Russell T McAdams v. JNJW Enterprises Inc et al

Filing 26

ORDER DENYING PLAINTIFFS REQUEST FOR RECUSAL OF JUDGE DALE S. FISCHER 24 by Judge Otis D. Wright, II. (lc). Modified on 3/12/2014 (lc).

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O 1 2 3 4 5 6 7 United States District Court Central District of California 8 9 10 11 RUSSELL T. MCADAMS, 12 Plaintiff, 13 Case No. 2:13-cv-08226-DSF(SHx) v. ORDER DENYING REQUEST FOR 14 JNJW ENTERPRISES INC., BEAVEX RECUSAL OF JUDGE DALE S. 15 INCORPORATED, FISCHER [24] 16 Defendants. 17 I. INTRODUCTION 18 After Plaintiff Russell T. McAdams failed to keep the Court apprised of his 19 mailing address, he did not receive notice of Defendants’ Motion to Dismiss. United 20 States District Judge Dale S. Fischer then granted Defendants’ Motion for non- 21 opposition and entered judgment in their favor. 22 McAdam’s Motion for Reconsideration, he filed this Request to Recuse her. But 23 since McAdams has presented no evidence or other indication that any valid basis for 24 recusal exists, the Court DENIES McAdams’s Request. (ECF No. 24.) 25 II. After Judge Fischer denied FACTUAL BACKGROUND 26 On October 7, 2013, McAdams filed suit against Defendants JNJW Enterprises 27 Inc. and BeavEx Inc. in Ventura County Superior Court for allegedly wrongfully 28 withholding Plaintiff’s earnings. (Not. of Removal Ex. A.) Defendants subsequently 1 removed the case to the United States District Court for the Central District of 2 California. (ECF No. 1.) The matter was randomly assigned to Judge Fischer. 3 Defendants then moved to dismiss McAdams’s Complaint, alleging that 26 4 U.S.C. § 6332(e) absolutely immunized them from any claim arising out of their 5 compliance with the Internal Revenue Service’s Notice of Levy. Apparently the IRS 6 had issued the Notice of Levy to JNJW, a wholly owned subsidiary of BeavEx, 7 because it discovered that JNJW owed McAdams $1,066.45. The IRS sought to 8 obtain that money to partially satisfy the IRS’s $133,275.75 levy against McAdams. 9 JNJW complied with the Notice of Levy and remitted the $1,066.45 to the IRS. 10 After McAdams did not receive the money JNJW previously owed him, 11 McAdams filed suit. McAdams did not oppose Defendants’ Motion to Dismiss. 12 (ECF No. 9.) It turns out that McAdams failed to keep the Court apprised of his 13 current address as required by Local Rule 41-6, so he did not receive notice of the 14 Motion. Judge Fischer granted Defendants’ Motion to Dismiss for non-opposition 15 and entered judgment in favor of Defendants. 16 subsequently filed a Motion for Reconsideration (ECF No. 18), which Judge Fischer 17 also denied, finding that McAdams had not demonstrated excusable neglect. (ECF 18 No. 23.) 19 III. (ECF Nos. 10, 11.) McAdams LEGAL STANDARD 20 The standard for disqualification of a federal judge is established by 28 U.S.C. 21 §§ 144 and 455. In giving McAdams the benefit of the doubt as a pro se movant, the 22 Court construes his request under both statutes. Section 144 permits a party seeking 23 disqualification to file an affidavit setting forth facts and reasons for his belief that the 24 judge “has a personal bias or prejudice either against him or in favor of any adverse 25 party.” 28 U.S.C. § 144. When determining the affidavit’s legal sufficiency, “the 26 factual allegations in the affidavit must be accepted as true,” although “general or 27 conclusory allegations will not support disqualification.” United States v. Zagari, 419 28 F. Supp. 494, 500–01 (N.D. Cal. 1976). Further, the alleged bias must be from an 2 1 extrajudicial source and “result in an opinion on the merits on some basis other than 2 what the judge learned from his participation in the case.” United States v. Grinnell 3 Corp., 384 U.S. 563, 583 (1966). 4 Under 28 U.S.C. § 455, a judge must disqualify herself in any proceeding in 5 which one might reasonably question her impartiality. 28 U.S.C. § 455(a). But the 6 substantive standard for recusal under §§ 144 and 455 is the same: whether a 7 reasonable person with knowledge of all the facts would conclude that the judge’s 8 impartiality might reasonably be questioned. United States v. Hernandez, 109 F.3d 9 1450, 1453–54 (9th Cir. 1997). IV. 10 DISCUSSION 11 McAdams does not specifically address why he believes that the Court should 12 recuse Judge Fischer under either §§ 144 or 455. But in any event, the Court finds 13 that neither section compels Judge Fischer’s recusal. The Court therefore denies 14 McAdam’s Motion. 15 A. 28 U.S.C. § 144 16 Section 144 requires the movant to file an affidavit stating “the facts and the 17 reasons for the belief that bias or prejudice exists.” § 144. McAdams has filed no 18 such affidavit, thereby rendering his Motion procedurally defective. That failure is 19 alone enough to deny his recusal Motion. 20 But even if McAdams had properly filed an affidavit, he has not demonstrated 21 that Judge Fischer exhibited any “personal bias or prejudice either against him or in 22 favor any adverse party.” See § 144. Rather, McAdams only alleges that Judge 23 Fischer did not read the papers at issue or the Internal Revenue Code—the operative 24 law governing Defendants’ immunity and the IRS’s levy. 25 McAdams’s allegations are belied by Judge Fischer’s Orders. McAdams failed 26 to keep the Court apprised of his current address, thereby rendering it impossible for 27 him to receive notice of Defendants’ Motion to Dismiss. 28 authorized Judge Fischer to “dismiss the action with or without prejudice for want of 3 Local Rule 41-6 fully 1 prosecution.” She therefore acted within her authority—and not as a result of any 2 personal bias or prejudice—when she granted Defendants’ Motion and entered 3 judgment in their favor. No reasonable person knowing of the Local Rules and this 4 case’s particular circumstances would reasonably question Judge Fischer’s 5 impartiality. Instead, her Orders make clear that she followed the law that McAdams 6 alleges she ignored. 7 B. 28 U.S.C. § 455 8 Section 455 governs mandatory self-recusal. It largely overlaps with § 144. 9 McAdams likewise has not presented any evidence that Judge Fischer failed to recuse 10 herself based on any of the factors enumerated in § 455. There is no indication that 11 Judge Fischer has any bias or prejudice concerning any party to this action, she 12 previously practiced as a lawyer in the matter, or has any financial interest in the 13 outcome of McAdams’s case. § 455(a), (b). 14 As discussed above, no reasonable person could reasonably question Judge 15 Fischer’s impartiality considering this case’s particular circumstances and the absolute 16 immunity Defendants have under 26 U.S.C. § 6332(e). Rather, her Orders reflect her 17 application of the applicable law to the facts and procedural issues of McAdams’s 18 case. V. 19 20 21 22 CONCLUSION For the reasons discussed above, the Court DENIES McAdams’s Motion to Recuse Judge Fischer. (ECF No. 24.) IT IS SO ORDERED. 23 24 March 12, 2014 25 26 27 ____________________________________ OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE 28 4

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