HSBC Bank Nevada, N.A. v. DeGeorge
Filing
29
ORDER denying 17 motion for recusal; denying 21 motion to strike; finding as moot 27 motion to strike; denying 5 motion for leave to proceed in forma pauperis; granting 16 motion to remand to state court to extent that the Clerk is directed to remand this case to state court, but denying motion to the extent that no fees or costs will be awarded; directing the Clerk to close the file following remand. Signed by Judge Timothy J. Corrigan on 7/28/2014.(SRW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
HSBC BANK NEVADA, N.A., etc.,
Plaintiff,
vs.
Case No. 3:14-cv-217-J-32JBT
BERNARD J. DEGEORGE, JR.,
Defendant.
ORDER
This case is before the Court on pending motions.
I.
Motion to Recuse/Motion to Strike
The Court first takes up defendant/counterclaim plaintiff Bernard DeGeorge’s motion
requesting that the undersigned recuse himself, contending that the undersigned improperly
had this case transferred to him,1 that the undersigned has a personal bias in favor of large
banks, that the undersigned was aware that the DeGeorges were planning to file complaints
with The Florida Bar against members of the judiciary, that the undersigned’s rulings in an
earlier case involving DeGeorge ignored fraud perpetuated by large banks, that the
undersigned has an extrajudicial bias against pro se parties, that the undersigned has a bias
favoring large banks because their litigation pays state and federal court filing fees, that the
undersigned has a bias against DeGeorge “because of his wife’s political activism,” which
includes writing and “acting as the area representative of a national organization whose
1
Another judge of this Court transferred this case to the undersigned as a related case
pursuant to Local Rule 1.04(a). Doc. 11.
goals are the elimination of judicial immunity and the establishment of special grand juries
to investigate complaints against judges to create meaningful and sorely needed
accountability,”2 and that the undersigned is friends with one of plaintiff’s attorneys, who is
a former law clerk for another Judge on this Court. See Motion to Recuse and exhibits
thereto, Doc. 17, supplement by Doc. 20. In an affidavit, DeGeorge also mentions computer
trouble he has been having under circumstances that are “so unusual, that it appears
someone may be remotely accessing and sabotaging [his] computers intentionally,”
suggesting that the banks involved with his law suits and “members of the court employed
by those banks” have resources to hack into his computers. See Doc. 18 (Affidavit) at ¶ 25.
DeGeorge’s motion seeks relief pursuant to 28 U.S.C. § 455(a) and (b)(1) and 28
U.S.C. § 144. Under 28 U.S.C. § 455(a) and (b)(1), a judge of this Court “shall disqualify
himself in any proceeding in which his impartiality might reasonably be questioned” or
“[w]here he has a personal bias or prejudice concerning a party or personal knowledge of
disputed evidentiary facts concerning the proceeding.” The standard under § 455 “is
whether an objective, disinterested, lay observer fully informed of the facts underlying the
grounds on which recusal was sought would entertain a significant doubt about the judge’s
impartiality.” United States v. Patti, 337 F.3d 1317, 1321 (11th Cir. 2003) (quotation and
citation omitted). Under 28 U.S.C. § 144, a judge shall recuse upon presentation of a
sufficient and timely affidavit charging personal bias or prejudice either against the movant
2
See Doc. 17 (Motion) at ¶ 21.
2
or in favor of an adverse party and a certificate of good faith.3 “To warrant recusal under §
144, the moving party must allege facts that would convince a reasonable person that bias
actually exists.” Christo v. Padgett, 223 F.3d 1324, 1333 (11th Cir. 2000) (citation omitted).
“A charge of partiality must be supported by some factual basis . . . . Recusal cannot
be based on unsupported, irrational or highly tenuous speculation.” United States v.
Cerceda, 188 F.3d 1291, 1293 (11th Cir. 1999) (quotation and citation omitted). Thus, “a
judge, having been assigned to a case, should not recuse himself on unsupported, irrational,
or highly tenuous speculation. [Otherwise], the price of maintaining the purity of the
appearance of justice would be the power of litigants or third parties to exercise a veto over
the assignment of judges.” United States v. Greenough, 782 F.2d 1556, 1558 (11th Cir.
1986). “Ordinarily, a judge’s rulings in the same or a related case may not serve as the basis
for a recusal motion. The judge’s bias must be personal and extrajudicial; it must derive from
something other than that which the judge learned by participating in the case.” McWhorter
v. City of Birmingham, 906 F.2d 674, 678 (11th Cir. 1990) (citation omitted). “An exception
to this general rule occurs when the movant demonstrates ‘pervasive bias and prejudice.’”
Id. (citation omitted).
3
DeGeorge’s affidavit in support is of record at Doc. 18. Numerous exhibits are attached
to the motion (Doc. 17) but the record does not appear to include a certificate of good faith.
As DeGeorge is proceeding pro se, the Court takes the affidavit to be evidence of his good
faith and will not deny the motion on that procedural ground. As for its timeliness, a motion
under § 144 must be filed “not less than ten days before the beginning of the term at which
the proceeding is to be heard . . . .” 28 U.S.C. § 144. Because the Court had not yet
granted DeGeorge’s motion for leave to proceed in forma pauperis at the time he filed the
motion for recusal, the case had not been set for any term and the motion is therefore
deemed to be timely filed.
3
Nearly all of DeGeorge’s allegations relate to the undersigned’s judicial rulings and
are not therefore a basis for recusal. See Liteky v. United States, 510 U.S. 540, 555 (1994)
(“[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion”).
While DeGeorge has attempted to paint a picture of pervasive bias and prejudice (such as
by suggesting bias because the United States is the “employer” of the undersigned and also
“the source of TARP funding for the large banks” with whom DeGeorge is litigating), his
attempts would not convince “an objective, disinterested, lay observer fully informed of the
facts” that there is any basis for “significant doubt” about the undersigned’s impartiality.
McWhorter, 906 F.2d at 678 (quotation and citation omitted).4 DeGeorge’s motion to recuse
is therefore denied. In its response to DeGeorge’s motion (Doc. 21), plaintiff/counterclaim
defendant HSBC Bank Nevada, N.A. moved to strike DeGeorge’s affidavit and motion as
being scandalous, unfounded, and meritless. DeGeorge responded (Doc. 27), himself
moving to strike HSBC’s Motion to Strike for failure to comply with Local Rule 3.01(g). Given
the nature of the relief DeGeorge was seeking, the Court finds it would be improper to strike
his filing. HSBC’s motion to strike is denied and DeGeorge’s motion to strike HSBC’s filing
is moot.
4
The only allegation of “extrajudicial bias” that deserves discussion is DeGeorge’s
suggestion that the appearance in this case of a former law clerk is somehow improper. “It
is common knowledge in the profession that former law clerks practice regularly before
judges for whom they once clerked.” In re Martinez-Catala, 129 F.3d 213, 221 (1st Cir.
1997). See also, In re Lickman, 288 B.R. 151, 154 (M.D. Fla. 2003) (citing various district
court authorities for same proposition). Moreover, the attorney in question clerked for a
different judge of this Court who is not assigned to this case.
4
II.
Motion for Leave to Proceed In Forma Pauperis/Motion to Remand
DeGeorge seeks leave to proceed in forma pauperis in removing this case from state
court to federal court. See Doc. 5. The Court may, upon a finding of indigency, authorize
the commencement of an action without the prepayment of costs, fees or security. 28
U.S.C. § 1915(a)(1). However, even when a party is indigent, the Court should not permit
the case to go forward if it fails to state a claim on which relief can be granted. 28 U.S.C. §
1915(e)(2)(B). A claim is not stated where there is no federal jurisdiction, be it original
subject matter jurisdiction or removal jurisdiction. Cogdell v. Wyeth, 366 F.3d 1245, 1247-48
(11th Cir. 2004). Thus, where a defendant seeking leave to proceed in forma pauperis
attempts to remove a case from state to federal court, the Court must deny the motion and
remand the case to state court if federal jurisdiction is lacking. See HSBC Bank USA, N.A.
v. Anderson, 2012 WL 4896686 (M.D. Fla. Sept. 24, 2012), adopted by Order, Doc. 10, Case
No. 6:12-cv-1309-Orl-22DAB; Thompson v. Belk, Inc., 2013 WL 5786587 (N.D. Ga. Oct. 28,
2013). Additionally, in this case, HSBC has moved to remand (notwithstanding that the
Court had not yet ruled on DeGeorge’s motion for leave to proceed in forma pauperis) and
DeGeorge filed a response to the motion. See Docs. 16, 26. Thus, the remand issue is
squarely before the Court and both sides have had full opportunity to present their positions.
The burden of establishing that federal jurisdiction is proper lies with the party seeking
removal to federal court. Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1319-20 (11th Cir.
2001). Moreover, removal statutes are to be narrowly construed and uncertainties must be
resolved in favor of remand. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09
(1941).
5
The Court previously remanded this same case upon finding that DeGeorge failed to
establish any bad faith on the part of HSBC which would warrant overlooking the
untimeliness of the removal under the Court’s diversity jurisdiction, that even if the removal
was timely, DeGeorge had failed to establish the requisite amount in controversy for diversity
jurisdiction, and that the case presented no federal question. See HSBC Bank Nevada, N.A.
v. DeGeorge, Case No. 3:12-cv-1192-J-32MCR, Doc. 22 (Order entered Sept. 3, 2013).5
DeGeorge claims he has newly discovered evidence of bad faith and that he can also show
the amount in controversy is satisfied, such that this Court should exercise diversity
jurisdiction.
The Court incorporates by reference the previous Order of remand in its entirety. The
Court has now examined DeGeorge’s “new evidence,” which consists of the first two pages
of a February 24, 2014 letter presumably from Mrs. DeGeorge to Judge Borello explaining
that Mr. DeGeorge was unaware of the charges on his credit card, to which are attached
portions of account statements dating from 2008 and 2009 that, when added together,
exceed $75,000.6 However, Mrs. DeGeorge’s letter cannot possibly be construed as bad
faith action by HSBC designed to prevent DeGeorge from discovering the true amount in
controversy and there is no suggestion that HSBC did anything to conceal from Mr.
DeGeorge the amounts due on the account statements provided.
See 28 U.S.C. §
5
The Court denied DeGeorge’s motion for reconsideration; DeGeorge then took an appeal
which the Eleventh Circuit dismissed when he failed to file his brief. See HSBC Bank
Nevada, N.A. v. DeGeorge, Case No. 3:12-cv-1192-J-32MCR, Docs. 24, 28.
6
DeGeorge attached numerous other papers to his filing but the basis for his claim of new
evidence is the letter and the attached statements.
6
1446(c)(3)(B). Moreover, HSBC’s Complaint is only seeking $51,129.83 plus interest for
DeGeorge’s unpaid credit card charges on a particular account (plus reasonable attorney’s
fees which were claimed to be $700 in the event of a default). Thus, the sums on the
statements DeGeorge provided, which are from two separate dates and do not include the
credit card account number stated in the Complaint,7 fail to establish the requisite amount
in controversy. See Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994) (holding
that where the complaint requests damages in an amount that fails to support federal
jurisdiction, the removing party bears a “heavy” burden of proof to establish that a higher
sum controls).
DeGeorge has failed to put forward evidence sufficient to establish the amount in
controversy exceeds $75,000 exclusive of interest and costs, nor has he established bad
faith on the part of HSBC. DeGeorge’s Motion for Leave to Proceed In Forma Pauperis
(Doc. 5) is denied; HSBC’s Motion to Remand (Doc. 16) is granted to the extent that this
case will be remanded, but is denied to the extent that it seeks fees, costs and injunctive
relief. As stated in the Court’s prior Order of remand, DeGeorge’s pro se status counsels
against awarding fees and costs and the Court is disinclined to enter an injunction at this
point. However, DeGeorge should now clearly understand that this case is not removable.
Future efforts to remove this case to federal court would likely result in the Court summarily
7
The attachments to DeGeorge’s corrected filing (Doc. 26) include account numbers but
they are not the same as the one listed in the complaint. On some of the earlier attachments
(which appear to have been pieced together from separate papers), the account numbers
are redacted. See Docs. 1 & 24. Regardless, HSBC’s complaint includes a specific sum for
which it is suing and, even if it did not, credit card statements addressed to Mr. DeGeorge
from 2008 and 2009 cannot be considered new evidence in 2014.
7
remanding the case, imposing fees and costs, and entering injunctive relief against him.
Accordingly, it is hereby
ORDERED:
1.
DeGeorge’s Motion to Recuse (Doc. 17) is denied.
2.
HSBC’s Motion to Strike (Doc. 21) is denied; DeGeorge’s Motion to Strike
(Doc. 27) is moot.
3.
DeGeorge’s Motion for Leave to Proceed In Forma Pauperis (Doc. 5) is
denied.
4.
HSBC’s Motion to Remand (Doc. 16) is granted to the extent that this case is
hereby remanded to state court but is denied to the extent that the Court declines to award
costs or fees for DeGeorge’s improper removal.
5.
The Clerk shall close the file following remand to the Fourth Judicial Circuit
Court, in and for Clay County, Florida.
DONE AND ORDERED at Jacksonville, Florida this 28th day of July, 2014.
s.
Copies:
counsel of record
pro se party
Clerk of Court, Fourth Judicial Circuit Court, in and for Clay County
8
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