS ORDERED DENYING plaintiff's motion for removal and disqualification

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(doc. 23). IT IS FURTHER ORDERED DENYING plaintiff's motion for default

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judgment (doc. 24).

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We urge plaintiff to seek the advice of a lawyer. Only a lawyer can properly evaluate

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plaintiff's position and take whatever steps may be necessary to protect plaintiff's interests.

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DATED this 21st day of May, 2012.

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