Alexander v. Grandview Lakes Association, Inc.

Filing 62

ORDER denying 42 Motion For Reconsideration and to Recuse. Signed by Magistrate Judge Roy Percy on 1/27/17. (bnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
EFFORT ALEXANDER
v.

PLAINTIFF
CIVIL ACTION NO.: 3:16CV190-MPM-RP

JERRY MCADAMS and
GRANDVIEW LAKES ASSOCIATION, INC.

DEFENDANTS

ORDER DENYING PLAINTIFF’S MOTION FOR
RECONSIDERATION AND TO RECUSE
Plaintiff has filed a Motion for relief from the Court’s Order denying plaintiff’s request to
disqualify defense counsel and to stay the case. Docket 42. Plaintiff’s motion seeks relief under
Federal Rule of Civil Procedure 60(b) asserting that “fraud on the court” has occurred and
requests that the Order Denying the Motion to Disqualify should be reversed and the case be
reassigned to another Magistrate Judge. Id. at 42. Specifically, plaintiff alleges that
“[d]efendants have misrepresented to the court there is no confidential information of Plaintiff
with Mr. Hisaw or Holland Law, P.C. Judge Percy, has been biased in this case.” Id. at 10.
Federal Rule of Civil Procedure 60(b) dictates that
On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the following
reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could have
been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on
an earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or
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(6) any other reason that justifies relief.
Plaintiff alleges that because there has been a fraud on the court, he is entitled to relief from Order
#41 pursuant to Rule 60(b)(3). The United States Court of Appeals for the Fifth Circuit has held
that “[a] party making a Rule 60(b)(3) motion must establish: (1) that the adverse party engaged
in fraud or other misconduct, and (2) that this misconduct prevented the moving party from fully
and fairly presenting his case.” Hesling v. CSX Transp, Inc., 396 F.3d 632, 641 (5th Cir. 2005).
The Court further noted that the moving party has the burden “of proving the misconduct by clear
and convincing evidence” and specified that “Rule 60(b)(3) ‘is aimed at judgments which were
unfairly obtained, not at those which are factually incorrect.’” Id. citing Rozier v. Ford Motor Co.,
573 F.2d 1332, 1339 (5th Cir. 1979).
While the plaintiff has made the allegation that “[d]efendants have misrepresented to the
court there is no confidential information of Plaintiff with Mr. Hisaw or Holland Law, P.C.,”
plaintiff has failed to prove any such misconduct by clear and convincing evidence. Additionally,
plaintiff has not demonstrated that any alleged misconduct has prevented him from fully and
fairly presenting his case. It appears simply that plaintiff disagrees with the ruling on his Motion
to Disqualify and believes that he should have received a different ruling. Plaintiff has not
provided evidence that the ruling on the Motion to Disqualify was obtained unfairly or as the
result of fraud, rather he appears to be claiming that the ruling was factually incorrect. Therefore,
plaintiff’s motion for relief from Order #41 pursuant to Rule 60(b) is DENIED.
In addition to seeking relief from Order #41, plaintiff requests that his case be reassigned
to another Magistrate Judge. Docket 42, p. 6. Plaintiff suggests that Judge Percy has
demonstrated an unjustifiable “biasness” against the plaintiff by continuing to preside over this

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case while recusing himself from a separate case filed by Mr. Alexander in which Lee Thames is
defense counsel. Plaintiff further alleges that Judge Percy should recuse himself because he
improperly ordered that Mr. Hisaw may continue to represent defendants in this case. In support
of the recusal, the plaintiff asserts that Judge Percy’s Order Denying the Motion to Disqualify
Counsel and the explanation provided in the Order “shows biasness that defies logical and
reasonable judges to regard the issues and clearly shows that the said order is in in [sic] favor of
the Defendants’ defense counsel Hisaw without considering the reasons and evidences produced
by the Plaintiff in his Motion and Affidavit of Brenda Alexander.” Docket 42, p. 2.
28 U.S.C. § 455 addresses disqualification of a magistrate judge and requires that “[a]ny
justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding
in which his impartiality might reasonably be questioned.” It also requires a magistrate judge to
recuse himself if “he has a personal bias or prejudice concerning a party, or personal knowledge
of disputed evidentiary facts concerning the proceeding . . .” Courts have interpreted Section
455(a) “to require recusal if a reasonable person, knowing all of the facts, would harbor doubts
concerning the judge's impartiality.” Payne v. University of Southern Mississippi, 2013 WL
3967535 (S.D. Miss. Aug. 1, 2013); citing Sensley v. Albritton, 385 F.3d 591, 599 (5th Cir. 2004).
In conducting this analysis, the reasonable person is presumed to be “well-informed, thoughtful
and objective,” as opposed to “hypersensitive, cynical, and suspicious....” Id. A motion seeking
recusal under Section 455 is entrusted to the sound discretion of the judge. Id. at 598.
Judge Percy has no prior experience with any party in this case and has no personal
relationship with defense counsel. He held case management conferences, on the record and in
open court, both in this case and in a separate case filed by plaintiff against other defendants, at

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times set back-to-back in an attempt to save plaintiff time traveling to and from court. Following
the case management conferences, Judge Percy realized he had a conflict in the other case filed
by plaintiff and held a telephonic conference with plaintiff and defense counsel in that case to
advise them he would be asking that the case be reassigned to another magistrate judge. There
was no mention of any possible recusal in this case during that teleconference or at any other
time, as Judge Percy has no conflict or reason to believe that his impartiality might reasonably be
questioned in this case, nor does he have any personal bias or prejudice concerning a party, or
personal knowledge of disputed evidentiary facts concerning the proceeding.

Following the

teleconference, plaintiff filed his motion to disqualify defense counsel in this case, and after
considering all of the motions, briefs, exhibits and case law, Judge Percy denied the motion. Only
then did plaintiff file his motion claiming Judge Percy is biased and should himself – as well as
defense counsel – be disqualified in this case. Dissatisfaction with a ruling of the court is not a
proper reason to request a recusal of the ruling judge.
Knowing all of the facts of this case and Judge Percy’s assignment to manage the case, no
reasonable person would question Judge Percy’s impartiality in this matter. Therefore, plaintiff’s
motion for Judge Percy to recuse himself and have the case reassigned to another magistrate
judge is DENIED.
Plaintiff also seeks to stay this case until the Motion Under Rule 60(b) of the Federal
Rules of Civil Procedure, to Move the Case and to Stay the Case Proceedings is decided.
Because the Motion has been decided, plaintiff’s Motion to Stay is DENIED AS MOOT.
If plaintiff desires to appeal this or any order by a magistrate judge deciding a pretrial,
non-dispositive matter, plaintiff may do so pursuant to Federal Rule of Civil Procedure 72 which

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dictates that “[a] party may serve and file objections to the order within 14 days after being served
with a copy. A party may not assign as error a defect in the order not timely objected to.”
SO ORDERED, this, the 27th day of January, 2017.
/s/ Roy Percy
UNITED STATES MAGISTRATE JUDGE

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