Reichle et al v. USA, et al

Filing 18

ORDER denying 14 Motion to vacate order; denying 14 Motion to Transfer/Disqualify/Recuse Judge; denying 14 Motion for Hearing. The case is hereby dismissed without prejudice pursuant to Fed. R. Civ. P. 41(b) and Fed. R. Civ. P. 4(m). Signed by Judge Robert N. Chatigny on 9/30/2013. (Rickevicius, L.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
WILLIAM L. REICHLE & RICHARD
E. KELLEY,
Plaintiffs,
V.
UNITED STATES & INTERNAL
REVENUE SERVICE,
Defendants.

:
:
:
:
:
:
:
:
:
:
:

Case No. 3:12-CV-1121(RNC)

RULING AND ORDER
Pending is a motion filed by the pro se plaintiffs seeking
to vacate the order referring the case to Magistrate Judge
Martinez, my recusal, and a hearing on these issues.
14.]

[ECF No.

For reasons that follow, the motion is denied in its

entirety and the case is dismissed without prejudice pursuant to
Rules 4(m) and 41(b) of the Federal Rules of Civil Procedure.
I. Background
Plaintiffs' complaint, filed on August 2, 2012, alleges that
the Internal Revenue Service ("IRS") failed to comply with
certain statutory requirements and agency rules and regulations
when levying money from the plaintiffs' bank accounts.

For

instance, plaintiffs claim that, in connection with the levies,
the IRS failed to provide adequate notice to them, falsified tax
obligations, and levied amounts in excess of the statutory limit,
among other violations.

Plaintiffs state that because their complaint is statutory
in nature, their claims may be heard only by a court of law, not
a court of equity.

In connection with this assertion, they have

filed a "Motion for Court to Establish a Constitutional Law
Court," [ECF No. 3], which asserts that the scope of this Court's
jurisdiction is in violation of Article III of the United States
Constitution.1

1

Plaintiffs' argument concerning jurisdiction appears to be
based on the distinction between law and equity. Although the
distinction between law and equity remains relevant for purposes
of the Seventh Amendment's guarantee of the right to a jury trial
in "suits at common law," the distinction has no bearing on the
types of cases a district court is empowered to hear. As noted
by the D.C. Circuit, shortly after the passage of the Federal
Rules of Civil Procedure:
Only in cases where a timely demand for a jury has been
made and refused does the distinction between law and
equity have any procedural relevance. In all other
cases the court must give the relief to which the
parties are entitled on the facts, applying the rules
of both law and equity as a single body of principles
and precedents.
No doubt it is convenient to refer to some of
these principles and precedents as "law" and to others
as "equity" because they have different historical
origins. Further than that, the idea that equitable
principles supplement and modify the strict logic of
the "law" is part of our legal philosophy and,
therefore, useful in presenting arguments and
distinguishing cases. But the distinction between law
and equity has no procedural significance whatever
except where the right to a jury trial has been
affirmatively denied, after a timely demand, in an
action which historically would be considered as
arising at "law".
Groome v. Steward, 142 F.2d 756 (D.C. Cir. 1944). Plaintiffs'
apparent reliance on the distinction between law and equity is
therefore misplaced.
2

On August 13, 2012, I referred the case to Judge Martinez
for all pretrial matters.

Plaintiffs objected on the ground

that, in the absence of consent, the referral violates their
rights under Fed. R. Civ. P. 73(a) and 28 U.S.C. § 636.
11.]

[ECF No.

The Court overruled the objection, noting that Rule 73

governs trials in front of Magistrate Judges, whereas Rule 72,
which does not require consent, governs pretrial activities.
[ECF No. 12.]
On November 19, 2012, plaintiffs filed the instant motion,
entitled "Demand To Reverse Illegal Order; Demand For Judge To
Recuse Himself; Demand For Immediate Hearing," [ECF No. 14], in
which plaintiffs again argue that the referral exceeds the
jurisdiction and powers of a Magistrate Judge.

The "motion" also

seeks my recusal and a hearing on the ground that I unlawfully
coerced the plaintiffs into accepting the jurisdiction of a
Magistrate Judge.
On December 14, 2012, Magistrate Judge Martinez denied
without prejudice the motion to establish a constitutional law
court, and, on December 16, 2012, issued the following order:
Rule 4(m) of the Federal Rules of Civil Procedure
requires that a defendant must be served within 120
days after the complaint is filed. Rule 4(l) sets forth
the procedure by which a plaintiff must file proof of
service. If a plaintiff fails to meet the 120-day
deadline, Rule 4(m) provides that the court, after
giving notice to the plaintiff, must dismiss the action
without prejudice if the plaintiff does not show good
cause for the failure. More than 120 days have elapsed
since the complaint was filed, and plaintiffs have not
3

filed proof of service of the complaint. Plaintiffs
shall file a memorandum on or before 1/4/2013 showing
why this action should not be dismissed as a result.
[ECF No 16.]

In response, plaintiffs stated that they would

refuse to serve the defendants because the Court lacks
jurisdiction to hear the case, and that this action can proceed
on an ex parte basis. [ECF No. 17].2

As of this date, plaintiffs

still have not served their complaint or filed a memorandum in
accordance with the December 16 order.
II. Discussion
Dealing first with plaintiffs' "demand" that I recuse
myself, the applicable statute, 28 U.S.C. § 455(a), provides:
"Any justice, judge or magistrate judge of the United States
shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned."

Under this

statute, disqualification is required when "an objective,
disinterested observer fully informed of the underlying facts
[would] entertain significant doubt that justice would be done
absent recusal."
Cir. 2008).

United States v. Carlton, 534 F.3d 97, 100 (2d

If this objective standard is not met,

disqualification is prohibited.

Aguinda v. Texas, Inc., 241 F.3d

194, 201 (2d Cir. 2001).
Plaintiffs appear to argue that recusal is warranted because

2

Plaintiffs cite no authority, and none has been found, for
the proposition that a court may proceed on ex parte basis when
dealing with a challenge to the Court's jurisdiction.
4

of my order referring the case the Judge Martinez.

Judicial

rulings rarely constitute a valid basis for a recusal motion.
See Liteky v. United States, 510 U.S. 540, 555 (1994).

To

provide support for such a motion, a judge’s rulings must display
a high degree of antagonism making fair judgment impossible.

Id.

My referral of the case to Judge Martinez does not reflect any
antagonism toward the plaintiffs.
the norm.

In fact, such referrals are

Therefore, recusal is prohibited.

Turning to the plaintiffs' request that I "reverse" the
order referring the case to Judge Martinez, plaintiffs continue
to argue that the referral was invalid because it was done
without their consent.

Plaintiffs' argument would be correct if

the basis for the referral were 28 U.S.C. § 636(c); however, the
referral was made pursuant to 28 U.S.C. § 636(b)(1)(A) and the
corresponding provision in Rule 72(a) governing the pretrial
activities of Magistrate Judges.

As the Court made clear in its

prior order, under these latter provisions, no consent is needed
for a Magistrate Judge to preside over non-dispositive pretrial
matters, which was the scope of the referral here.

See Toro v.

Depository Trust Co., 97 CIV. 5383 (SAS), 1997 WL 752729, at *4
(S.D.N.Y. Dec. 4, 1997) ("No consent is needed to permit a
Magistrate Judge to rule on non-dispositive issues."); Kampfer on
Behalf of Kampfer v. Gokey, 159 F.R.D. 370, 372 (N.D.N.Y. 1995)
("[B]ecause the magistrate judge was ruling upon non-dispositive

5

pretrial motions . . . he was acting within his power and no
consent of the parties was needed."); cf. Leslie v. Attorney
Gen., 678 F.3d 265, 268 n.3 (3d Cir. 2012) (rejecting habeas
petitioner's challenge to a referral of his habeas petition to a
magistrate judge on the ground that he did not consent to it).
Accordingly, the referral was entirely lawful.
With regard to the plaintiffs' request for a hearing, the
plaintiffs' demands that I recuse myself and vacate the referral
have been rejected and their challenge to the Court's
jurisdiction is without merit.
hearing.

Thus, there is no need for a

The Court is not inclined to convene an unnecessary

hearing simply because the plaintiffs have demanded one.

In

fact, given the hostile tone of the pro se plaintiffs'
submissions, there is a distinct risk that what the plaintiffs
are seeking is more in the nature of a confrontation, which would
be counterproductive.

The request for a hearing is therefore

denied.
Given the history and status of this matter, the Court is
obliged to go beyond the plaintiffs' motion and consider whether
the action should be dismissed at this time.

Rule 41(b) gives a

district court authority to dismiss a case sua sponte for failure
to prosecute.

LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206,

209 (2d Cir. 2001).

The Second Circuit has adopted the following

five-factor test for determining whether a Rule 41(b) dismissal

6

is justified: (1) the duration of the plaintiff's failure to
comply with a court order, (2) whether the plaintiff has been
notified that failure to comply would result in dismissal, (3)
whether the defendant is likely to be prejudiced by further delay
in the proceedings, (4) a balancing of the court's interest in
managing its docket with the plaintiff's interest in receiving a
fair chance to be heard, and (5) whether the judge has adequately
considered a sanction less drastic than dismissal.

Id.

These factors weigh heavily in favor of dismissal.

The 120-

day period for service of the complaint expired long ago.

See

Fed. R. Civ. P. 4 (m) (providing a 120-window to serve a
complaint).

Judge Martinez's December 19 order gave the

plaintiffs adequate notice that failure to serve the complaint
would result in dismissal.

"Prejudice to defendants resulting

from unreasonable delay may be presumed," Lyell Theatre Corp. v.
Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982).

The plaintiffs have

refused to comply with the orders issued by the Court.

In their

most recent filing, they unequivocally state, "Defendants WILL
NOT be served until plaintiff's [sic] have been heard in court on
the Federal question of jurisdiction and the issue has been
decided.

Defendants may have to be served in a different court

altogether."

[ECF No. 17.] In this unusual context, I conclude

that dismissal under Rule 41(b) for failure to prosecute is
proper.

7

In any event, the text of Rule 4(m) requires the Court,
after giving notice to the plaintiffs, to dismiss an action
without prejudice for failure to serve the complaint in a timely
manner if the plaintiff does not show good cause for the failure.
Plaintiffs have not shown good cause for their failure to effect
service in a timely manner.
Rule 4(m) alone.

Dismissal is therefore proper under

See Bogle-Assegai v. Connecticut, 470 F.3d 498,

509 (2d Cir. 2006) (affirming district court's dismissal when
plaintiff "made no showing whatever as to any effort on her part
to effect personal service[,] . . . made no effort to show good
cause for her failure and never requested an extension of time .
. . when the case was pending").
Accordingly, plaintiff's motion is hereby denied in its
entirety, [ECF No. 14], and the case is hereby dismissed without
prejudice pursuant to Fed. R. Civ. P. 41(b) and Fed. R. Civ. P.
4(m).

The Clerk may close the file.

So ordered this 30th day of September 2013, at Hartford,
Connecticut.

/s/ RNC
Robert N. Chatigny
United States District Court

8