Di Giustino v. Smartecarte Company, Inc. et al
Filing
54
ORDER DENYING PLAINTIFF'S MOTION TO RECUSE re 40 Motion for Recusal.. Signed by MAGISTRATE JUDGE KEVIN S.C. CHANG on 03/22/2018. (eps, )CERTIFICATE OF SERVICEParticipants registered to receive elec tronic 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 served by first class mail on March 23, 2018 : Marco Di Giustino; P.O. Box 37336; Honolulu, HI 96937
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
Plaintiff,
)
)
vs.
)
)
)
SMARTECARTE COMPANY, INC.;
JEFF CHEN, Manager; CARL
)
)
ZUETERMEISTER, Assistant
Manager; JEFF CHAN, Assistant )
General Manager; JOHN DOES 1- )
5,
)
)
)
Defendants.
_____________________________ )
MARCO DI GIUSTINO,
CIVIL NO. 16-00192 LEK-KSC
ORDER DENYING PLAINTIFF’S
MOTION TO RECUSE
ORDER DENYING PLAINTIFF’S MOTION TO RECUSE
Before the Court is pro se Plaintiff Marco Di
Giustino’s (“Plaintiff”) Motion to Recuse,1 filed January 26,
2018.
The Court finds this matter suitable for disposition
without a hearing pursuant to Rule 7.2(d) of the Local Rules of
Practice for the U.S. District Court for the District of Hawaii.
After careful consideration of the parties’ submissions
and the applicable law, the Court HEREBY DENIES the Motion for
the reasons set forth below.
1
Plaintiff continues to violate the Local Rules. Not only
does the formatting of his documents fail to comply with the
Local Rules, Plaintiff did not file a Reply to his Motion.
Plaintiff is expected to adhere to all applicable rules and
statutes notwithstanding his pro se status. Local Rule 83.13.
Failure to do so may result in the imposition of sanctions,
including but not limited to dismissal of this action.
BACKGROUND
On April 22, 2016, Plaintiff initiated this action.
On November 1, 2017, the Court held a settlement
conference.
The parties did not reach an agreement.
At the December 15, 2017 hearing on Defendants Smarte
Carte, Inc., Jie “Jeff” Chen, Carl Zuttermeister, and Ho Yeung
“Gary” Chan’s2 (collectively “Defendants”) Motion to Continue
Trial Date and Extend Rule 16 Scheduling Order Deadlines, the
Court held a discussion regarding discovery.
The Court extended
Plaintiff’s deadline to respond to discovery requests until
January 16, 2018, and directed the parties to schedule
Plaintiff’s deposition in mid-February 2018.
On January 26, 2018, Plaintiff filed the present
Motion.
On January 29, 2018, the Court issued the following
Entering Order:
On 1/26/18, pro se Plaintiff filed a document
entitled “Demand for Motion to Recuse.” Although
Plaintiff references sections 144 and 455 of Title
28 of the U.S. Code, § 144 requires submission of
“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.” 28 U.S.C. § 144. The
declaration must “state the facts and the reasons
for the belief that bias or prejudice exists.”
Id. Plaintiff is ORDERED to clarify whether he is
seeking recusal pursuant to § 144 by 2/12/18. If
so, he must comply with § 144’s requirements and
certify that his Motion is brought in good faith.
2
Defendants are incorrectly identified in the Complaint
and/or and caption.
2
If Plaintiff fails to do so, this Court, as
opposed to the district judge, will apply § 455
and determine whether recusal is warranted.
Doc. No. 40.
Plaintiff did not respond and did not comply with
28 U.S.C. § 144.
ANALYSIS
Plaintiff seeks recusal of the undersigned.
Plaintiff
sets forth a number of accusations under headings that
misrepresent and reflect his fundamental misunderstanding of
these proceedings.
There being significant incongruity between
Plaintiff’s headings and the allegations thereunder, the Court
focuses solely on the factual charges asserted by Plaintiff.3
3
Plaintiff’s largely irrelevant headings are as follows:
I. The Judge made comments to the Jury reflecting Bias
about the case
II. The Judge abused his Authority involving Payment of
a Settlement
III. The Judge made Remarks during Court Proceedings
that Disparaged the Litigants and Counsel
IV.
The Judge demeaned a Potential Jury
V. The Judge made Comments that appeared to Criticize
the Jury
VI. The Judge proceeded without appointed Counsel
despite the Defendant’s statements that he wanted Counsel
with the Judge further making comments that Disparaged
the Defendant’s version of the case and fostered the
Appearance that the Judge was attempting to pressure the
Defendant into Pleading Guilty
Mot. at 3-5.
3
A.
28 U.S.C. § 455
Insofar as Plaintiff failed to comply with § 144, the
Court applies § 455.
Section 455(a) requires a judge to
“disqualify himself in any proceeding in which his impartiality
might reasonably be questioned.”
28 U.S.C. § 455(a).
Disqualification is also required under § 455(b) where a judge
“has a personal bias or prejudice concerning a party, or personal
knowledge of disputed evidentiary facts concerning the
proceeding” and “[w]here in private practice [the judge] served
as lawyer in the matter in controversy, or a lawyer with whom he
previously practiced law served during such association as a
lawyer concerning the matter, or the judge or such lawyer has
been a material witness concerning it.”4
28 U.S.C. § 455(b)(1)-
(2).
Motions to recuse are “addressed to, and must be
decided by, the very judge whose impartiality is being
questioned.”
In re Bernard, 31 F.3d 842, 843 (9th Cir. 1994)
(citations omitted).
“[A] judge has ‘as strong a duty to sit
when there is no legitimate reason to recuse as he does to recuse
when the law and facts require.’”
Clemens v. U.S. Dist. Court
for Cent. Dist. of Cal., 428 F.3d 1175, 1179 (9th Cir. 2005)
(citation omitted).
4
Plaintiff did not identify the subsections pursuant to
which he requests relief, but it appears that § 455(a) and
(b)(1)–(2) are at issue.
4
Motions to disqualify must be timely filed.
Davies v.
C.I.R., 68 F.3d 1129, 1131 (9th Cir. 1995); Preston v. United
States, 923 F.2d 731, 733 (9th Cir. 1991) (“[A] motion to
disqualify or recuse a judge under . . . § 455 must be made in a
timely fashion.”).
That is, “recusal motions should be filed
with reasonable promptness after the ground for such a motion is
ascertained.”
Preston, 923 F.2d at 733.
In the absence of such
a requirement, there would be “increased instances of wasted
judicial time and resources and a heightened risk that litigants
would use recusal motions for strategic purposes.”
Id.
Allowing
untimely recusal motions “would encourage parties to withhold
recusal motions, pending a resolution of their dispute on the
merits, and then if necessary invoke section 455 in order to get
a second bite at the apple.”
E. & J. Gallo Winery v. Gallo
Cattle Co., 967 F.2d 1280, 1295 (9th Cir. 1992).
1.
Section 455(a)
The Court employs an objective test in analyzing
disqualification under § 455(a), which asks whether “‘a
reasonable person with knowledge of all the facts would conclude
that [the judge’s] impartiality might reasonably be questioned.’”
Perry v. Schwarzenegger, 630 F.3d 909, 911 (9th Cir. 2011)
(citation omitted); Clemens, 428 F.3d at 1178.
Central to that
inquiry is “whether a reasonable person perceives a significant
risk that the judge will resolve the case on a basis other than
5
the merits.”
Clemens, 428 F.3d at 1178.
In this context, the
“reasonable person” means a “‘well-informed, thoughtful
observer,’ as opposed to a ‘hypersensitive or unduly suspicious
person.’”
Id. (citation omitted).
A reasonable third-party
observer understands all of the relevant facts and has examined
the record and law.
(9th Cir. 2008).
United States v. Holland, 519 F.3d 909, 914
Recusal is not mandated on the “merest
unsubstantiated suggestion of personal bias or prejudice.”
Id.
(citation omitted).
Questions concerning a “judge’s impartiality must stem
from ‘extrajudicial’ factors . . . that is, from sources other
than the judicial proceedings at hand.”
Clemens, 428 F.3d at
1178 (quoting Liteky v. United States, 510 U.S. 540, 554 (1994);
Pau v. Yosemite Park and Curry Co., 928 F.2d 880, 885 (9th Cir.
1991) (citation omitted)).
Put differently, the basis for
recusal must be “something other than rulings, opinions formed or
statements made by the judge during the course of trial.”
Holland, 519 F.3d at 914 (citing Liteky, 510 U.S. at 554-56).
Therefore, a “judge’s conduct during the proceedings should not,
except in the ‘rarest of circumstances’[] form the sole basis for
recusal under § 455(a).”
Id. (quoting Liteky, 510 U.S. at 555).
In analyzing § 455(a) claims, which are fact driven,
the Court “must be guided, not by comparison to similar
situations addressed by prior jurisprudence, but rather by an
6
independent examination of the unique facts and circumstances of
the particular claim at issue.”
(citation omitted).
Clemens, 428 F.3d at 1178
The following circumstances do not
ordinarily mandate a § 455(a) recusal:
(1) Rumor, speculation, beliefs, conclusions,
innuendo, suspicion, opinion, and similar
non-factual matters; (2) the mere fact that a
judge has previously expressed an opinion on a
point of law or has expressed a dedication to
upholding the law or a determination to impose
severe punishment within the limits of the law
upon those found guilty of a particular offense;
(3) prior rulings in the proceeding, or another
proceeding, solely because they were adverse; (4)
mere familiarity with the defendant(s), or the
type of charge, or kind of defense presented; (5)
baseless personal attacks on or suits against the
judge by a party; (6) reporters’ personal opinions
or characterizations appearing in the media, media
notoriety, and reports in the media purporting to
be factual, such as quotes attributed to the judge
or others, but which are in fact false or
materially inaccurate or misleading; and (7)
threats or other attempts to intimidate the judge.
Id. at 1178–79 (citation omitted); Sivak v. Hardison, 658 F.3d
898, 926 (9th Cir. 2011) (“‘[R]umor, speculation, beliefs,
conclusions, innuendo, suspicion, opinion, and similar
non-factual matters’ do not form the basis of a successful
recusal motion.”) (citation omitted).
2.
Section 455(b)
Section 455(b) provides specific examples of situations
“in which a judge’s impartiality might be reasonably questioned
pursuant to section 455(a).”
Cf. United States v. Sibla, 624
F.2d 864, 867 (9th Cir. 1980) (citation omitted).
7
However,
unlike § 455(a), which concerns the appearance of bias, § 455(b)
“covers situations in which an actual conflict of interest
exists, even if there is no appearance of one.”
Herrington v.
Sonoma Cty., 834 F.2d 1488, 1502 (9th Cir. 1987).
It requires
the judge to apply a subjective standard in determining “whether
he can be truly impartial when trying the case.”
F.3d at 915.
Holland, 519
This test for actual bias “is highly personal in
nature and requires each judge in such a situation to set aside
emotion and thoughtfully examine his ability to impartially
administer justice without respect to persons.”
and internal quotations omitted).
The “extrajudicial source”
limitation also applies to § 455(b)(1).
B.
Id. (citation
Liteky, 510 U.S. at 553.
Plaintiff’s Motion is Timely
As a threshold matter, the Court considers whether or
not Plaintiff filed this Motion with reasonable promptness after
the grounds for the Motion were ascertained.
Defendants contend
that Plaintiff strategically filed this Motion to delay his
deposition and evade discovery obligations.
Although the Court
agrees that this Motion appears to be one of multiple tactics
utilized by Plaintiff to shirk his discovery obligations, the
timeliness inquiry focuses on the lapse between the filing of the
recusal motion and the acquisition of information concerning the
basis of the request.
8
Here, the undersigned’s actions with which Plaintiff
takes issue occurred as early as November 1, 2017, and as
recently as December 15, 2017.
The Motion was therefore filed
within three months of the date Plaintiff ascertained at least
one basis for seeking recusal.
Given Plaintiff’s pro se status,
and the fact that the most recent allegations took place
approximately one-and-a-half months before Plaintiff filed this
Motion, the Court finds that the Motion was timely filed.
C.
Plaintiff Fails to Present a Basis for Recusal
Plaintiff’s memorandum is largely irrelevant, with
lengthy narratives having no bearing on the requested relief.
As best the Court can discern, Plaintiff asks for recusal of the
undersigned on two grounds:
1) the undersigned’s former
affiliation with Watanabe Ing, the firm representing Defendants
and 2) the undersigned’s conduct during proceedings.
The Court
addresses each in turn.
1.
Former Affiliation With Kobayashi, Watanabe, Sugita &
Kawashima
Plaintiff erroneously claims that the undersigned has
previously worked at Watanabe Ing.
He believes that because the
undersigned was a partner at the law firm formerly known as
Kobayashi, Watanabe, Sugita & Kawashima, a conflict exists “that
should be of great concern.”
Section 455(b)(2) requires the
undersigned to recuse “[w]here in private practice he served as
lawyer in the matter in controversy, or a lawyer with whom he
9
previously practiced law served during such association as a
lawyer concerning the matter, or the judge or such lawyer has
been a material witness concerning it.”
28 U.S.C. § 455(b)(2).
The undersigned never worked at Watanabe Ing and has had no
affiliation with Kobayashi, Watanabe, Sugita & Kawashima since
joining the state bench in 1993, some 25 years ago.
Since then,
Kobayashi, Watanabe, Sugita & Kawashima underwent multiple
changes; it became Watanabe Ing & Kawashima and is now Watanabe
Ing.
Thus, the firm at which the undersigned was an associate
and a partner no longer exists.
More importantly, the undersigned never served as a
lawyer in this matter, nor has a lawyer with whom he previously
practiced law served during such association as a lawyer
concerning the matter.
Finally, the attenuated connection that
Plaintiff complains of causes no risk of prejudice, as the
undersigned can and has been impartial in administering justice.
Plaintiff has not provided any evidence, beyond mere conjecture,
that actual bias has or would result from the undersigned having
worked at a now defunct law firm that split and in part evolved
into Watanabe Ing.
Accordingly, § 455(b)(2) does not provide a
basis for recusal.
2.
Conduct During Proceedings
Plaintiff raises multiple allegations regarding the
undersigned’s conduct during proceedings, which he claims
10
evidences bias and favoritism toward Defendants.
The
accusations, all of which are highly speculative, reveal
Plaintiff’s undue suspicion:
•
During the Pre-Trial conference, Jugde [sic] Chang .
. . was sitting close to Ross Shyniyama [sic] . . .
a Watanabe lawyer, and at previous occasions while
entering the court he was sitting close to another
employee of the same company Ronald Y.K. Long [sic].
It appeared that their interaction was of an overly
friendly nature, undermining professionalism in this
case and promoting bias.
•
The Judge made several statements in order to
convince me to settle my case for $5,000 on top of
the additional $5,000 already owned [sic] to me by
the Watanabe firm, with comments being presented
such as “the money is gone’, [sic] then the Judge
visually waving hands to demonstrate their
statement. During the Pre-Trial motion, the Judge
repeatedly demonstrated impatience, being overly
defensive, irritated and using sarcasm as a means to
diminish me. These behaviors were highly
inappropriate and prejudicial. The Judge unjustly
disregarded my responses and by their [sic] comments
left me to feel psychologically coerced to accept a
$10,000.00 settlement in spite of the evidence
presented in my favor.
•
Ross and the Watanabe company are therefore
retaining the funds that I am already entitled to,
seeking to diminish me in a court setting to accept
an existing award as a compensation, something that
quite frankly should be illegal per se.
The Judge didn’t make any comment on this illegal
practice and behavior.
•
The Judge explained that the jury will be local and
he said that locals won’t be happy to hear about my
lawsuit as it would be upsetting to the local
population. This was again a diminishing and
inappropriate comment, as the local population
should quite frankly be very concerned with crimes
being committed against innocent individuals and in
support of ending such behaviors given that it would
11
place safety concerns on all community members when
allowing the perpetrator to re-offend repeatedly.
By the manner the Judge addressed this matter, I was
led to believe that he sympathized with local racism
against the non-Asian and Caucasian population,
something being far from the beliefs of the
Constitution that America was built on (equality and
legal rights, Fourteenth Amendment), hence leading
to the Judge breaching with his own oath to his
profession.
•
[T]he Judge was making assumptions as to the jury’s
responses on the matter to coerce me into making a
decision detrimental to my person. It was not, with
all due respect, the Judge’s place to suggest how
the jury would respond and in this particular case,
going to the extent to suggest that the locals would
be upset about a lawsuit of which grounds are
assault and emotional abuse towards an innocent
person. It is very odd and even more so to assume
that a fair jury would determine such an unjust
event to be just, promoting crime in our society.
•
As per the lengths of the psychological coercion
observed I nearly accepted a deal based on the
Judge’s charisma, life experience, and background
which led me to wrongly consider that perhaps I
should trust their counsel. I stopped myself in
time as I noticed how the Judge and Ross repeatedly
conversed with one another and looked each other in
the eyes when I consistently lowered my offer to
settle in order to comply with the federal
regulation. The Judge was persuasive when saying
that he had been a Judge for 22 years and a lawyer
prior to that to see if I would accept the offer.
Although I trust this information to be correct, it
was with due respect not the Judge’s place and nor
was this event in agreement with the code, as
coercing me into making a detrimental decision to my
own wellbeing [sic] based on the Judge’s background
ultimately would be a major loss to me.
•
It was of great concern and of personal distress to
me to further witness the Judge claim how Mr. Carl
Zuttermeister . . . had only attacked me at one
occasion. Given the elaboration in my lawsuit it
appeared that the Judge had not even read this
document in which I reported a long list of
12
incidents, further leading to wonder how many times
a person needs to be assaulted and abused before the
assault can be claimed as a crime and the
perpetrator faces consequences for the wrongful
termination and the months of racial discrimination.
•
The Judge demonstrated that he abused his authority
also taking me twice into a separate room, telling
me that Watanabe and SmarteCarte don’t have money to
pay me the requested amount as those funds are
already gone to pay Watanabe and their defendant’s
[sic] legal fees.
•
It is very peculiar and another matter of great
concern that the Judge would go against the federal
agencies’ ruling given such agencies are clearly
specialized and highly experienced in cases such as
mine, it appearing as if the Judge literally
disregarded these ruling and any counsel from the
federal agencies.
•
I repeatedly observed how the Judge would converse
quietly and privately with the other party’s [sic]
lawyers, remaining in their vicinity, it appearing
to me as they were being favored versus me given
that I stood alone lacking the affordability of
legal representation.
•
I found the Judge’s statement to be highly
disrespectful given the physical and emotional abuse
that I had suffered. Further, as I am the victim in
this case, both the Judge and Watanabe should
consider ceasing to diminish me as an individual.
•
Additionally, last year the Judge said the trial
couldn’t be extended but surprisingly at the most
recent hearing he claimed it to be my fault with
both the Judge and Watanabe accusing me of not being
clear. If this was the case, it should have been
mentioned before and advised in writing, not as a
blaming element during a court hearing.
•
On December 15, 2017, the Judge asked to extend the
trial for another 6 months. He was unaware that he
should give a default judgment given that Carl was a
fugitive until that day. This is yet another matter
of great concern to me.
13
•
The Judge asked Ross for Carl’s age (59) and asked
me to sympathize with Carl’s age asking me if I
received medical treatment. Gary and Carl chased
me, followed me and struck me down several times
forcibly removing my Federal Customer Board Access
clearance and my FAA badge . . . Also interestingly,
Carl’s age did not stop him from chasing and
striking a man half his age, yet his age should be
considered in terms of prosecution. The latter
emphasized the bias that the Judge provided in this
hearing towards my case.
•
The judge therefore asked me if I have medical bills
to justify my monetary request, diminishing my case
and persona showing inability to be impartial and
not willing to apply federal and state laws to this
case. Not [sic] questions were asked to Ross or
Watanabe leaving not [sic] other logical conclusion
that [sic] the judge is not fit to arbitrate this
case.
•
The Judge never responded to my concerns where I
considered filing a misconduct against Watanabe
leaving the door open to further misconduct
confusing statements and leaving the possibility to
confuse the jury sympathizing for my perpetrators.
Mot. at 3-12 (emphases in original).
The foregoing allegations speak for themselves and do
not warrant any meaningful explanation or discussion.
The Court
simply notes that a reasonable person with knowledge of all the
facts would not question the undersigned’s impartiality.
Plaintiff’s distorted perceptions are not grounded in fact or
law, particularly where, as here, he presents a revisionist
recollection of the proceedings.
As earlier noted, “‘[r]umor,
speculation, beliefs, conclusions, innuendo, suspicion, opinion,
and similar non-factual matters’ do not form the basis of a
successful recusal motion.”
Sivak, 658 F.3d at 926.
14
This Motion
rests exclusively on Plaintiff’s suspicion and speculation.
Questions regarding impartiality must emanate from
extrajudicial factors.
All of the allegations presented here
concern the undersigned’s conduct during proceedings.
However,
the basis for recusal must be “something other than rulings,
opinions formed or statements made by the judge during the course
of trial.”
554-56).
Holland, 519 F.3d at 914 (citing Liteky, 510 U.S. at
None of the purported instances of improper conduct
during proceedings, which are in any event gross
mischaracterizations by Plaintiff, would elevate this case to the
“rarest of circumstances” warranting recusal.
The knowing looks
and secret discussions between the undersigned and defense
counsel are fabrications.
That Plaintiff might have perceived
the undersigned’s interactions with defense counsel to be
improper does not make them so.
During settlement conferences, it is common practice
for the undersigned to engage in separate discussions with the
parties, and Plaintiff himself concedes that the undersigned had
a separate discussion with him.
It is also typical for the
undersigned to discuss available monetary resources and the
strengths and weakness of claims and defenses with the parties.
These practices were employed during the November 1, 2017
settlement conference.
Neither party was provided any advantage
and no reasonable person with knowledge of all the facts would
15
reasonably question the undersigned’s impartiality.
Actual bias
is lacking as well because the Court has been and will continue
to be truly impartial.
Plaintiff claims that the undersigned was defensive and
sarcastic at a hearing, and has been accusatory toward Plaintiff,
but the record reflects otherwise.
Transcripts from the
proceedings would reveal that Plaintiff has always been treated
respectfully, with the undersigned consulting Plaintiff about
future dates and deadlines and going so far as to explain the
discovery process to Plaintiff.
This case has been pending since
April 22, 2016, a period of almost two years, with limited
advancement.
The Court has accommodated Plaintiff’s requests for
continuances of deadlines, notwithstanding his attempts to delay
the discovery process and interfere with the orderly progression
of this case.
Finally, accusations that the undersigned has failed to
take certain action - addressing obstruction of justice,
“giv[ing] a default judgment”, responding to concerns about
“filing a misconduct against Watanabe” - are unfounded.
The
Court need not act sua sponte on Plaintiff’s behalf, nor act upon
verbal inquiries/requests at hearings or conferences,
particularly when such inquiries/requests have no legal basis.
Plaintiff’s misunderstanding of the law and the remedies to which
he is entitled should not be imputed to the Court as a failure to
16
act.
Unless a situation requiring Court involvement presents
itself, the Court is not required to take action, and it would be
improper for the Court to do so.
For the reasons set forth above, the Court concludes
that the undersigned need not recuse himself under § 455(a) or
(b).
CONCLUSION
In accordance with the foregoing, the Court HEREBY
DENIES Plaintiff’s Motion to Recuse, filed January 26, 2018.
IT IS SO ORDERED.
DATED:
Honolulu, Hawaii, March 22, 2018.
_____________________________
Kevin S.C. Chang
United States Magistrate Judge
CIVIL NO. 16-00192 LEK-KSC; DI GIUSTINO V. SMARTECARTE, INC., ET AL.; ORDER
DENYING PLAINTIFF’S MOTION TO RECUSE
17
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