Liao v. United States of America et al

Filing 59

ORDER ORDER GRANTING PLAINTIFF'S EMERGENCY MOTION FOR RELIEF AND REQUEST FOR RECUSAL re 51 . Signed by Judge Claudia Wilken on 1/6/2012. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 1/6/2012)

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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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Plaintiff,

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United States District Court
For the Northern District of California

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No. C 11-2494 CW

v.
UNITED STATES OF AMERICA, et al.,

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Defendants.

ORDER GRANTING
PLAINTIFF'S
EMERGENCY MOTION
FOR RELIEF AND
REQUEST FOR
RECUSAL (Docket
No. 51)

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________________________________/

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Plaintiff Wanxia Liao has filed an emergency motion for
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relief from the Court's scheduling order, Docket No. 23, and seeks
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reconsideration of the Court's denial of her motion for recusal.
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Having considered Plaintiff's submissions, the Court grants the
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motion.
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Plaintiff's request for an extension of time to file her
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opposition to the United States' motion to declare her a vexatious
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litigant is GRANTED.

To allow time for Plaintiff to receive this

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order by mail at her Toronto address, the new deadline for
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Plaintiff's opposition to the United States' motion is twenty-one
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days from the date of this Order.

Plaintiff must serve her

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opposition on the United States and mail it to this Court by that
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date.
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Plaintiff, who is pro se, has efiled several documents,

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although she has never requested permission to use the Court's

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electronic filing system in this case.

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Order No. 45, Electronic Case Filing, of this Court excludes pro

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se litigants from the Court's electronic filing program unless

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otherwise ordered by the assigned Judge.

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efile in this case, she must submit a motion requesting permission

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to do so.

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files electronically in the future will be stricken from the

United States District Court
For the Northern District of California

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Paragraph III of General

If Plaintiff wishes to

Absent permission to efile, all documents that she

docket.
Plaintiff's motion does not request relief from the January

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3, 2012 deadline to file a response to Defendants Cable News

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Network's and Dow Jones & Company, Inc's pending motions to

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dismiss.

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mention the pending motions to dismiss, although it indicates that

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she received the Order setting the January 3, 2012 deadline.

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motions were filed and served on Plaintiff by mail on December 8,

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2011, and then refiled and served on Plaintiff by mail again on

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December 14, 2011, after the case was reassigned to the

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undersigned.

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Docket Nos. 47 and 49.

Plaintiff's motion does not

The

Nonetheless, the Court extends Plaintiff's deadline to

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respond to Defendants Cable News Network's and Dow Jones &

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Company, Inc's pending motions to dismiss, Docket Nos. 47 and 49.

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Plaintiff shall mail her consolidated response within twenty-one

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days from the date of this order.

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claims will be dismissed for failure to prosecute.

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If she does not do so, these

Plaintiff also seeks reconsideration of the Court's denial of
her request for recusal based on bias or prejudice.
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The Court's

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December 23, 2011 order did not address Plaintiff's argument that

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recusal is required because she has sued the undersigned in a

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related case.
In this action, Plaintiff has alleged, among other causes of

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action, a "claim" under Federal Rule of Civil Procedure 60(b) for

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relief from judgment in Liao v. Ashcroft, 08-cv-2776 (Liao).

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Liao, the undersigned was named as one of numerous defendants.

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March 11, 2009, the Honorable Phyllis J. Hamilton of this Court

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dismissed Plaintiff's claims against the undersigned and others

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United States District Court
For the Northern District of California

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for failure to serve process, pursuant to Federal Rules of Civil

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Procedure 4.

Plaintiff sought to appeal the order, but was

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unsuccessful.

Here Plaintiff claims that the Ninth Circuit

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fraudulently rejected her appeal.

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writ of mandamus pursuant to 28 U.S.C. § 1361, requiring officials

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from the Department of Justice to investigate, among other

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individuals, Judge Hamilton, to determine whether she engaged in

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fraud or other unlawful conduct with respect to her handling of

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Liao.

In
On

In addition, Plaintiff seeks a

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Tile 28 U.S.C. § 455(a) requires any justice, judge, or

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magistrate judge of the United States to disqualify him or herself

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in any proceeding in which his or her "impartiality might

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reasonably be questioned."

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courts applying § 455(a) must determine "whether a reasonable

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person with knowledge of all the facts would conclude that the

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judge's impartiality might reasonably be questioned."

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U.S. Dist. Court for Central Dist. of California, 428 F.3d 1175,

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1178 (9th Cir. 2005).

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person perceives a significant risk that the judge will resolve

The Ninth Circuit has explained that

Clemens v.

"Section 455(a) asks whether a reasonable

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the case on a basis other than the merits.

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"means a well-informed, thoughtful observer," as opposed to a

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"hypersensitive or unduly suspicious person."

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quotation marks omitted).

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case seeks to revive her claims against the undersigned, and

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Plaintiff did in fact sue the undersigned, a reasonable person

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could perceive a risk of bias by the undersigned in adjudicating

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the merits of this case.

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reasonable person the legal knowledge necessary to understand that

Id.

The standard

Id. (internal

Because Plaintiff's complaint in this

The Court declines to impute to a

United States District Court
For the Northern District of California

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Plaintiff's claims in this action lack merit.

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Plaintiff's request for reconsideration is granted and the

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undersigned recuses herself from this action.

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reassign the case, but shall not assign it to Judge Hamilton or

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Judge Alsup, who have been named as Defendants in this action.

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Therefore,

The clerk shall

IT IS SO ORDERED.

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Dated: 1/6/2012

CLAUDIA WILKEN
United States District Judge

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