McTigue v. United States of America et al

Filing 44

ORDER Denying 43 Plaintiff's Motion to Vacate A Void Judgment. Signed by JUDGE DERRICK K. WATSON on 4/9/2014. (gab, )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 HAWAI`I

CIVIL NO. 14-00152 DKW-KSC

JENNIFER ANN MCTIGUE,
Plaintiff,

ORDER DENYING PLAINTIFF’S
MOTION TO VACATE A VOID
JUDGMENT

vs.
UNITED STATES OF AMERICA,
ET AL.,
Defendants.

ORDER DENYING PLAINTIFF’S
MOTION TO VACATE A VOID JUDGMENT

On March 27, 2014, Plaintiff pro se Jennifer Ann McTigue filed a
document entitled “In Admiralty, In Rem, Libel of Review, Involuntary Servitude
and Peonage, All Property and Rights to Property,” which the Court liberally
construed as a Complaint.

Because the Complaint was frivolous and did not state a

claim against the federal government, its agents, or any other named party, the Court
dismissed the action with prejudice upon sua sponte review. Plaintiff now asks the
Court to vacate its March 31, 2014 Order. Pursuant to Local Rule 7.2(d), the Court
finds this matter suitable for disposition without a hearing. Because the instant

1

“Motion to Vacate a Void Judgment” is as confusing as the initial “Libel of
Review,” and having offered no discernible reason why this Court should vacate or
reconsider its March 31, 2014 Order, Plaintiff’s motion is DENIED.
STANDARD OF REVIEW
The Court liberally construes pro se Plaintiff’s pleadings. See
Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (“The Supreme Court has
instructed the federal courts to liberally construe the >inartful pleading= of pro se
litigants.”) (citing Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam)).
Liberally construed, Plaintiff’s motion asks the Court to reconsider its March 31,
2014 Order dismissing her Complaint with prejudice.
This district court recognizes three grounds for granting
reconsideration of an order: “(1) an intervening change in controlling law; (2) the
availability of new evidence; and (3) the need to correct clear error or prevent
manifest injustice.” White v. Sabatino, 424 F. Supp. 2d 1271, 1274 (D. Haw. 2006)
(citing Mustafa v. Clark County Sch. Dist., 157 F.3d 1169, 1178-79 (9th Cir. 1998)).
DISCUSSION
Plaintiff asks the Court to “vacate” its prior order and seeks “recusal of
this Court to a more seasoned Jurist.” Motion at 2. The Court first addresses
Plaintiff’s request for reconsideration.

2

I.

Reconsideration Is Not Warranted
Although unclear, it appears that Plaintiff disagrees with the Court’s

rulings in the March 31, 2014 Order. However, “[m]ere disagreement with a
previous order is an insufficient basis for reconsideration.” White, 424 F. Supp. 2d
at 1274 (citing Leong v. Hilton Hotels Corp., 689 F. Supp. 1572 (D. Haw. 1988)).
Plaintiff claims, inter alia, that this Court erred in dismissing her claims
based on the lack of subject matter jurisdiction. According to Plaintiff, the “Court
erred in dismissing the Libel of Review stating that the matter was not reviewable in
the forum known as ‘in Admiralty.’” Mem. in Supp. at 2. She further asserts that
the “Court’s inability to distinguish between a ‘Libel of Review’ and a ‘Complaint’
may be better suited to a more competent jurist.” Id. at 8. Plaintiff insists that “a
Libel of Review is NOT a suit.” Id. at 7. Despite Plaintiff’s contentions, both the
original “Libel of Review” and the instant motion fail to set forth facts that plausibly
establish this Court’s subject matter jurisdiction. An initiating party must establish
this Court’s subject matter jurisdiction, whatever the label she chooses to attach to
her filings.
Plaintiff maintains that “this is an admiralty/maritime cause of action
within the meaning of the Federal Rules of Civil Procedure 9(h) and Supplemental
Rules of Admiralty, Rule G.”

Mem. in Supp. at 3.

3

The Court again informs

Plaintiff that her bare allegation of admiralty jurisdiction is wholly without merit.
“Admiralty jurisdiction exists only if the complained of incident occurred on
navigable waters or is substantially related to traditional maritime activity.”
Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 533
(1995).

Plaintiff makes no allegation relating to any maritime activities, any

incident occurring on the navigable waters of the United States, or any maritime
vessel.

See United States v. Webb, 2008 WL 1912439, at *4 (D. Haw. Apr. 30,

2008) (“It is plain from the nature of the two cases against Plaintiff and from his
Claims themselves that this action relates to the federal government’s assessment
and collection of taxes.

There is no allegation of any maritime activities, no

allegation of any incident occurring on the navigable waters of the United States,
and no suggestion that any maritime vessel is implicated.

As such, the Court

finds that Plaintiff’s Claims do not invoke this Court’s admiralty jurisdiction.”).
Because the motion does not “set forth facts or law of a strongly
convincing nature to induce the court to reverse its prior decision,” Plaintiff’s
reconsideration request is DENIED. White, 424 F. Supp. 2d at 1274.
II.

Recusal Is Not Warranted
Although Plaintiff does not specify the authority under which she seeks

“recusal of this Court to a more seasoned Jurist,” the Court liberally construes the

4

motion as brought pursuant to 28 U.S.C. § 455.
As provided in 28 U.S.C. § 455:
(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[.]
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).
Here, Plaintiff offers no explanation for her recusal request.
Presumably, she seeks recusal on the basis of an unfavorable ruling. As noted
above, a judge should disqualify him or herself in any proceeding in which his or her
impartiality might reasonably be questioned. On the other hand, “[u]nfavorable
rulings alone are legally insufficient to require recusal, even when the number of
such unfavorable rulings is extraordinarily high on a statistical basis.” Beverly
Hills Bancorp v. Hine, 752 F.2d 1334, 1341 (9th Cir. 1984) (citing Botts v. United
States, 413 F.2d 41, 44 (9th Cir. 1969); In re Int’l Bus. Machs. Corp., 618 F.2d 923,

5

929-30 (2d Cir. 1980)); see also Leslie v. Grupo ICA, 195 F.3d 1152, 1160 (9th Cir.
1999) (“[The plaintiff’s] allegations stem
entirely from the district court judge’s adverse rulings. That is not an adequate
basis for recusal.”). Accordingly, Plaintiff’s request for recusal is DENIED.
CONCLUSION
For the reasons stated above, the Court DENIES Plaintiff’s Motion to
Vacate a Void Judgment.
IT IS SO ORDERED.
DATED:

Honolulu, Hawai>i, April 9, 2014.

Jennifer Ann McTigue v. USA, et al.; Civil No. 14-00152 DKW-KSC; ORDER
DENYING PLAINTIFF’S MOTION TO VACATE A VOID JUDGMENT

6