Su v. Defense Language Institute Foreign Language Center & POM

Filing 41

ORDER DENYING 34 PLAINTIFFS MOTION FOR RECUSAL. Signed by Judge Edward J. Davila on 9/19/2012. (ejdlc1, COURT STAFF) (Filed on 9/19/2012)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 SAN JOSE DIVISION CASE NO. 5:10-cv-04194 EJD DANTAO SU, 11 ORDER DENYING PLAINTIFF’S MOTION FOR RECUSAL Plaintiff(s), For the Northern District of California United States District Court 10 12 13 v. DEFENSE LANGUAGE INSTITUTE FOREIGN LANGUAGE CENTER, [Docket Item No(s). 34] 14 15 Defendant(s). / 16 17 Presently before the court is a document entitled “Affidavit of Prejudice Peremptory 18 Challenge to Judicial Officer filed by Plaintiff Dantao Su (“Plaintiff”). See Docket Item No. 34. 19 Since peremptory challenges to judicial officers are not recognized in federal court, the court 20 construes Plaintiff’s filing as a motion for recusal under 28 U.S.C. § 144 and 28 U.S.C. § 455.1 21 Notably, this is Plaintiff’s second attempt to recuse the undersigned from presiding over this action. 22 See Docket Item No. 23. This motion will be denied. 23 Under §§ 144 and 455, recusal is appropriate where “a reasonable person with knowledge of 24 all the facts would conclude that the judge’s impartiality might reasonable be questioned.” Yagman 25 v. Republic Ins., 987 F.2d 622, 626 (9th Cir. 1993). Such recusal may rest on either “actual bias or 26 1 27 28 Assuming Plaintiff filed the instant motion pursuant to 28 U.S.C. § 144, this court must pass on the legal sufficiency of the affidavit in the first instance. See Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1388 (“Only after the legal sufficiency of the affidavit is determined does it become the duty of the judge to ‘proceed no further’ in the case.”). 1 CASE NO. 5:10-cv-04194 EJD ORDER DENYING PLAINTIFF’S MOTION FOR RECUSAL 1 the appearance of bias.” Id. A district judge has a duty to disqualify himself “in any proceeding in 2 which his impartiality might reasonably be questioned” or where “he has a personal bias or prejudice 3 concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.” 4 28 U.S.C. § 455(a), (b)(1). However, “[f]ederal judges are obligated not to recuse themselves where 5 there is no reason to question their impartiality.” New York City Housing Develop. Corp. v. Hart 6 796 F.2d 976, 980 (7th Cir. 1986). 7 Here, Plaintiff’s conclusion of bias stems from the court’s statements at a Case Management 8 Conference, during which the court attempted to have this matter proceed by ensuring that service 9 was effected on the United States Attorney. As the Complaint demonstrates, Plaintiff alleges that Defendant is a federal agency, thereby requiring service pursuant to Federal Rule of Civil Procedure 11 For the Northern District of California United States District Court 10 4(i). See Docket Item No. 1, at ¶ 1. Since the court’s perception of proper service stems from the 12 pleadings in this case, the allegations are not sufficient to demonstrate either actual bias or an 13 appearance of bias. Pesnell v. Arsenault, 543 F.3d 1038, 1044 (9th Cir. 2008). 14 15 Accordingly, Plaintiff’s motion for recusal is DENIED. IT IS SO ORDERED. 16 17 Dated: September 19, 2012 EDWARD J. DAVILA United States District Judge 18 19 20 21 22 23 24 25 26 27 28 2 CASE NO. 5:10-cv-04194 EJD ORDER DENYING PLAINTIFF’S MOTION FOR RECUSAL

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