Miller v. United States of America et al

Filing 62

MEMORANDUM ORDER - denying re 58 MOTION for Reconsideration re 57 Order on Motion for Entry of Default, Order on Motion for Default Judgment, Order on Motion to Dismiss/Lack of Subject Jurisdiction filed by Glenn A. Miller. Signed by Judge Gregory M. Sleet on 2/16/12. (rwc)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

GLENN A. MILLER,

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) Civ. Action No. 09-159-GMS
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Plaintiff,

v.
DEPARTMENT OF VETERANS
AFFAIRS, et aI.,
Defendants.

MEMORANDUM ORDER
I. BACKGROUND
The plaintiff, Glenn A. Miller ("Miller"), who appears pro se, initiated the above­
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captioned case against the United States of America, the Department of Veterans Affairs,
Secretary of Veterans Affairs Eric K. Shinseki, and numerous individual defendants. (D.I. 1.)
On March 29, 2011, the court dismissed the complaint for lack of subject matter jurisdiction.
(D'!.57.) Miller moves for relief from the order pursuant to Fed. R. Civ. P. 60(b) and asks the
court to rescind the March 29,2011 order, remove it from the court docket, and reopen the case.
He also asks the undersigned to recuse from the matter on the grounds of "an unmistakable
conflict of interest and lack of impartiality." Finally, Miller asks that counsel for the government
be removed from the case and the case assigned to "a neutral attorney preferably from outside the
federal government." (D.I. 58.)

II. STANDARD OF LAW
Miller moves for relief pursuant to Fed. R. Civ. P. 60(b) but his motion does not indicate
under which subsection he proceeds. In his reply brief, Miller refers to Rule 60(b)(3) and Rule

60(b)6).
Rule 60(b) provides that a party may file a motion for relief from a final judgment for the
following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered
evidence by which due diligence could not have been discovered in time to move
for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party;
(4) the judgment is void; (5) the judgment has been satisfied, released or
discharged, or a prior judgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that the judgment should have
prospective application; or (6) any other reason justifying relief from the operation
of the judgment.
Fed. R. Civ. P. 60(b). A motion filed pursuant to Rule 60(b) is addressed to the sound discretion
of the trial court guided by accepted legal principles applied in light of all relevant circumstances.

Pierce Assoc. Inc. v. Nemours Found., 865 F.2d 530,548 (3d Cir. 1988).
III. DISCUSSION
Plaintiff relies upon Rule 60(b)(3) - "fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation or other misconduct of an adverse party" and Rule 60(b)(6)" - "any
other reason justifying relief from the operation of the judgment." Miller contends that the
undersigned "habitually rules against pro se litigants" and "routinely denies almost each and
every motion presented" except for those filed by government attorneys which are historically
ruled on in the government's favor. In short, Miller contends that the undersigned has an
"overwhelming bias" in favor of government attorneys. Miller's detailed argument in support of
his position can be condensed into the theory that, in the instant case, the undersigned, in error,
granted all motions filed by a government attorneys and, for the most part, denied motions filed
by Miller. In addition, Miller contends that the government attorneys obstructed personal service

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of the individual defendants and the u.s. Attorney presented known false arguments to the court.
Rule 60(b)(3) provides for relief from judgment by reason of "fraud (whether previously
called intrinsic or extrinsic), misrepresentation, or other misconduct by an opposing party." "In
order to sustain the burden of proving fraud and misrepresentation under Rule 60(b )(3), the
evidence must be clear and convincing," Brown v. Pennsylvania R.R. Co., 282 F.2d 522,527 (3d
Cir. 1960), and "cannot serve as an attempt to relitigate the merits," Fleming v. New York Univ.,
865 F.2d 478,484 (2d Cir. 1989). Rule 60(b)(3) "is aimed at judgments which were unfairly
obtained, not at those which are factually incorrect." Hesling v. CSXTransp., Inc., 396 F.3d 632,
641 (5 th Cir. 2005). In addition, Rule 60(b)(3) concerns litigation-related fraud perpetrated in the
course of litigation that interferes with the process of adjudication. See Roger Edwards, LLC v.

Fiddes & Son Ltd, 427 F.3d 129, 134 (I st Cir. 2005). Once such fraud is proved, the judgment
may be set aside upon the movant's showing that the fraud "substantially interfered with [the
movant's] ability fully and fairly to prepare for, and proceed at, trial." Tiller v. Baghdady, 294
F.3d 277, 280 (1st Cir. 2002).
Rule 60(b)(6) "is a catch-all provision that allows relief for any reason justifying relief
from the operation of the judgment." United States v. Witco Corp., 76 F. Supp. 2d 519,527 (D.
Del. 1999). It is within the sound discretion of the trial court to grant or deny relief under this
section. Lasky v. Continental Products Corp., 804 F.2d 250, 256 (3d Cir. 1986). The Third
Circuit "has consistently held that the Rule 60(b)(6) ground for relief from judgment provides for
extraordinary relief and may only be invoked upon a showing of exceptional circumstances."

Coltec Indus., Inc. v. Hobgood, 280 F.3d 262, 273 (3d Cir. 2002) (internal citations and
quotations omitted); see also Gonzalez v. Crosby, 545 U.S. 524, 535 (2005) ("[O]ur cases have

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required a movant seeking relief under Rule 60(b)( 6) to show' extraordinary circumstances'
justifying the reopening of a final judgment."). Finally, Rule 60(b)(6) generally requires the
movant to make "a more compelling showing of inequity or hardship" than would normal1y be
required to reopen a case under anyone of the first five subsections of Rule 60(b). Project

Mgmt. Inst., Inc. v. Ireland, 144 F. App'x 935 n.l (3d Cir. 2005) (not published).
The relief Miller seeks is not available to him under either Rule 60(b)(3) or Rule 60(b)(6).
Neither Rule is intended to permit relitigation of the merits of the case which is Miller's obvious
intent. With regard to Rule 60(b)(3), Miller has failed to come forth with clear and convincing
evidence of misconduct by the opposing parties. Moreover, there is no indication that dismissal
of the case was unfairly obtained. With regard to Rule 60(b)(6), Miller's assignment of legal
error, without more, does not justify the granting of relief. See Pridgen v. Shannon, 380 F.3d
721, 728 (3d Cir. 2004). The court thoroughly reviewed the record and the case law before
issuing its decision. It is evident that Miller disagrees with the court's ruling. Regardless, this is
an insufficient basis for relief under Rule 60(b)(6). Finally, Miller has not presented
extraordinary circumstances to warrant granting his motion. See Choi v. Kim, 258 F. App'x 413,
416 (3d Cir. 2007) (not published).

IV. RECUSAL
Miller also seeks recusal of the undersigned and counsel for the government. Pursuant to
28 U.S.C. § 455(a), a judge is required to recuse herself "in any proceeding in which [her]
impartiality might reasonably be questioned." 28 U.S.C. § 455(a). The test for recusal under §
455(a) is whether a "reasonable person, with knowledge of all the facts, would conclude that the
judge's impartiality might reasonably be questioned." In re Kensington Int'l Ltd, 368 F.3d 289,

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301 (3d Cir. 2004). Under § 455(b)(1), ajudge is also required to recuse herself "[w]here he has
a personal bias or prejudice concerning a party."
Under either subsection, the bias necessary to require recusal generally "must stem from a
source outside of the official proceedings." Liteky v. United States, 510 U.S. 540,554 (1994);

Selkridge v. United ofOmaha Life Ins. Co., 360 F.3d 155, 167 (3d Cir. 2004) (beliefs or opinions
which merit recusal must involve an extrajudicial factor). Hence, "judicial rulings alone almost
never constitute a valid basis for a bias or partiality motion." Liteky, 510 U.S. at 555. Similarly,
claims of bias or partiality cannot be based on "expressions of impatience, dissatisfaction,
annoyance, [or] even anger, that are within the bounds of what imperfect men and women, even
after having been confirmed as federal judges, sometimes display. Ajudge's ordinary efforts at
courtroom administration - even a stem and short-tempered judge's ordinary efforts at courtroom
administration - remain immune." Id. at 555-56.

It is evident in reading Miller's motion that he take exception to this court's rulings and
this serves as his basis to seek recusal. A reasonable, well-informed informer observer could not
believe that the rulings were based on impartiality, bias, or actual prejudice by the undersigned.
Nor do the rulings of the undersigned demonstrate that he acted in any such manner when ruling
in this case. After careful and deliberate consideration, the undersigned concludes that he has no
actual bias or prejudice towards Miller and that a reasonable, well-informed observed would not
question his impartiality. In light of the foregoing standard and after considering Miller's
assertions, the undersigned concludes that there are no grounds for recusal.
Miller also asks this court to order the recusal of government attorneys from this case.
The United States Supreme Court has recognized that there is a presumption in favor of a party's

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right to choose counsel. See Wheat v. United States, 486 U.S. 153, 158, 160 (1988). Depriving a
party of his choice of counsel is a penalty that must not be imposed without careful
consideration. See Federal Deposit Ins. Corp. v. United States Fire Ins. Co., 50 F .3d 1304, 1313
(5th Cir. 1995). In civil matters as well as criminal matters, the right to counsel includes the right
to legal representation of one's choice. See McCuin v. Texas Power, 714 F.2d 1255, 1257 (5 th
Cir. 1983). The right to counsel of choice is not absolute, however, and can be overridden if it
can be proven that there is a compelling reason to do so. Id at 1262-63. Miller has provided no
justification for his broad request that this court recuse all government attorneys from this matter.

v.

CONCLUSION
NOW THEREFORE, at Wilmington this

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/£ day of_,,-~
_ _ _, 2012, IT IS
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HEREBY ORDERED that the motion for relief from order is denied. (D.l. 58.)

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