Krakauer et al v. Indymac Mortgage Services et al
Filing
169
ORDER DENYING MOTION TO DISQUALIFY JUDGE ALAN C. KAY re 163 . Signed by JUDGE J. MICHAEL SEABRIGHT on 4/23/13. (gls, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DEAN KRAKAUER and ROBBIN
KRAKAUER,
) CIVIL NO. 09-00518 ACK-BMK
)
) ORDER DENYING MOTION TO
Plaintiffs,
) DISQUALIFY JUDGE ALAN C. KAY
)
vs.
)
)
INDYMAC MORTGAGE
)
SERVICES, A DIVISION OF
)
ONEWEST BANK, FSB, A
)
FEDERAL SAVINGS BANK;
)
ONEWEST BANK, FSB; DOES 1-20, )
)
Defendants.
)
_______________________________ )
INDYMAC MORTGAGE
)
SERVICES, A DIVISION OF
)
ONEWEST BANK, FSB, A
)
FEDERAL SAVINGS BANK;
)
ONEWEST BANK.
)
)
Counterclaimants, )
)
vs.
)
)
DEAN KRAKAUER and ROBBIN )
KRAKAUER,
)
)
Counterclaim
)
Defendants.
)
______________________________ )
ORDER DENYING MOTION TO DISQUALIFY JUDGE ALAN C. KAY
I. INTRODUCTION
On October 29, 2009, Plaintiffs Dean Krakauer and Robbin Kathleen
Krakauer (“Plaintiffs”) filed this action to prevent Defendants IndyMac Mortgage
Services and OneWest Bank (“Defendants”) from foreclosing on their property. In
response, Defendants filed an Answer and Counterclaim seeking, among other
things, the appointment of a Commissioner to sell the property to satisfy the
mortgage loan Defendants hold on the property. This action has been actively
litigated and Defendants have thus far obtained the relief they seek -- on January 6,
2011, Senior U.S. District Judge Alan C. Kay (“Judge Kay”) entered an Order
Granting Decree of Foreclosure and Appointing Commissioner, Doc. No. 64; and
on March 29, 2013, Judge Kay entered an Order Confirming the Foreclosure Sale.
Doc. No. 161.
Despite these Orders disposing of the property, Plaintiffs have
recently filed a number of motions, including an April 16, 2013 “Motion to Recuse
Magistrate [sic] Alan C. Kay” (“Motion to Disqualify” or “Motion”) from this
action.1 Doc. No. 163. This Motion was referred to the undersigned because it
1
Plaintiffs have also recently filed motions challenging Defendants’ standing, Doc. No.
127; for summary judgment, Doc. No. 132; asserting failure to properly serve, Doc. No. 136; for
reconsideration pursuant to Rule 60(b)(3), Doc. No. 144; to have an attorney in fact make
appearances, Doc. No. 157; and to vacate the order of judgment, Doc. No. 164. Except for the
motion to vacate, filed on April 16, 2013 and currently pending, all motions have been denied.
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asserts that Judge Kay has a personal bias or prejudice in this action and therefore
must be recused pursuant to 28 U.S.C. § 144. Doc. No. 167. The matter is suitable
for decision under Local Rule 7.2(d) without an oral hearing. Based on the
following, the Motion to Disqualify is DENIED.
II. DISCUSSION
The applicable standards for disqualification or recusal of a federal
judge are found in 28 U.S.C. §§ 144 and 455.2 As provided in 28 U.S.C. § 144:
Whenever a party to any proceeding in a district court
makes and files a timely and sufficient affidavit that the
judge before whom the matter is pending has a personal
bias or prejudice either against him or in favor of any
adverse party, such judge shall proceed no further
therein, but another judge shall be assigned to hear such
proceeding.
The affidavit shall state the facts and the reasons for the
belief that bias or prejudice exists, and shall be filed not
less than ten days before the beginning of the term at
which the proceeding is to be heard, or good cause shall
be shown for failure to file it within such time. A party
may file only one such affidavit in any case. It shall be
accompanied by a certificate of counsel of record stating
that it is made in good faith.
2
Plaintiffs’ Motion to Disqualify refers to both §§ 144 and 455. Judge Kay has already
denied an oral motion to disqualify pursuant to § 455. Doc. No. 159. Although Plaintiffs did not
submit an affidavit in support of their Motion as required by 28 U.S.C. § 144, the court liberally
construes the Motion as brought pursuant to both §§ 144 and 455 in light of Plaintiffs’ pro se
status.
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Section 455 similarly provides, in pertinent part:
(a) Any justice, judge, or magistrate judge of the United
States shall disqualify himself in any proceeding in
which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following
circumstances:
(1) Where he has a personal bias or prejudice
concerning a party[.]
“Under both recusal statutes, the substantive standard is whether a
reasonable person with knowledge of all the facts would conclude that the judge’s
impartiality might reasonably be questioned.” Pesnell v. Arsenault, 543 F.3d 1038,
1043 (9th Cir. 2008) (citations, quotations, and alterations omitted). The
“reasonable person” is not someone who is “hypersensitive or unduly suspicious,”
but rather a “well-informed, thoughtful observer” who “understand[s] all the
relevant facts” and “has examined the record and law.” United States v. Holland,
519 F.3d 909, 914 (9th Cir. 2008) (citations omitted). “The standard must not be
so broadly construed that it becomes, in effect, presumptive, so that recusal is
mandated upon the merest unsubstantiated suggestion of personal bias or
prejudice.” Id. at 913 (quotations omitted).
Plaintiffs argue that Judge Kay has a conflict of interest because this
action involves the banking industry, and before joining the bench Judge Kay was
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on the board of directors of Bank of Hawaii and Hawaii Bancorp.3 Doc. No. 163.
Mot. at 3-4. Plaintiffs further assert that a conflict exists because Bank of Hawaii
is insured with the Federal Deposit Insurance Corporation (the “FDIC”) and the
“FDIC happens to be a part of this case as they have given, ‘Limited Power of
Attorney, to, [sic] Erica A. Johnson-Seck, which, [sic] Erica A. Johnson-Seck, is
the Robo-Signers [sic] on one of the bogus Assignments of Mortgage in this above
mentioned case.” Id. at 4.
These arguments are frivolous. Plaintiffs ask the court to find bias
based on the mere fact that prior to being appointed a federal judge, Judge Kay
worked in the banking industry such that he must favor the banking industry in
cases brought before him. But Judge Kay was appointed to the bench in 1986 -twenty-seven years ago -- such that no reasonable person with knowledge of all
these facts would conclude that Judge Kay’s impartiality might reasonably be
questioned. Rather, the timing of the Motion to Recuse -- brought over three years
after Plaintiffs filed this action and just after the Order Confirming Sale -- suggests
that Plaintiffs are simply raising any argument, regardless of merit, in an attempt to
stall this action. See Preston v. United States, 923 F.2d 731, 733 (9th Cir. 1991)
(explaining that motions to recuse must be brought with “reasonable promptness
3
The court assumes these assertions to be true for purposes of the Motion to Disqualify.
5
after the ground for such a motion is ascertained” because otherwise, “the absence
of such a requirement would result in increased instances of wasted judicial time
and resources and a heightened risk that litigants would use recusal motions for
strategic purposes”); see also United States v. Rogers, 119 F.3d 1377, 1380 (9th
Cir. 1997) (“[A] party having information that raises a possible ground for
disqualification cannot wait until after an unfavorable judgment before bringing
the information to the court’s attention.”). The court therefore DENIES Plaintiffs’
Motion to Recuse.
III. CONCLUSION
In sum, after careful review of the record, the court finds no basis for
Judge Kay’s disqualification. Plaintiffs’ Motion to Disqualify Judge Alan Kay is
DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 23, 2013.
/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge
Krakauer et al. v. IndyMac Mortg. Servs. et al., Civ. No. 09-00518 ACK/BMK, Order Denying
Motion to Disqualify Judge Alan C. Kay
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