Liao v. United States of America et al

Filing 56

ORDER by Judge Claudia Wilken denying as moot 31 Motion to Dismiss; 33 Motion to Dismiss; 40 Motion to Dismiss; 41 Motion to Dismiss; 43 Motion to Shorten Time; setting briefing schedule and deadline for Plaintiff to serve process; vacating January 26, 2012 hearing date; and denying 51 Plaintiff's request for an order of recusal. (cwlc3, COURT STAFF) (Filed on 12/23/2011)

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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 WANXIA LIAO, 9 United States District Court For the Northern District of California 10 11 12 No. C 11-2494 CW Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants. 13 14 ________________________________/ 15 16 17 18 19 20 ORDER DENYING AS MOOT DEFENDANTS CNN'S AND DOW JONES' MOTIONS TO DISMISS, DOCKET NOS. 31, 33, 40 and 41, AND THE UNITED STATES' MOTION FOR AN ORDER SHORTENING TIME, DOCKET NO. 43; SETTING BRIEFING SCHEDULE AND DEADLINE FOR PLAINTIFF TO SERVE PROCESS; VACATING JANUARY 26, 2012 HEARING DATE; and DENYING PLAINTIFF'S REQUEST FOR AN ORDER OF RECUSAL, DOCKET NO. 51 21 22 In this action, Plaintiff Wanxia Liao has brought suit 23 against numerous governmental and non-governmental Defendants. On 24 November 7, 2011, Defendants Cable News Network (CNN) and Dow 25 Jones & Company, Inc, erroneously sued as The Wall Street Journal, 26 moved to dismiss Liao's claims. 27 Subsequently, Liao submitted an amended complaint, and CNN and Dow 28 Jones moved to dismiss claims against them alleged in that Docket Nos. 31 and 33. 1 complaint. 2 action was reassigned to the undersigned and all matters then 3 scheduled for hearing, including the motions to dismiss, were 4 vacated. 5 motions to dismiss the claims in the amended complaint. 6 Nos. 47 and 49. 7 claims in the original complaint are denied as moot, as are the 8 first two motions to dismiss claims in the amended complaint. 9 Docket Nos. 31, 33, 40 and 41. United States District Court For the Northern District of California 10 Docket Nos. 40 and 41. On December 12, 2011, the On December 14, 2011 CNN and Dow Jones refiled their Docket In light of the above, the motions to dismiss Because CNN's and Dow Jones' remaining motions to dismiss are 11 nearly identical to each other and the arguments were included in 12 their earlier motions to dismiss, Plaintiff shall file and serve a 13 consolidated opposition to both motions, not to exceed twenty-five 14 pages, on or before January 3, 2012. 15 an opposition by that deadline, the claims will be dismissed for 16 failure to prosecute. 17 submit her opposition, not exceed twenty-five pages, to the United 18 States' motion to declare her a vexatious litigant. 19 If Plaintiff does not file On December 27, 2011, Plaintiff shall also On or before January 10, 2012, CNN and Dow Jones may file a 20 consolidated reply, not to exceed fifteen pages, and the United 21 States may file a reply, not to exceed fifteen pages. 22 The Court will consider all three motions on the papers. 23 January 26, 2012 hearing dates are vacated, and the United States' 24 motion for an order shortening time is denied as moot. 25 No. 43. It also appears that Plaintiff has not properly served 26 The Docket 27 summons, the complaint and the amended complaint on Defendants 28 pursuant to Federal Rule of Civil Procedure 4. 2 CNN and Dow Jones, 1 unlike the United States, have waived service of process by 2 appearing and litigating the action without raising the issue. 3 Within thirty days, Plaintiff shall serve all Defendants, except 4 for CNN and Dow Jones, pursuant to Rule 4, and submit proof of 5 service to the Court, otherwise her claims against those 6 7 Defendants will be dismissed for failure to prosecute. Finally, on December 16, 2011, Plaintiff filed a "Declaration 8 9 under § 144 of USC Bias or Prejudice of Judge to Disqualify United States District Court For the Northern District of California 10 Claudia Wilken." 11 The filing appears to be a request for an order of recusal. 12 Title 28 U.S.C. § 455(a) states, "Any justice, judge, or 13 magistrate judge of the United States shall disqualify himself in 14 any proceeding in which his impartiality might reasonably be 15 questioned." Section 455(b) enumerates several additional 16 17 18 circumstances in which a judge shall disqualify him or herself from a proceeding, including, where the judge has a personal bias 19 or prejudice concerning a party. 20 The standard applied under § 455 includes an objective test--"a 21 judge must recuse in any case where 'his impartiality might 22 reasonably be questioned'"--and a subjective test, requiring the 23 24 See, e.g., 8 U.S.C. § 455(b)(1). judge "'to determine whether he can be truly impartial when trying the case.'" United States v. Spangle, 626 F.3d 488, 495-96 (9th 25 26 Cir. 2010) (quoting § 455(a) and United States v. Holland, 519 27 F.3d 909, 911-12 (9th Cir. 2008)). 28 be questioned reasonably solely on the basis of a party's 3 A judge's impartiality cannot 1 dissatisfaction with the court's prior ruling. Such 2 dissatisfaction is the gist of Plaintiff's argument here. The 3 undersigned is able to be impartial in presiding over this case. 4 Having considered Plaintiff's request, the Court denies it. 5 IT IS SO ORDERED. 6 7 Dated: 12/23/2011 8 CLAUDIA WILKEN United States District Judge 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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