Xavier et al v. Philip Morris USA Inc

Filing 105

ORDER by Judge Charles R. Breyer denying 91 Motion for Recusal. (crblc1, COURT STAFF) (Filed on 4/15/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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No. C 10-02067 WHA (CRB)

BURT XAVIER,

ORDER DENYING REQUEST FOR
RECUSAL

Plaintiff,
v.
PHILIP MORRIS USA INC.,
Defendant.

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In a recent hearing in this case, which involves allegations that Marlboro cigarettes are

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“unnecessarily dangerous,” Judge William Alsup disclosed that his mother smoked for many

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years and died of lung cancer. Defendant has now moved to recuse Judge Alsup from the

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case, pursuant to 28 U.S.C. § 455(a). See dkt. no. 91. Judge Alsup’s experiences, which are

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not altogether uncommon, are greatly distinguishable from those in the cases cited by

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Defendant. See, e.g., In re Nettles, 394 F.3d 1001, 1002-03 (7th Cir. 2005). The Court finds

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that a reasonable person with knowledge of all the facts would not conclude that Judge

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Alsup’s impartiality might reasonably be questioned. See Pesnell v. Arsenault, 543 F.3d

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1038, 1043 (9th Cir. 2008). Accordingly, the motion is DENIED.

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IT IS SO ORDERED.

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Dated: April 15, 2011

G:\CRBALL\2010\2067\recusal.wpd

CHARLES R. BREYER
UNITED STATES DISTRICT JUDGE