Anthony Fredianelli v. Stephan Jenkins et al

Filing 207

ORDER Re Plaintiff's 193 Motion to Disqualify. Signed by Judge Edward M. Chen on 12/10/2012. (emcsec, COURT STAFF) (Filed on 12/10/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ANTHONY FREDIANELLI,

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For the Northern District of California

United States District Court

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No. C-11-3232 EMC

Plaintiff,
v.

ORDER RE PLAINTIFF’S MOTION TO
DISQUALIFY

STEPHAN JENKINS, et al.,
(Docket No. 193)

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Defendants.
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Plaintiff Anthony Fredianelli has moved for a disqualification of Judge Corley, the

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settlement judgment in this case. Mr. Fredianelli has moved to disqualify based on 28 U.S.C. § 455,

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which provides in relevant part that “[a]ny justice, judge, or magistrate of the United States shall

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disqualify himself in any proceeding in which his impartiality might reasonably be questioned” and

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that the same “shall also disqualify himself . . . [w]here he has a personal bias or prejudice

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concerning a party.” 28 U.S.C. § 455(a), (b)(1).

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Although § 455 is a “self-enforcing” obligation upon a judge, a party may raise a § 455 issue

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by motion. See Bernard v. Coyne (In re Bernard), 31 F.3d 842, 843 n.1 (9th Cir. 1994) (noting that

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“[n]o motion is required to precipitate a judge’s recusal under section 455” but that “[p]arties may . .

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. raise the issue by motion”) (emphasis in original). The motion, however, should be decided by the

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judge whom the party asserts should be disqualified. See id. at 843 (noting the § 455 decision is to

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be made by the judge whose impartiality is being questioned), Commentary to Civil Local Rule 3-15

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(recusal request under § 455 normally undertaken by judge whose recusal is sought). Accordingly,

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the Court hereby refers the motion to disqualify to Judge Corley. The Court notes that the referral is

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not one seeking a report and recommendation. Judge Corley is the judge who will issue the

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dispositive order on the § 455 motion.

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IT IS SO ORDERED.

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Dated: December 10, 2012

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_________________________
EDWARD M. CHEN
United States District Judge

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For the Northern District of California

United States District Court

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