Dev v. Donahoe
Filing
136
ORDER signed by Judge John A. Mendez on 11/6/13 DENYING 134 Motion for Reconsideration. (Manzer, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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LAL DEV,
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11-cv-2950 JAM-EFB-PS
Plaintiff,
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No.
v.
ORDER DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION
PATRICK R. DONAHOE,
POSTMASTER GENERAL OF THE
UNITED STATES POSTAL SERVICE,
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Defendant.
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This matter is before the Court on Plaintiff Lal Dev’s
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(“Plaintiff”) Motion for Reconsideration by the District Court of
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the Magistrate Judge’s Ruling (Doc. #134). 1
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file an opposition.
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motion is DENIED.
Defendant did not
For the reasons set forth below, Plaintiff’s
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I.
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FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
Plaintiff filed this action on November 7, 2011, against
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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 303(e). No hearing was
scheduled.
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Patrick R. Donahoe, Postmaster General of the United States
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Postal Service (“Defendant”).
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Magistrate Judge in this action and in Plaintiff’s related
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action, Dev v. Donahoe, 2:12-cv-03026 JAM-EFB (Doc. #124).
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Magistrate Judge denied Plaintiff’s motion (Doc. #130).
Plaintiff moved to disqualify the
The
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II.
OPINION
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A.
Legal Standard
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The standard for a Motion for Reconsideration is governed by
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28 U.S.C. § 636(b) and Local Rule 303.
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reconsider any pretrial matter . . . where it has been shown that
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the magistrate judge’s order is clearly erroneous or contrary to
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law.”
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standard of review under § 636(b)(1)(A) is highly deferential;
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see United States v. Abonce-Barrera, 257 F.3d 959, 968-69 (9th
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Cir. 2001), and does not permit the reviewing court to substitute
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its own judgment for that of the magistrate judge’s.
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City & County of San Francisco, 951 F.2d 236, 241 (9th Cir.
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1991).
The district court “may
28 U.S.C. § 363(b)(1)(A); E.D. Cal. L. R. 303(f).
The
Grimes v.
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B.
Discussion
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Plaintiff seeks reconsideration of the Magistrate Judge’s
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order denying Plaintiff’s motion to disqualify the Magistrate
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Judge.
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The applicable recusal statute, 28 U.S.C. § 455, provides
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that “[a]ny justice, judge, or magistrate judge of the United
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States shall disqualify himself in any proceeding in which his
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impartiality might reasonably be questioned.”
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455(a).
28 U.S.C. §
He shall also disqualify himself when he has “a personal
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bias or prejudice concerning a party...” or “[w]here he has
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served in governmental employment and in such capacity
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participated as counsel, adviser or material witness concerning
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the proceeding or expressed an opinion concerning the merits of
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the particular case in controversy.”
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Furthermore, under § 455, the alleged bias must stem from an
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“extrajudicial source.”
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551 (1994).
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facts introduced or events occurring in the course of the current
Id. § 455(b)(1) and b(3).
Liteky v. United States, 510 U.S. 540,
“[O]pinions formed by the judge on the basis of
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proceedings, or of prior proceedings, do not constitute a basis
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for a bias or partiality motion unless they display a deep-seated
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favoritism or antagonism that would make fair judgment
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impossible.”
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Id. at 555.
Generally, Plaintiff contends that several of the Magistrate
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Judge’s rulings in this case demonstrate a bias in favor of
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Defendant because Defendant’s counsel is an Assistant U.S.
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Attorney and the Magistrate Judge was formerly employed at the
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U.S. Attorney’s Office and therefore, the Magistrate Judge should
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have recused himself under § 455(a), § 455(b)(1), and §
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455(b)(3).
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allege that the Magistrate Judge had any actual participation in
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this particular case while employed at the U.S. Attorney’s
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Office.
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v. Ruzzano, 247 F.3d 688, 695 (7th Cir. 2001) (“As applied to
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judges who were former AUSAs, § 455(b)(3) requires some level of
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actual participation in a case to trigger disqualification.”)
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(citations omitted).
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motion is based on his disagreement with various rulings made by
See Mot. at 12-13.
However, Plaintiff does not
Therefore, recusal is not warranted.
See United States
In addition, to the extent Plaintiff’s
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the Magistrate Judge, rulings in an action alone are insufficient
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for recusal.
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has not demonstrated that the Magistrate Judge’s ruling is
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“clearly erroneous or contrary to law.”
Liteky, 510 U.S. at 555.
Accordingly, Plaintiff
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III.
ORDER
For the reasons set forth above, the Court DENIES
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Plaintiff’s Motion for Reconsideration of the Magistrate Judge’s
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Ruling.
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IT IS SO ORDERED.
Dated: November 6, 2013
____________________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE
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