Rosas v. USFastCash et al

Filing 33

ORDER ADDRESSING NOTICE OF POTENTIAL APPEARANCE OF IMPARTIALITY AND POSSIBLE BASIS FOR RECUSAL PURSUANT TO 28 U.S.C. § 455(a). Signed by Judge Claudia Wilken on 10/16/2012. (ndr, COURT STAFF) (Filed on 10/16/2012)

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3
4
5
6

KATHRINE ROSAS, on behalf of
herself and all others similarly
situated, and as Private Attorney
General,
Plaintiff,

7
8
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

v.
USFASTCASH; AMERILOAN; UNITED
CASH LOANS; PREFERRED CASH LOANS;
ONE CLICK CASH; MIAMI TRIBE OF
OKLAHOMA, also known as MIAMI
NATION OF OKLAHOMA; MIAMI NATION
ENTERPRISES, also known as MNE;
SANTEE SIOUX NATION; SFS, INC.;
AMG SERVICES, INC.; AMG CAPITAL
MANAGEMENT, LLC; BLACK CREEK
CORPORATION; BLACK CREEK CAPITAL,
LLC; BROADMOOR CAPITAL PARTNERS;
HALLINAN CAPITAL CORPORATION;
LEADFLASH CONSULTING, LLC; LEVEL
5 MOTORSPORTS, LLC; N.M. SERVICE
CORP., formerly known as NATIONAL
MONEY SERVICE; PARTNER WEEKLY
LLC; PARK 269, LLC; ST. CAPITAL,
LLC; THE MUIR LAW FIRM, LLC;
TRIBAL FINANCIAL SERVICES; WEST
FUND, LLC; SCOTT’S TRIBAL
ENTITIES; SCOTT A. TUCKER; BLAINE
A. TUCKER; CHARLES M. HALLINAN;
CAROLYN HALLINAN; DON E. BRADY;
ROBERT D. CAMPBELL; and TIMOTHY
J. MUIR,
Defendants.
________________________________/

No. C 12-5066 CW
ORDER ADDRESSING
NOTICE OF
POTENTIAL
APPEARANCE OF
IMPARTIALITY AND
POSSIBLE BASIS FOR
RECUSAL PURSUANT
TO 28 U.S.C.
§ 455(a) (Docket
Nos. 22 in 125066, 20 in 125067)

1
2
3

AMY LYNNE BAILLIE, and KATHRINE
ROSAS, on behalf of themselves
and all others similarly
situated, and as Private Attorney
General,

4
5
6
7
8
9

United States District Court
For the Northern District of California

10
11
12
13
14
15

Plaintiffs,
v.
ACCOUNT RECEIVABLE MANAGEMENT OF
FLORIDA, INC., formerly known as
UNITED LEGAL CORPORATION; MTE
FINANCIAL SERVICES, INC.;
INSTANTCASHLOANTILLPAYDAY.COM;
PROCESSING SOLUTIONS, LLC;
INSTANT CASH USA, INC.; FIRST
EAST, INC.; RIO RESOURCES; THOMAS
ASSENZIO; JOLENE HART ASSENZIO;
CHARLES HALLINAN; CAROLYN
HALLINAN; CLK MANAGEMENT, LLC;
WEB CASH NETWORK, LLC, doing
business as RIO RESOURCES; DEXTER
EMERALD GROUP, LLC; AMG SERVICES,
INC.; SCOTT TUCKER; BLAINE
TUCKER; PROFESSIONAL RECOVERY
SYSTEMS; CHECK STOP UTAH, LLC;
and EAST FINCHEY, LLC,
Defendants.

16
17

No. C 12-5067 CW

________________________________/
On October 11, 2012, Attorney Daniel J. O’Rielly, who

18
represents Defendants Thomas Assenzio, Charles M. Hallinan and
19
Hallinan Capital Corporation in the above-captioned cases, filed a
20
notice of potential for appearance of impartiality and possible
21
basis for recusal pursuant to 28 U.S.C. § 455(a).

Docket Nos. 22

22
in 12-5066, 20 in 12-5067.

In the notice, Attorney O’Rielly

23
stated
24
25
26
27

Mr. O’Rielly and his wife are both personal friends of
Chief Judge Wilken’s stepdaughter and son-in law. Mr.
O’Rielly and his wife have socialized with Chief Judge
Wilken and her husband on some occasions in recent years
at social engagements hosted by Chief Judge Wilken’s
stepdaughter and son-in law.

28
2

1

Notice, 2.

2

that these circumstances raise no reasonable question as to the

3

undersigned’s impartiality.

4

5067).

5

Plaintiffs Amy Lynne Bailie and Kathrine Rosas respond

Docket Nos. 25 in 12-5066, 23 in 12-

In “the absence of a legitimate reason to recuse himself, a

6

judge should participate in cases assigned.”

7

Holland, 519 F.3d 909, 912 (9th Cir. 2008)(internal quotations and

8

citations omitted).

9

proceeding in which his impartiality might reasonably be

United States v.

However, a judge shall recuse himself “in any

United States District Court
For the Northern District of California

10

questioned.”

11

judge is required to recuse himself only when a reasonable person

12

with knowledge of all the facts would conclude that the judge’s

13

impartiality might reasonably be questioned.”

14

Winston, 613 F.2d 221, 222 (9th Cir. 1980).

15

person’ is not someone who is ‘hypersensitive or unduly

16

suspicious,’ but rather is a ‘well-informed, thoughtful observer.’

17

Holland, 519 F.3d at 913 (quoting In re Mason, 916 F.2d 384, 386

18

(7th Cir. 1990)).

19

28 U.S.C. § 455(a).

Under this standard, “the trial

United States v.

“The ‘reasonable

A well-informed and thoughtful observer would not reasonably

20

question a judge’s impartiality toward a party because the judge

21

was casually acquainted with the party’s counsel as alleged here.

22

See United States v. Murphy, 768 F.2d 1518, 1537-1538 (7th Cir.

23

1985) (“In today’s legal culture friendships among judges and

24

lawyers are common.

25

desirable.

26

legal community.

27

judges and lawyers may improve the quality of legal decisions.

28

. . . Many courts therefore have held that a judge need not

They are more than common; they are

A judge need not cut himself off from the rest of the
Social as well as official communications among

3

1

disqualify himself just because a friend--even a close friend--

2

appears as a lawyer.”) (collecting cases); see also Sewer Alert

3

Committee v. Pierce County, 791 F.2d 796, 798 (9th Cir. 1986)

4

(upholding denial of recusal motion where the presiding judge had

5

a friendship with the defendants); Carolina Cas. Ins. Co. v. Jones

6

Helsley, PC, 2010 U.S. Dist. LEXIS 144464, at *2, 5-6 (E.D. Cal.)

7

(denying recusal motion where one counsel of record was the

8

brother of an acquaintance of the judge and had socialized with

9

the judge on several occasions).

United States District Court
For the Northern District of California

10
11
12

Accordingly, the Court concludes that recusal is not
warranted under these circumstances.
IT IS SO ORDERED.

13
14
15

Dated: 10/16/2012

CLAUDIA WILKEN
United States District Judge

16
17
18
19
20
21
22
23
24
25
26
27
28
4