Barker et al v. Gottlieb et al
ORDER DENYING PLAINTIFF'S MOTION TO RECUSE re 104 MOTION for Reconsideration re 102 Order on Motion to Dismiss, filed by Charles Barker, III. Signed by JUDGE LESLIE E. KOBAYASHI on 12/10/2014. -- th is Court has denied Plaintiff's Motion to Recuse, reassignment of Plaintiff's Motion for Reconsideration to another district judge is not necessary. Defendants' memorandum in opposition to Plaintiff's Motion for Reconsideration is due by December 19, 2014. Plaintiff's optional reply in support of the Motion for Reconsideration is due by December 31, 2014. This Court will take Plaintiff's Motion for Reconsideration under advisement thereafter. (eps)< FONT SIZE=1>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
CHARLES BARKER III,
JOSHUA L. GOTTLIEB, JONATHAN )
DUBOWSKY, DONALD BORNEMAN,
CHARLES HALL, SCOTT HARRIS,
THE VALUE EXCHANGE ADVISORS, )
also known as/doing business )
as TVXA, GEMCO-PACIFIC ENERGY )
LLC, aka GPE and ROES 1-25,
CIVIL 13-00236 LEK-BMK
ORDER DENYING PLAINTIFF’S MOTION TO RECUSE
Before the Court is pro se Plaintiff
Charles Barker III’s (“Plaintiff”) motion seeking the recusal of
this Court from the consideration of his pending motion for
reconsideration, filed on November 5, 2014.1
[Dkt. no. 104.]
Defendants Joshua L. Gottlieb, Jonathan Dubowsky,
Donald Borneman, Charles Hall, Scott Harris, the Value Exchange
Advisors, and GEMCo-Pacific Energy LLC (collectively
Plaintiff’s November 5, 2014 filing was titled
“Plaintiff’s Motion for Reconsideration of Dismissal of
Plaintiff’s Third Amended Complaint” and “Motion for Appointment
of Alternate Judge for Hearing of the Reconsideration Motion.”
This Court has construed the document as two separate motions - a
“Motion for Reconsideration” and the instant “Motion to Recuse.”
[Entering Order, filed 11/7/14 (dkt. no. 105), at 1.] On
November 20, 2014, this Court issued an entering order (“11/20/14
EO”) stating that, inter alia, it would issue a briefing schedule
on Plaintiff’s Motion for Reconsideration if it denied the Motion
to Recuse. [Dkt. no. 108 at 2.]
“Defendants”) filed their memorandum in opposition to the Motion
to Recuse on November 26, 2014.
[Dkt. no. 110.]
The Court finds
this matter suitable for disposition without a hearing pursuant
to Rule LR7.2(d) of the Local Rules of Practice of the United
States District Court for the District of Hawai`i (“Local
After careful consideration of the Motion to Recuse,
supporting and opposing memoranda, and the relevant legal
authority, the motion is HEREBY DENIED for the reasons set forth
Plaintiff filed his original, fourteen-count, Complaint
on May 15, 2013.
On October 16, 2013, this Court issued its
Order Granting in Part and Denying in Part Defendants’ Motion for
Judgment on the Pleadings (“10/16/13 Order”).
(motion), 44 (10/16/13 Order).2]
[Dkt. nos. 19
The 10/16/13 Order dismissed
all of Plaintiff’s claims without prejudice.
2013 WL 5675534, at
Plaintiff timely filed his Second Amended Complaint on
January 16, 2014.3
[Dkt. no. 53.]
The first eleven counts and
the thirteenth through fifteenth counts of the Second Amended
The 10/16/13 Order is available at 978 F. Supp. 2d 1168.
For the reasons stated in this Court’s December 5, 2013
entering order (“12/5/13 EO”), this Court struck Plaintiff’s
Amended Complaint, filed on November 13, 2013, and gave him leave
to file a second amended complaint. [Dkt. nos. 46 (Amended
Complaint), 49 (12/5/13 EO).]
Complaint were identical to the counts in the original Complaint.
The twelfth count of the Second Amended Complaint was a new
On May 28, 2014, this Court issued its Order Granting in
Part and Denying in Part Defendants’ Motion to Dismiss Second
Amended Complaint (“5/28/14 Order”).
[Dkt. nos. 59 (motion), 88
In the 5/28/14 Order, this Court:
-dismissed with prejudice the portion of Count I alleging fraud
regarding the future availability of financing, and
Counts II, III, IV, V, VIII, IX, X, XI, XII, and XIII; 2014
WL 2215920, at *14; and
-dismissed without prejudice the portion of Count I alleging
fraudulent alteration of agreements, Counts VI, VII, XIV,
and XV; id.
Plaintiff filed his Third Amended Complaint on June 27,
[Dkt. no. 89.]
The first fifteen claims in the Third
Amended Complaint (“Amended Count I” through “Amended Count XV”)
allege the same claims as Counts I through XV of the Second
Plaintiff also added two new claims -
“Evidence Suppression & Obstruction of Justice” (“Amended Count
XVI”) and a claim alleging perjury (“Amended Count XVII”).
October 24, 2014, this Court filed its Order Granting Defendants’
Motion to Dismiss Plaintiff’s Third Amended Complaint (“10/24/14
[Dkt. nos. 94 (motion), 102 (10/24/14 Order).5]
10/24/14 Order, this Court:
The 5/28/14 Order is available at 2014 WL 2215920.
The 10/24/14 Order is available at 2014 WL 5460619.
-dismissed with prejudice the portion of Amended Count I alleging
fraud regarding the future availability of financing; and
dismissed with prejudice Amended Counts II, III, IV, V,
VIII, IX, X, XI, XII, and XIII; because this Court dismissed
those claims with prejudice in the 5/28/14 Order; 2014 WL
5460619, at *2;
-dismissed Amended Counts XVI and XVII with prejudice because the
5/28/14 Order expressly stated that Plaintiff did not have
leave to add new claims;6 id.; and
-dismissed the remaining portion of Amended Count I, as well as
Amended Counts VI, VII, XIV, and XV, with prejudice because
Plaintiff failed to correct the defects that this Court
identified in the 5/28/14 Order; id. at *3-5.
On November 5, 2014, Plaintiff filed his Motion for
Reconsideration and his Motion to Recuse.
In the Motion to
Recuse, Plaintiff argues that this Court should recuse itself,
and another district judge should rule on the Motion for
This Court has construed Plaintiff’s Motion for
Recusal as a 28 U.S.C. § 455 motion.7
[11/20/14 EO at 1.]
Section 455 states, in pertinent part:
(a) Any justice, judge, or magistrate judge of the
The 10/24/14 Order dismissed Amended Counts XVI and XVII
with prejudice in the instant case, but the order stated that it
does not preclude Plaintiff from bringing those claims in a
separate action. 2014 WL 5460619, at *2.
This Court was initially inclined to construe the Motion
to Recuse as a 28 U.S.C. § 144 motion, but the Motion does not
include the affidavit that § 144 requires. In light of
Plaintiff’s pro se status, this Court gave him until
November 17, 2014 to file the affidavit. [EO, filed 11/10/14
(dkt. no. 107).] Because Plaintiff failed to file an affidavit
by November 17, 2014, this Court construed the Motion to Recuse
as a § 455 motion. [11/20/14 EO at 1.]
United States shall disqualify [her]self in any
proceeding in which [her] impartiality might
reasonably be questioned.
(b) [She] shall also disqualify [her]self in the
(1) Where [she] has a personal bias or
prejudice concerning a party, or personal
knowledge of disputed evidentiary facts
concerning the proceeding[.]
“The goal of section 455(a) is to avoid even the appearance of
Liljeberg v. Health Servs. Acquisition Corp., 486
U.S. 847, 860 (1988) (citation and quotation marks omitted).
Ninth Circuit has stated:
Proof of actual bias is not required under
§ 455(a). Instead, bias should “be evaluated on
an objective basis, so that what matters is not
the reality of bias or prejudice but its
appearance.” Liteky v. United States, 510 U.S.
540, 548, 114 S. Ct. 1147, 127 L. Ed. 2d 474
(1994). “It is well established that the recusal
inquiry must be made from the perspective of a
reasonable observer who is informed of all
surrounding facts and circumstances.” Cheney v.
U.S. Dist. Ct., 541 U.S. 913, 924, 124 S. Ct.
1391, 158 L. Ed. 2d 225 (2004) (emphasis and
internal quotation marks omitted).
In re Marshall, 721 F.3d 1032, 1041 (9th Cir. 2013) (emphasis in
In the Motion to Recuse, Plaintiff argues that this
Court’s rulings in this case show that it “has an inalienable
predisposition to [its] original position, which . . .
constitutes an automatic prejudice.”
[Motion for Recusal at 21.]
Plaintiff complains that this Court: 1) failed to order discovery
and a “full hearing” on the substantive issues raised in the
Third Amended Complaint; 2) ignored “significant facts,”
including his argument that Defendants and their counsel
committed perjury; and 3) denied him the right to have his case
“fully heard in open court before a judge and jury of peers.”
[Id. at 21-22.]
Plaintiff’s Motion to Recuse, however, cites
prior rulings by this Court as his only evidence of the alleged
bias or prejudice against him.
The United States Supreme Court
has stated that:
judicial rulings alone almost never constitute a
valid basis for a bias or partiality motion. See
United States v. Grinnell Corp., 384 U.S.[ 563,]
583, 86 S. Ct.[ 1698,] 1710[, 16 L. Ed. 2d 778
(1966)]. In and of themselves (i.e., apart from
surrounding comments or accompanying opinion),
they cannot possibly show reliance upon an
extrajudicial source; and can only in the
rarest circumstances evidence the degree of
favoritism or antagonism required (as discussed
below) when no extrajudicial source is involved.
Almost invariably, they are proper grounds for
In Liteky, the United States Supreme Court considered the
issue of whether the “extrajudicial source doctrine” applied to
§ 455 motions. 510 U.S. at 541. The Supreme Court described the
doctrine as requiring “that ‘[t]he alleged bias and prejudice to
be disqualifying [under § 144] must stem from an extrajudicial
source.’” Id. at 544 (alteration in Liteky) (quoting United
States v. Grinnell Corp., 384 U.S. 563, 583, 86 S. Ct. 1698,
1710, 16 L. Ed. 2d 778 (1966)). The Supreme Court ultimately
held that the issue of an extrajudicial source is relevant in
§ 455 motions, but it is more accurately described as a factor as opposed to a doctrine - because the fact that the source of a
judge’s opinion is extrajudicial is neither a necessary condition
nor a sufficient condition for recusal under § 455(b)(1). Id. at
appeal, not for recusal. Second, opinions formed
by the judge on the basis of facts introduced or
events occurring in the course of the current
proceedings, or of prior proceedings, do not
constitute a basis for a bias or partiality motion
unless they display a deep-seated favoritism or
antagonism that would make fair judgment
impossible. . . .
Liteky, 510 U.S. at 555.
Plaintiff has not identified anything in this Court’s
orders which suggests that this Court: relied upon an
extrajudicial source in ruling on the issues in this case; or
acted upon favoritism toward Defendants or antagonism toward
Further, this Court affirms that: it has not relied
upon any extrajudicial source in ruling on Defendants’ motions;
and it has no sentiment of favoritism toward Defendants or
antagonism toward Plaintiff.
The opinions that this Court has
expressed in its orders in this case are based solely upon its
impartial review of the parties’ submissions and the applicable
For these reasons, this Court finds that a reasonable
person, being apprised of all of the facts, would not question
this Court’s impartiality.
Plaintiff has therefore failed to
establish that recusal is necessary under § 455(b)(1).
On the basis of the foregoing, Plaintiff’s Motion to
Recuse, filed on November 5, 2014, is HEREBY DENIED.
Because this Court has denied Plaintiff’s Motion to
Recuse, reassignment of Plaintiff’s Motion for Reconsideration
to another district judge is not necessary.
memorandum in opposition to Plaintiff’s Motion for
Reconsideration is due by December 19, 2014.
optional reply in support of the Motion for Reconsideration is
due by December 31, 2014.
This Court will take Plaintiff’s
Motion for Reconsideration under advisement thereafter.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, December 10, 2014.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
CHARLES BARKER, III VS. JOSHUA L. GOTTLIEB, ET AL; CIVIL 13-00236
LEK-BMK; ORDER DENYING PLAINTIFF’S MOTION TO RECUSE
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