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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1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 WANXIA LIAO, 8 Plaintiff, 9 United States District Court For the Northern District of California 10 No. C 11-2494 CW v. UNITED STATES OF AMERICA, et al., 11 Defendants. ORDER GRANTING PLAINTIFF'S EMERGENCY MOTION FOR RELIEF AND REQUEST FOR RECUSAL (Docket No. 51) 12 13 ________________________________/ 14 Plaintiff Wanxia Liao has filed an emergency motion for 15 relief from the Court's scheduling order, Docket No. 23, and seeks 16 reconsideration of the Court's denial of her motion for recusal. 17 Having considered Plaintiff's submissions, the Court grants the 18 motion. 19 Plaintiff's request for an extension of time to file her 20 opposition to the United States' motion to declare her a vexatious 21 litigant is GRANTED. To allow time for Plaintiff to receive this 22 order by mail at her Toronto address, the new deadline for 23 Plaintiff's opposition to the United States' motion is twenty-one 24 days from the date of this Order. Plaintiff must serve her 25 opposition on the United States and mail it to this Court by that 26 date. 27 28 1 Plaintiff, who is pro se, has efiled several documents, 2 although she has never requested permission to use the Court's 3 electronic filing system in this case. 4 Order No. 45, Electronic Case Filing, of this Court excludes pro 5 se litigants from the Court's electronic filing program unless 6 otherwise ordered by the assigned Judge. 7 efile in this case, she must submit a motion requesting permission 8 to do so. 9 files electronically in the future will be stricken from the United States District Court For the Northern District of California 10 11 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 12 3, 2012 deadline to file a response to Defendants Cable News 13 Network's and Dow Jones & Company, Inc's pending motions to 14 dismiss. 15 mention the pending motions to dismiss, although it indicates that 16 she received the Order setting the January 3, 2012 deadline. 17 motions were filed and served on Plaintiff by mail on December 8, 18 2011, and then refiled and served on Plaintiff by mail again on 19 December 14, 2011, after the case was reassigned to the 20 undersigned. 21 Docket Nos. 47 and 49. Plaintiff's motion does not The Nonetheless, the Court extends Plaintiff's deadline to 22 respond to Defendants Cable News Network's and Dow Jones & 23 Company, Inc's pending motions to dismiss, Docket Nos. 47 and 49. 24 Plaintiff shall mail her consolidated response within twenty-one 25 days from the date of this order. 26 claims will be dismissed for failure to prosecute. 27 28 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. 2 The Court's 1 December 23, 2011 order did not address Plaintiff's argument that 2 recusal is required because she has sued the undersigned in a 3 related case. In this action, Plaintiff has alleged, among other causes of 5 action, a "claim" under Federal Rule of Civil Procedure 60(b) for 6 relief from judgment in Liao v. Ashcroft, 08-cv-2776 (Liao). 7 Liao, the undersigned was named as one of numerous defendants. 8 March 11, 2009, the Honorable Phyllis J. Hamilton of this Court 9 dismissed Plaintiff's claims against the undersigned and others 10 United States District Court For the Northern District of California 4 for failure to serve process, pursuant to Federal Rules of Civil 11 Procedure 4. Plaintiff sought to appeal the order, but was 12 unsuccessful. Here Plaintiff claims that the Ninth Circuit 13 fraudulently rejected her appeal. 14 writ of mandamus pursuant to 28 U.S.C. § 1361, requiring officials 15 from the Department of Justice to investigate, among other 16 individuals, Judge Hamilton, to determine whether she engaged in 17 fraud or other unlawful conduct with respect to her handling of 18 Liao. In On In addition, Plaintiff seeks a 19 Tile 28 U.S.C. § 455(a) requires any justice, judge, or 20 magistrate judge of the United States to disqualify him or herself 21 in any proceeding in which his or her "impartiality might 22 reasonably be questioned." 23 courts applying § 455(a) must determine "whether a reasonable 24 person with knowledge of all the facts would conclude that the 25 judge's impartiality might reasonably be questioned." 26 U.S. Dist. Court for Central Dist. of California, 428 F.3d 1175, 27 1178 (9th Cir. 2005). 28 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 3 1 the case on a basis other than the merits. 2 "means a well-informed, thoughtful observer," as opposed to a 3 "hypersensitive or unduly suspicious person." 4 quotation marks omitted). 5 case seeks to revive her claims against the undersigned, and 6 Plaintiff did in fact sue the undersigned, a reasonable person 7 could perceive a risk of bias by the undersigned in adjudicating 8 the merits of this case. 9 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 10 Plaintiff's claims in this action lack merit. 11 Plaintiff's request for reconsideration is granted and the 12 undersigned recuses herself from this action. 13 reassign the case, but shall not assign it to Judge Hamilton or 14 Judge Alsup, who have been named as Defendants in this action. 15 Therefore, The clerk shall IT IS SO ORDERED. 16 17 18 Dated: 1/6/2012 CLAUDIA WILKEN United States District Judge 19 20 21 22 23 24 25 26 27 28 4

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