Duncan v. Louisiana State et al

Filing 49

ORDER AND REASONS denying 39 Motion for Sanctions; denying 40 Motion for Recusal. Signed by Judge Ivan L.R. Lemelle. (ijg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOHNNY DUNCAN

CIVIL ACTION

VERSUS

NO. 15-5486

LOUISIANA STATE, ET AL.

SECTION "B"(1)
ORDER AND REASONS

Before the Court are two motions filed by pro se plaintiff
Johnny Duncan (hereinafter “Duncan” or “Plaintiff”). The first is
“Plaintiff’s Fed. R. Civ. Procedure, Rule 11 Motion for Sanctions
Against Defendants Tangipahoa Parish Registrar of Voters John
Russell and Tangipahoa Parish Registrar of Voters.” Rec. Doc. No.
39. The second is “Plaintiff’s Motion for Recusal of Judge Ivan
Lemelle, Pursuant [to] 28 U.S.C. §455(a).” Rec. Doc. No. 40. For
the reasons outlined below,
IT IS ORDERED that the motions are DENIED.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Duncan filed the instant lawsuit as a result of the alleged

denial of his right to vote in a Louisiana primary election in
October of 2015. The litigation is only in its infancy. However,
Plaintiff seeks sanctions on two opposing parties as well as the
undersigned’s recusal due to the following sequence of events. On
December 16, 2015, Plaintiff filed a motion for entry of default
as well as a motion for default judgment against the Tangipahoa
Parish Registrar of Voters, John Russell, as well as the Tangipahoa
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Parish

Registrar

of

Voters

Office

(hereinafter

collectively

referred to as “Defendants”). Rec. Docs. 24, 25. As Defendants
failed to timely file responsive pleadings, Duncan sought an entry
of

default

and

then

a

default

judgment

for

one-quarter

of

$1,000,000,000.00. The following day, Defendants filed a motion to
enroll counsel as well as a motion for extension of time to answer.
Rec. Docs. 21-22.
Thereafter, this Court issued an Order addressing all four of
the pending motions. The Court denied both of Plaintiff’s motions
concerning default and granted both of Defendants’ motions. As
this Court explained in that Order, the Defendants’ subsequent
appearance demonstrating an intent to defend rendered the motions
for default futile. Accordingly, the Court denied the motions and
granted Defendants an extension of time to plead pursuant to Local
Rule 7.8. Plaintiff has taken issue with that result.
On January 6, 2016, Duncan filed objections to the Court’s
Order in which he accused the Court of failing to provide good
cause for its decision and, in addition, accused the Court of
committing plain error and abusing its discretion by opting to
decide this case on the merits. Rec. Doc. 37 at 2-3. That same
day, Plaintiff filed the instant motion for sanctions based on the
Defendants’ alleged failure to properly serve him with the motion
to enroll and the motion for extension of time within which to
plead. Next, Plaintiff filed the motion for recusal based upon the
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Court’s decision not to grant his motions for default. He alleges—
without any support for his accusations—that this Court’s decision
was

based

on

discriminatory

intent.

Namely,

that

this

Court

discriminated against him because of his race and/or his status as
a pro se litigant. Additionally, Plaintiff claims—also without any
support—that this Court’s decision resulted from improper ex parte
communications with the Attorney General.
II.

LAW AND ANALYSIS

The Court will first address Duncan’s motion for recusal,
recognizing a need to resolve this issue before deciding the fate
of any additional motions.
a. Motion for Recusal
Duncan urges the undersigned to recuse himself pursuant to 28
U.S.C. § 455.

Section 455 provides: “Any justice, judge, or

magistrate judge of the United States shall disqualify himself in
any proceeding in which his impartiality might reasonably be
questioned.” Id. The United States Court of Appeals for the Fifth
Circuit described this as an objective test, stating that a judge
“should disqualify himself ‘if the reasonable man, were he to know
all the circumstances, would harbor doubts about the judge’s
impartiality.’” IQ Products Co. v. Pennzoil Products Co., 305 F.3d
368, 379 (5th Cir. 2002) (quoting Potashnick v. Port City Constr.
Co., 609 F.2d 1101, 1111 (5th Cir. 1980)).

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The primary basis for the alleged impartiality is this Court’s
decision to refuse entry of default judgment. Plaintiff’s filings
demonstrate a fundamental misunderstanding of this Court’s prior
Order as well as the purpose behind default judgments. Rather than
take the time to familiarize himself with the applicable Federal
Rules

of

Civil

Procedure

and

the

relevant

jurisprudence

interpreting those rules, Duncan has decided to rely only upon his
own strict interpretation.
However, the Fifth Circuit has instructed that “[d]efault
judgments are a drastic remedy, not favored by the Federal Rules
and resorted to by courts only in extreme situations.” Sun Bank of
Ocala v. Pelican Homestead and Sav. Ass’n, 874 F.2d 274, 276 (5th
Cir. 1989).

Further, the Fifth Circuit has stated that “[a] party

is not entitled to a default judgment as a matter of right, even
where the defendant is technically in default.” Ganther v. Ingle,
75 F.3d 207, 212 (5th Cir. 1996). “Generally, the entry of default
judgment is committed to the discretion of the district judge.”
Mason v. Lister, 562 F.2d 343, 345 (5th Cir. 1977) (citing Wright
& Miller, Federal Practice and Procedure § 2685). As made clear in
the Order denying entry of default and default judgment,1 “the
court may consider whether it later would be obliged to set aside

In its reasons for denying the entry of default, this Court stated that
“entering default in this case would prove to be a waste of time as the entry
of default would inevitably be set aside due to the Defendant’s recent
appearance.” Rec. Doc. 26 at 2.
1

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the default on defendant’s motion, since it would be meaningless
to enter the judgment as a matter of course if that decision meant
that the court immediately would be required to take up the
question of whether it should be set aside.” Wright & Miller,
Federal Practice and Procedure § 2685. This Court, like many
others, “make[s] every effort to decide a case on its merits rather
than rule on a technicality,” and the earlier decision to follow
this

principle

was

not

in

error

as

Plaintiff

alleges.

JMC

Construction LP v. Modular Space Corp., No. 07-1925, 2008 WL
4531819, at *1 (Oct. 8, 2008 N.D. Tex.).
Beyond that, Duncan makes the assumption that, because his
motions were denied, the undersigned must have some ulterior
motive. Accordingly, Plaintiff concludes that the undersigned must
be

discriminating

communications
unfounded.

with

against
opposing

Consequently,

no

him

and/or

counsel.
reasonable

holding
Both

ex

assertions

person,

knowing

parte
are
and

understanding all of these circumstances, could harbor doubts
concerning the partiality of the undersigned. Plaintiff has simply
wasted this Court’s time and resources with unsubstantiated and
fictitious allegations of impropriety. The motion for recusal is
therefore denied.
b. Motion for Sanctions
Plaintiff urges this Court to sanction Defendants for their
alleged failure “to abide by local and federal rules and provide
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plaintiff with a copy of their motions to enroll and for time
extension.” Rec. Doc. 39 at 2. Plaintiff claims that the defendants
violated Rule 5(b)(2)(C) of the Federal Rules of Civil Procedure
because

he

never

received

a

copy

of

the

motions

from

the

defendants. Rec. Doc. 39 at 2. In addition to “any other sanctions
that the Court may deem appropriate,” Plaintiff would like the
Court to deny Defendants’ pending motions to dismiss. Rec. Doc. 39
at 2.
Defendants’

Certificates

of

Service

accompanying

their

motions certified that, upon filing, they would provide copies of
the motions to Plaintiff via U.S. Mail as Plaintiff is not a CM/ECF
participant. Rec. Docs. 21 at 2; 22 at 2. Rule 5(b)(2)(C) permits
this method of service, stating: “A paper is served under this
rule by . . . mailing it to the person’s last known address-in
which event service is complete upon mailing. FED. R. CIV. P.
5(b)(2)(C) (emphasis added). Importantly, Plaintiff

bases his

claim on the allegation that he never received the motions. He
does not contend that Defendants never mailed them, and the Court
has no reason to believe that Defendants did not serve them as
they certified in their motions. Receipt is not the relevant
question for determining proper service, whether they were mailed
is the important inquiry. Accordingly, Plaintiff’s motion does not
plead facts to support the allegation of improper service.

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Moreover, Plaintiff invokes Rule 11 without identifying which
portion of Rule 11 warrants sanctions. A motion for sanctions “must
describe the specific conduct that allegedly violates Rule 11(b).”
FED.

R.

CIV.

P.

11(c)(2).

Rule

11(b)

identifies

certain

representations that attorneys make when they present written
motions to the Court—none of which address service. FED. R. CIV. P.
11(b). Plaintiff has therefore not identified specific conduct
that could be construed as a violation of Rule 11(b). Finally, the
requested relief—dismissal of unrelated pending motions—is not an
appropriate sanction under Rule 11. See FED. R. CIV. P. 11(c)(4)
(“A sanction imposed under this rule must be limited to what
suffices to deter repetition of the conduct or comparable conduct
by others similarly situated.”).
For the reasons discussed above,
IT IS ORDERED that Plaintiff’s motions are DENIED.
New Orleans, Louisiana, this 27th day of January, 2016.

____________________________
UNITED STATES DISTRICT JUDGE

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