Sepehry-Fard v. Select Portfolio Servicing Inc.,

Filing 7

ORDER denying 3 Motion for Recusal; denying 4 Administrative Motion to Vacate Void Order; denying 5 Mandatory Request for Judicial Notice. Signed by Judge Edward J. Davila on 8/4/2016. (ejdlc1S, COURT STAFF) (Filed on 8/4/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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IN RE:

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Case No. 5:16-mc-80109-EJD

FAREED SEPEHRY-FARD,

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Debtor.
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FAREED SEPEHRY-FARD,

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Re: Dkt. Nos. 3, 4, 5

Plaintiff,

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United States District Court
Northern District of California

ORDER DENYING “MOTION TO
RECUSE;” DENYING
“ADMINISTRATIVE MOTION TO
VACATE VOID ORDER;” DENYING
“REQUEST FOR MANDATORY
JUDICIAL NOTICE”

v.

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SELECT PORTFOLIO SERVICING INC.,

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Defendant.

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Debtor and Appellant Fareed Sepehry-Fard (“Debtor”) sought to proceed in forma pauperis

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with respect to an appeal from an order issued by the United States Bankruptcy Court. Debtor

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filed a motion under 28 U.S.C. § 1915(a) in the United States Bankruptcy Appellate Panel for the

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Ninth Circuit, which transferred the motion to this court. The matter was then referred to the

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undersigned for general duty review, as was denied. Dkt. No. 2.
Now before the court are: (1) a document entitled “Debtor’s Motion to Recuse - Bias or

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Prejudice,” (2) another document entitled “Administrative Motion to Vacate Void Order,” and (3)

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a document entitled “Plaintiff’s Request for Mandatory Judicial Notice.” Dkt. Nos. 3, 4, 5. These

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matters are nearly identical to documents that Debtor filed in another case1 and, like those, are

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suitable for decision without a hearing. Having reviewed them, the court finds, concludes and

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orders in the same manner it did previously:

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The other case is Sepehry-Fard v. Select Portfolio Servicing, Inc., Case No. 5:16-mc-80112-EJD.
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Case No.: 5:16-mc-80109-EJD
ORDER DENYING “MOTION TO RECUSE;” DENYING “ADMINISTRATIVE MOTION TO
VACATE VOID ORDER;” DENYING “REQUEST FOR MANDATORY JUDICIAL NOTICE”

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The “Motion to Recuse” appears to arise under 28 U.S.C. § 455. According to that

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statute, a district judge has a duty to disqualify himself “in any proceeding in which his

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impartiality might reasonably be questioned” or where “he has a personal bias or prejudice

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concerning a party, or personal knowledge of disputed evidentiary facts concerning the

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proceeding.” 28 U.S.C. § 455(a), (b)(1).

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2.

Notably, the standard employed to determine whether recusal is appropriate under §

455 is an objective one. Clemens v. United States Dist. Ct., 428 F.3d 1175, 1178 (9th Cir. 2005).

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It asks “‘whether a reasonable person with knowledge of all the facts would conclude that the

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judge’s impartiality might reasonably be questioned.’” Herrington v. Cnty. of Sonoma, 834 F.2d

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1488, 1502 (9th Cir. 1988) (quoting United States v. Nelson, 718 F.2d 315, 321 (9th Cir. 1983)).

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United States District Court
Northern District of California

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“The ‘reasonable person’ in this context means a ‘well-informed, thoughtful observer,’ as opposed

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to a ‘hypersensitive or unduly suspicious person.’” Clemens, 428 F.3d at 1178 (citing In re

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Mason, 916 F.2d 384, 386 (7th Cir. 1990).

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3.

“Since a federal judge is presumed to be impartial, the party seeking

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disqualification bears a substantial burden to show that the judge is biased.” Torres v. Chrysler

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Fin. Co., No. C 07-00915 JW, 2007 U.S. Dist. LEXIS 83154, at *4, 2007 WL 3165665 (N.D. Cal.

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Oct. 25, 2007) (citing Reiffin v. Microsoft Corp., 158 F. Supp. 2d 1016, 1021-22 (N.D. Cal.

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2001)). Indeed, “[f]ederal judges are obligated not to recuse themselves where there is no reason

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to question their impartiality.” New York City Housing Develop. Corp. v. Hart, 796 F.2d 976,

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980 (7th Cir. 1986).

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4.

As the court understands it, Debtor’s motion is based on three primary allegations.

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First, he asserts the undersigned was “bribed” and was disqualified from determining whether his

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proposed action was barred by the prefiling order because of some purported partnership or

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conspiracy with Judge Lucy H. Koh “to aid and abet Defendants/pretender lenders/alleged

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creditors to continue to steal monies and properties from Debtor.” This speculative allegation is

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not sufficient to justify recusal under § 455. See Clemens, 428 F.3d at 1178-79 (holding that

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Case No.: 5:16-mc-80109-EJD
ORDER DENYING “MOTION TO RECUSE;” DENYING “ADMINISTRATIVE MOTION TO
VACATE VOID ORDER;” DENYING “REQUEST FOR MANDATORY JUDICIAL NOTICE”

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“[r]umor, speculation, beliefs, conclusions, innuendo, suspicion, opinion, and similar non-factual

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matters” are not ordinarily sufficient to require a § 455 recusal). Nor is the fact that Debtor

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attempted to sue another judge of this court. See id. (holding that recusal is not required because

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of “mere familiarity with the defendant(s)”).

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5.

Similarly, Debtor cannot seek the undersigned’s recusal based on rulings made in

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prior actions involving Debtor. To be sure, “[b]ias under 28 U.S.C. § 455 must derive from

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extrajudicial sources.” Herrington, 834 F.2d at 1502; accord Liteky v. United States, 510 U.S.

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540, 555 (1994) (holding that judicial rulings alone are not a valid basis for a recusal motion as

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they do not establish reliance on an extrajudicial source).

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6.

Furthermore, there is no legal basis for Debtor’s theory that the undersigned “gave

United States District Court
Northern District of California

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tacit agreement” of a “lifetime bar” from presiding over cases involving Debtor. Instead,

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“[d]isqualification is case-specific; the statute does not put a whole subject matter out of bounds to

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a judge with no concrete investment in a particular dispute.” Guardian Pipeline, L.L.C. v. 950.80

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Acres of Land, 525 F.3d 554, 557 (7th Cir. 2008).

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Thus, for the reasons explained, the “Motion to Recuse” is DENIED. The “Administrative

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Motion to Vacate” is also DENIED because it is based on the same disqualification theory. The

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“Request for Mandatory Judicial Notice” is DENIED because the documents attached to that

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motion are not the proper subjects for such relief.

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IT IS SO ORDERED.
Dated: August 4, 2016
______________________________________
EDWARD J. DAVILA
United States District Judge

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Case No.: 5:16-mc-80109-EJD
ORDER DENYING “MOTION TO RECUSE;” DENYING “ADMINISTRATIVE MOTION TO
VACATE VOID ORDER;” DENYING “REQUEST FOR MANDATORY JUDICIAL NOTICE”