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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 16 17 18 ) ) ) Plaintiff, ) ) vs. ) ) 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.) ) ("MERS"), ) ) Defendants. ) ) Anthony J. Kuc, Jr., CV 12-08024-PCT-FJM ORDER 19 The court has before it plaintiff's motions for removal and disqualification (doc. 23) 20 and default judgment (doc. 24). No responses were filed, and the time for responding has 21 expired. 22 Plaintiff originally filed this action in the Superior Court of Arizona in Mohave 23 County asserting various claims relating to a trustee's sale noticed on his home. Defendant 24 Old Republic removed (doc. 1). We denied plaintiff's multiple motions for default judgment 25 (doc. 20). On April 16, 2012, we denied plaintiff's motion to remand, granted Bank of 26 America, N.A., Bank of America Corp., and MERS's motion to dismiss, and granted Old 27 Republic's motion to dismiss (doc. 21). The Clerk entered judgment in favor of defendants 28 the same day (doc. 22). 1 Plaintiff moves for our recusal under 28 U.S.C. § 455. Pursuant to § 455(a), a judge 2 "shall disqualify himself in any proceeding in which his impartiality might reasonably be 3 questioned." To determine whether recusal is needed, we ask "whether a reasonable person 4 with knowledge of all the facts would conclude that the judge's impartiality might reasonably 5 be questioned." United States v. Holland, 519 F.3d 909, 913 (9th Cir. 2008) (citation 6 omitted). "The 'reasonable person' is not someone who is 'hypersensitive or unduly 7 suspicious,' but rather is a 'well-informed, thoughtful observer.'" Id. (quoting In re Mason, 8 916 F.2d 384, 386 (7th Cir. 1990)). 9 Plaintiff alleges that our denial of his motions for default judgment reflect favoritism 10 towards defendants and defendants' counsel. He questions whether we in fact signed our 11 order, as our signature is hand-printed. He believes that defendants had no defense to his 12 motions for default judgment because, as business entities, they are fictional and thus do not 13 exist to defend themselves. In essence, plaintiff alleges that we have shown prejudice and 14 bias by deciding the action in favor of defendants and have violated his rights to discovery 15 and due process. 16 We can understand plaintiff's frustration at having his action removed to a forum 17 where he did not choose to litigate (a forum that he vigorously disputed has jurisdiction over 18 this matter), which then entered adverse rulings against him. A prior adverse ruling, 19 however, is not sufficient cause for recusal because the alleged prejudice does not stem from 20 an extrajudicial source. United States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986). Instead, 21 § 455(a) usually requires "something other than rulings, opinions formed or statements made 22 by the judge during the course of trial." Holland, 519 F.3d at 913-14. In the "rarest 23 circumstances," conduct during judicial proceedings may provide the basis for recusal when 24 the facts show "a deep-seated favoritism or antagonism that would make fair judgment 25 impossible," although these situations are "[a]lmost invariably. . . proper grounds for appeal, 26 not for recusal." Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 1157 (1994). 27 This is not one of those rare cases. Plaintiff has not presented facts that would lead 28 a reasonable person to conclude that fair judgment was impossible due to favoritism. All we -2- 1 did was rule on motions in good faith. The accuracy of those rulings is subject to review by 2 a litigant's timely appeal to the United States Court of Appeals for the Ninth Circuit. 3 Accordingly, plaintiff's motion for disqualification is denied. We further deny plaintiff's 4 motion for default judgment, as the Clerk has already entered judgment in favor of 5 defendants. 6 IT IS ORDERED DENYING plaintiff's motion for removal and disqualification 7 (doc. 23). IT IS FURTHER ORDERED DENYING plaintiff's motion for default 8 judgment (doc. 24). 9 We urge plaintiff to seek the advice of a lawyer. Only a lawyer can properly evaluate 10 plaintiff's position and take whatever steps may be necessary to protect plaintiff's interests. 11 DATED this 21st day of May, 2012. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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