Cheng v. Schlumberger

Filing 82

ORDER denying 63 Request For A Different Court And/Or Transfer To Houston. Signed by Judge JEFFREY S. WHITE on 9/23/13. (jjoS, COURT STAFF) (Filed on 9/23/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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TONY CHENG,
No. C 13-02641 JSW

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ORDER DENYING REQUEST
AND DEMAND FOR A
DIFFERENT COURT OR
TRANSFER TO HOUSTON

v.
SCHLUMBERGER,

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Defendant.
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For the Northern District of California

United States District Court

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Plaintiff,

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On August 30, 2013, following a status conference, Plaintiff filed a request that this

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matter be heard by a different judge or, in the alternative, to transfer this matter to Houston,

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Texas “if Houston is a more appropriate jurisdiction.” With respect to the latter request, the

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Court DENIES the motion to transfer, because Plaintiff has not set forth facts or legal argument

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as to why Houston would be an appropriate venue to hear this dispute. If Plaintiff seeks to

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renew that request, he must file a motion to transfer, setting for the facts and legal argument that

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support this position. Plaintiff also asks that the Court recuse itself from the matter and reassign

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the case to a different judge, however he does not cite any legal authority in support of this

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request.

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A judge “shall disqualify himself in any proceeding in which his impartiality might

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reasonably be questioned.” 28 U.S.C. § 455(a). A judge also “shall disqualify himself ...

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[w]here he has a personal bias or prejudice concerning a party, or personal knowledge of

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disputed evidentiary facts concerning the proceeding.” Id. § 455(b). Section 455 imposes an

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affirmative duty upon judges to recuse themselves when “a reasonable person with knowledge

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of all the facts would conclude that the judge’s impartiality might reasonably be questioned.”

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Yagman v. Republic Ins., 987 F.2d 622, 626 (9th Cir. 1993). The provisions of Section 455

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“require recusal only if the bias or prejudice stem from an extrajudicial source and not from

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conduct or rulings made during the course of the proceeding.” Toth v. Trans World Airlines,

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Inc., 862 F.2d 1381, 1388 (9th Cir. 1988).

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Similarly, 28 U.S.C. Section 144, provides:

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Whenever a party to any proceeding in a district court makes and files a
timely and sufficient affidavit that the judge before whom the matter is
pending has a personal bias or prejudice either against him or in favor of
any adverse party, such judge shall proceed no further therein, but another
judge shall be assigned to hear such proceeding.

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The affidavit shall state the facts and the reasons for the belief that bias or
prejudice exists, and shall be filed not less than ten days before the
beginning of the term at which the proceeding is to be heard, or good
cause shall be shown for failure to file it within such time. A party may
file only one such affidavit in any case. It shall be accompanied by a
certificate of counsel of record stating that it is made in good faith.

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For the Northern District of California

United States District Court

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Pursuant to Section 144, the judge assigned to the case may pass on the legal sufficiency

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of the motion and only after legal sufficiency is established does it become the duty of that

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judge to proceed no further. See United States v. Azhocar, 581 F.2d 735, 738 (9th Cir. 1978).

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The

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inquiry is addressed to the facial sufficiency of the affidavit and not to the truth or falsity of the

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facts therein. See United States v. Montecalvo, 545 F.2d 684, 685 (9th Cir. 1976).

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However,

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[j]udicial rulings alone almost never constitute a valid basis for a bias or partiality
motion. ... [O]pinions formed by the judge on the basis of facts introduced or events
occurring in the course of the current proceedings, or of prior proceedings, do not
constitute a basis for a bias or partiality motion unless they display a deep-seated
favoritism or antagonism that would make fair judgment impossible.

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Liteky v. United States, 510 U.S. 540, 555 (1994); see also Leslie v. Grupo ICA, 198 F.3d 1152,

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1160 (9th Cir. 1999) (citing cases). Plaintiff has not filed an affidavit in support of his request.

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However, even if he had, his motion appears to be based on rulings that this Court made at the

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status conference.

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//

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//

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//
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The Court concludes Plaintiff has not demonstrated that recusal is required.
Accordingly, his request to have this matter assigned to a different judge is DENIED.
IT IS SO ORDERED.
Dated: September 23, 2013
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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TONY CHENG,

Case Number: CV13-02641 JSW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.
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SCHLUMBERGER et al,
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Defendant.

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For the Northern District of California

United States District Court

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
12 District Court, Northern District of California.
13 That on September 24, 2013, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter
14 listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an
inter-office delivery receptacle located in the Clerk's office.
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17 Tony Hsiao-Ping Cheng
1924 E 28th St
18 Oakland, CA 94606
19 Dated: September 23, 2013
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Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk