Bank of America, NA v. Richards et al

Filing 15

ORDER by Judge Claudia Wilken denying 9 Motion for Recusal. ; denying 12 Motion to Vacate; CERTIFICATE OF SERVICE as to MARY C. RICHARDS and GREGORY DAVID FRANCESCO GIORGI (cwlc2, COURT STAFF) (Filed on 4/15/2010)

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. MARY C. RICHARDS and GREGORY DAVID FRANCESCO GIORGI, Defendants. / BANK OF AMERICA, N.A., Plaintiff, No. C 10-01062 CW ORDER DENYING DEFENDANTS' MOTION FOR RECUSAL AND MOTION TO VACATE ORDER RELATING CASES (Docket Nos. 9 and 12) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

On March 17, 2010, Defendants Mary C. Richards and Gregory David Francesco Giorgi filed a Motion for Recusal of a Judicial Officer, pursuant to 28 U.S.C. § 455(b)(4). Thereafter, Defendants

moved to vacate the Court's order relating this action to their prior cases, asserting the same arguments contained in their motion for recusal. Under 28 U.S.C. § 455(b)(4), judges must recuse themselves if they have "a financial interest in the subject matter in controversy or in a party to the proceeding." The judge to whom a

motion under § 455 is addressed decides whether recusal is necessary. Bernard v. Coyne, 31 F.3d 842, 843 (9th Cir. 1994). See United States v.

Judges need not take allegations as true.

Balistrieri, 779 F.2d 1191, 1202 (7th Cir. 1985); cf. United States

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

v. Azhocar, 581 F.2d 735, 740 (9th Cir. 1978) (finding bare allegation insufficient to sustain disqualification under 28 U.S.C. § 144). Defendants allege that the undersigned owns "private investments in the banking industry." Mot. at 1. However, they

present no evidence explaining why they believe this to be true. Even if it were, it would not support a claim of a financial interest in the subject matter of the proceeding or a party, such as Bank of America. Accordingly, Defendants' motion for recusal

(Docket No. 9) and motion to vacate the related case order (Docket No. 12) are DENIED. IT IS SO ORDERED.

Dated: April 15, 2010

CLAUDIA WILKEN United States District Judge

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

BANK OF AMERICA, NA, Plaintiff, v. RICHARDS, et al., Defendants. /

Case Number: CV10-01062 CW CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on April 15, 2010, I SERVED a true and correct copy of the attached, by placing said copy in a postage paid envelope addressed to the persons hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy into an inter-office delivery receptacle located in the Clerk's office.

Mary C. Richards Gregory David Francesco Giorgi 126 Stadium Avenue Mill Valley, CA 94941-3593 Dated: April 15, 2010 Richard W. Wieking, Clerk By: M. Pilotin, Deputy Clerk