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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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WANXIA LIAO,

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United States District Court
For the Northern District of California

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No. C 11-2494 CW

Plaintiff,
v.
UNITED STATES OF AMERICA, et al.,
Defendants.

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________________________________/

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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

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In this action, Plaintiff Wanxia Liao has brought suit

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against numerous governmental and non-governmental Defendants.

On

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November 7, 2011, Defendants Cable News Network (CNN) and Dow

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Jones & Company, Inc, erroneously sued as The Wall Street Journal,

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moved to dismiss Liao's claims.

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Subsequently, Liao submitted an amended complaint, and CNN and Dow

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Jones moved to dismiss claims against them alleged in that

Docket Nos. 31 and 33.

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complaint.

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action was reassigned to the undersigned and all matters then

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scheduled for hearing, including the motions to dismiss, were

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vacated.

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motions to dismiss the claims in the amended complaint.

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Nos. 47 and 49.

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claims in the original complaint are denied as moot, as are the

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first two motions to dismiss claims in the amended complaint.

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Docket Nos. 31, 33, 40 and 41.

United States District Court
For the Northern District of California

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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

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nearly identical to each other and the arguments were included in

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their earlier motions to dismiss, Plaintiff shall file and serve a

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consolidated opposition to both motions, not to exceed twenty-five

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pages, on or before January 3, 2012.

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an opposition by that deadline, the claims will be dismissed for

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failure to prosecute.

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submit her opposition, not exceed twenty-five pages, to the United

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States' motion to declare her a vexatious litigant.

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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

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consolidated reply, not to exceed fifteen pages, and the United

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States may file a reply, not to exceed fifteen pages.

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The Court will consider all three motions on the papers.

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January 26, 2012 hearing dates are vacated, and the United States'

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motion for an order shortening time is denied as moot.

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No. 43.
It also appears that Plaintiff has not properly served

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The

Docket

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summons, the complaint and the amended complaint on Defendants

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pursuant to Federal Rule of Civil Procedure 4.
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CNN and Dow Jones,

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unlike the United States, have waived service of process by

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appearing and litigating the action without raising the issue.

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Within thirty days, Plaintiff shall serve all Defendants, except

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for CNN and Dow Jones, pursuant to Rule 4, and submit proof of

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service to the Court, otherwise her claims against those

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Defendants will be dismissed for failure to prosecute.
Finally, on December 16, 2011, Plaintiff filed a "Declaration

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under § 144 of USC Bias or Prejudice of Judge to Disqualify

United States District Court
For the Northern District of California

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Claudia Wilken."

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The filing appears to be a request for an order

of recusal.

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Title 28 U.S.C. § 455(a) states, "Any justice, judge, or

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magistrate judge of the United States shall disqualify himself in

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any proceeding in which his impartiality might reasonably be

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questioned."

Section 455(b) enumerates several additional

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circumstances in which a judge shall disqualify him or herself
from a proceeding, including, where the judge has a personal bias

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or prejudice concerning a party.

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The standard applied under § 455 includes an objective test--"a

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judge must recuse in any case where 'his impartiality might

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reasonably be questioned'"--and a subjective test, requiring the

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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

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Cir. 2010) (quoting § 455(a) and United States v. Holland, 519

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F.3d 909, 911-12 (9th Cir. 2008)).

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be questioned reasonably solely on the basis of a party's
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A judge's impartiality cannot

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dissatisfaction with the court's prior ruling.

Such

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dissatisfaction is the gist of Plaintiff's argument here.

The

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undersigned is able to be impartial in presiding over this case.

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Having considered Plaintiff's request, the Court denies it.

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IT IS SO ORDERED.
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Dated: 12/23/2011
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CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

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