Malasky v. Julian et al

Filing 67

ORDER re: 60 Objection to Order Denying Motion to Disqualify or Recuse filed by Henry Malasky. Signed by Magistrate Judge Donna M. Ryu on 11/06/2018. (dmrlc1, COURT STAFF) (Filed on 11/6/2018)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7
8

HENRY MALASKY,
Plaintiff,

9
10

United States District Court
Northern District of California

11
12

Case No. 16-cv-04102-DMR

v.
SANDRA ESPOSITO, et al.,
Defendants.

ORDER RE: OBJECTION TO ORDER
DENYING MOTION TO DISQUALIFY
OR RECUSE
Re: Dkt. No. 60

13

Pro se Plaintiff Henry Malasky filed a document entitled “Objection Re: Order Denying

14

Motion to Disqualify or Recuse Magistrate Judge Ryu” on October 11, 2018. [Docket No. 60.]

15

Although he does not specify the authority for his objection, Malasky appears to challenge

16

the court’s September 24, 2018 order denying his motion for disqualification or recusal of the

17

undersigned (Docket No. 58). The court construes Malasky’s objection as a motion for leave to

18

file a motion for reconsideration of the September 24, 2018 order pursuant to Local Rule 7-9(a).

19

See Civ. L.R. 7-9(a) (“No party may notice a motion for reconsideration without first obtaining

20

leave of Court to file the motion.”). A motion for reconsideration may be made on one of three

21

grounds: (1) a material difference in fact or law exists from that which was presented to the court,

22

which, in the exercise of reasonable diligence, the party applying for reconsideration did not know

23
24
25
26
27
28

at the time of the order for which reconsideration is sought; (2) the emergence of new material
facts or a change of law; or (3) a manifest failure by the court to consider material facts or
dispositive legal arguments presented before such order. Civ. L.R. 7-9(b)(1)-(3).
Malasky does not present newly-emerged evidence in support of his motion nor does he
suggest that there has been an intervening change in applicable law. Instead, it appears that Local
Rule 7-9(b)(3) governs his motion, because he contends that he based his motion on “at least 6

1

different federal laws: 28 U.S.C. Secs. 47, 144, 292, 294 and 455; and First, Fifth and Fourteenth

2

Amendments,” but the court addressed only 28 U.S.C. §§ 144 and 455 in its order. Mot. 1-2.
Malasky’s motion is without merit. As discussed in the court’s September 24, 2018 order,

3
4

28 U.S.C. § 144 and 28 U.S.C. § 455 govern motions to recuse federal judges. The remaining

5

statutes he cited in his original motion do not provide a basis for disqualification or recusal. 28

6

U.S.C. § 47 provides that “[n]o judge shall hear or determine an appeal from the decision of a case

7

or issue tried by him.” This statute is inapplicable to Malasky’s motion to disqualify because the

8

undersigned is not hearing the case on appeal. 28 U.S.C. § 292 is a statute governing the

9

assignment of district judges to other courts, and 28 U.S.C. § 294 governs the assignment of

10

United States District Court
Northern District of California

11
12

retired justices or judges to active duty. Malasky did not cite any authority to support his claim
that the First, Fifth, or Fourteenth Amendments to the United States Constitution provide a basis
for recusal and/or disqualification in this case.
Malasky also raises for the first time California Code of Civil Procedure section

13
14
15
16
17

170.6(a)(2), which he contends “gives plaintiff an absolute right to disqualify a judge after a
reversal due to plaintiff’s appeal.”1 Mot. 1. This is improper, for “[a] motion for reconsideration
may not be used to raise arguments or present evidence for the first time when they could
reasonably have been raised earlier in the litigation.” Marlyn Nutraceuticals, Inc. v. Mucos
Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (emphasis in original) (quotation

18
omitted). Moreover, Malasky offers no authority supporting his position that section 170.6 applies
19
in federal court. See Harms v. Select Portfolio Servicing, Inc., No. C 16-01585 CW, 2016 WL
20
10935055, at *1 (N.D. Cal. Dec. 16, 2016) (holding that section 170.6 does not apply in federal
21
22

court and construing “motion for peremptory challenge” as a motion for recusal under 28 U.S.C.
§§ 144 and 455).

23
24
25

The remainder of Malasky’s motion seeking reconsideration rehashes his previous attacks
on the court’s December 2016 decision dismissing the first amended complaint. As Malasky has
not satisfied any of the requirements of Local Rule 7-9(b), the court denies Malasky’s motion for

26
27
28

1

Section 170.6(a)(2) sets forth the procedure by which a party or an attorney may move to
disqualify a judge based on prejudice against a party or attorney.
2

FO

ER

H

7
8
9
10
11

United States District Court
Northern District of California

R NIA

yu
______________________________________
na M. R
e DonRyu
Donna
Judg M.
United States Magistrate Judge
RT

6

I

NO

5

Dated: November 6, 2018

ERED

ORD
T IS SO

LI

4

IT IS SO ORDERED.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3

A

3

UNIT
ED

2

RT
U
O

S DISTRICT
TE
C
TA

leave to file a motion for reconsideration.

S

1

N

F
D IS T IC T O
R

C