Liao v. Ashcroft et al

Filing 79

ORDER by Judge Hamilton denying 65 Motion to Disqualify; denying 71 Motion to Set Aside Judgment; denying 71 Motion for Investigation; finding as moot 76 Motion to Stay; denying 76 Motion to Shorten Time (pjhlc1, COURT STAFF) (Filed on 4/16/2009)

1 2 3 4 5 6 7 8 9 10 WANGXIA LIAO, Plaintiff, v. JOHN ASHCROFT, et al.,

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

No. C 08-2776 PJH ORDER

Defendants. ____________________________/ Before the court are four motions filed by plaintiff Wanxia Liao in the above-entitled action. Having read and considered plaintiff's papers, the court hereby rules as follows. 1. Plaintiff's motion for an order shortening time to hear the motion to stay

United United States District Court

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For the Northern District of California

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proceedings is DENIED. The motion does not comply with Civil Local Rule 6-3. In addition, in light of the rulings below, plaintiff's motion to stay proceedings is DENIED as moot. 2. Plaintiff's motion for investigation of changes in the docket is DENIED. As the

court explained in its Order of Dismissal, filed March 11, 2009, the notation on the docket that California Deputy Attorney General Kay Yu had filed a declination on behalf of John Ashcroft was a clerical error. In addition, it is the filed document that controls, not the docket entry, and the filed document makes no mention of John Ashcroft. The court notes further that plaintiff named Ms. Yu as a defendant in the present action, asserting claims based on Ms. Yu's representation (as a Deputy California Attorney General) of California defendants in a prior lawsuit filed by plaintiff; and also named former Attorney General of the United States John Ashcroft as a defendant. Plaintiff is chargeable with the knowledge that Ms. Yu is a Deputy Attorney General of the State of California, who could not at any time have been representing a former United States Attorney General in an action based on actions taken while he held that position.

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3.

Plaintiff's Rule 60(b) motion for relief from the court's orders of March 11,

2009, is DENIED. The three orders at issue are the interlocutory orders ­ the order granting defendant CNN's motion to dismiss, with leave to amend; the order dismissing 19 defendants for failure to comply with court orders mandating the filing of proofs of service of the summons and complaint; and the order denying plaintiff's request for relief from General Order 45. Rule 60(b) does not provide relief from judgments, orders, or proceedings that are not final decisions within the meaning of 28 U.S.C. § 1291, which generally cannot be appealed immediately. See School Dist. No. 5 v. Lundgren, 259 F.2d 101, 104 (9th Cir. 1958); see also United States v. Martin, 226 F.3d 1042, 1048 n.8 (9th Cir. 2000) (Rule 60(b) . . . applies only to motions attacking final, appealable orders"). The addition of the qualifying word `final' emphasizes the character of the judgments, orders or proceedings from which Rule 60(b) affords relief; and hence interlocutory judgments are not brought within the restrictions of the rule, but rather they are left subject to the complete power of the court rendering them to afford such relief from them as justice requires. Fed. R. Civ. P. 60(b), Advisory Committee Notes, 1946 Amendment. Nevertheless, the trial court has the inherent power to reconsider, set aside, or amend interlocutory orders at any time prior to entry of a final judgment. Lundgren, 259 F.2d at 104. In this judicial district, Civil Local Rule 7-9 provides a procedure whereby a litigant dissatisfied with an interlocutory ruling may seek leave to file a motion for reconsideration in this court. However, "[n]o party may notice a motion for reconsideration without first obtaining leave of Court to file the motion." Civ. L.R. 7-9(a). Accordingly, because plaintiff's motion is not properly brought under Rule 60(b), and because plaintiff did not seek leave of court to file a motion for reconsideration, the motion must be DENIED. 4. Plaintiff's motion to recuse the undersigned is DENIED. Plaintiff bases her

United States District Court

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For the Northern District of California

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motion on 28 U.S.C. § 144, which provides: 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 2

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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. 28 U.S.C. § 144. The judge against whom a disqualification motion is brought may pass on its sufficiency. Berger v. United States, 255 U.S. 22, 32-33 (1921). To be sufficient, the motion must state facts which, if true, fairly support the allegation of bias or prejudice which stems from an extrajudicial source and which may prevent a fair decision. See United States v. Azhocar, 581 F.2d 735, 740-41 (1978). The Court DENIES plaintiff's motion to disqualify, because she has not shown that the undersigned bears a a deep-seated favoritism or antagonism that would make fair judgment impossible. See Liteky v. United States, 510 U.S. 540, 555 (1994). Not every bias or prejudice against a party will support recusal under § 144, see id. at 550-52, as plaintiff was clearly advised in the December 19, 2008 order denying her previous motion to disqualify Judge Armstrong from presiding over this action. Plaintiff's grievance relates generally to adverse rulings by this Court and her perception that she is being treated unfairly. In her affidavit, plaintiff asserts that the undesigned "directly participated in a conspiracy with Defendants of my case and Judge Saundra Brown Armstrong to create `procedural defects' such as `lack of service' through fraud, deceit, violations of due process and discriminatory treatment to my case to dismiss by Complaint with prejudice." Plaintiff makes three specific assertions of bias, but none of these provides grounds for which a request for recusal could be granted. First, she claims that the "unlawful alteration" of the docket caused her failure to serve John Ashcroft, and that the purpose of the "conspiracy" among the undersigned and the defendants was "to create `lack of service of process' on Ashcroft." The court has already addressed this issue, above, and in the March 11, 2009, Order of Dismissal. Second, plaintiff asserts that the court's order conditioning the granting of plaintiff's request to file documents through the court's Electronic Case Filing ("ECF") system on plaintiff's agreeing in writing to comply with all rules and orders of the court constituted discrimination against her as a pro se plaintiff because the court does not require this same 3

United States District Court

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For the Northern District of California

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assurance of attorneys who are provided access to ECF as a matter of right. This requirement ­ which is imposed on every pro se plaintiff who requests leave to file documents through the ECF system ­ does not provide evidence of bias. The court is fully within its rights to require compliance with court rules and orders. Plaintiff's third argument is that the undersigned "fraudulently misrepresented the service rule of California Code of Civil Procedures [sic]" in the March 11, 2009 Order of Dismissal. Adverse judicial rulings alone almost never constitute a valid basis for a bias or partiality motion. Id. at 555-56; see also Berger, 255 U.S. at 34 (adverse rulings alone cannot constitute the necessary showing of bias or prejudice).

United States District Court

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For the Northern District of California

IT IS SO ORDERED. Dated: April 16, 2009 ______________________________ PHYLLIS J. HAMILTON United States District Judge

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