Peroulis v. Kozak et al

Filing 241

ORDER Denying 234 Motion for Recusal of District Judge; and Denying 236 Motion for District Judge to Reconsider Order. Signed by Judge James C. Mahan on 7/28/11. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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TONY PEROULIS,

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Plaintiff,
v.

2:07-CV-284 JCM (GWF)

Date:
Time:

N/A
N/A

PAUL KOZAK a/k/a ZACHARY
KRISTON a/k/a ZACHARY KING, an
individual, et al.,
Defendants.

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ORDER

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Presently before the court is defendant Paul Kozak a/k/a Zachary Kriston’s motion requesting

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recusal (doc. #234). Also before the court is defendant’s motion for reconsideration (doc. #236) of

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the order granting partial summary judgment for the plaintiff on May 16, 2011 (doc. #231). Plaintiff

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Tony Peroulis filed an opposition (doc. #237). Defendant filed a reply (doc. #239).

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This case stems from a failed business arrangement between the parties. When the

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relationship soured, this action commenced, and the court entered final judgment in favor of the

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plaintiff for $4,900,000 (doc. #147). The court’s decision was affirmed by the Ninth Circuit Court

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of Appeals (doc. #190).

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Defendant now seeks recusal of the presiding judge, District Judge James C. Mahan (doc.

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#234). He also seeks to have the order granting defendant partial summary judgment (doc. #231)

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reconsidered (doc. #236).

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James C. Mahan
U.S. District Judge

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I.

MOTION REQUESTING RECUSAL (DOC. #234)

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Defendant requests the undersigned to recuse himself from further proceedings in accordance

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with 28 U.S.C. §§ 144 and 445. “A judge is required to disqualify himself if his impartiality might

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reasonably be questioned, or if he has personal bias or prejudice for or against a party.” Hasbrouck

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v. Texaco, Inc., 842 F.2d 1034, 1045 (9th Cir. 1987) (citing 28 U.S.C. § 455). Pursuant to § 144, a

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party seeking recusal must set forth, by affidavit, facts and reasons for belief that bias or prejudice

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exists. See 28 U.S.C. § 144.

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“Although the substantive test for bias or prejudice is identical in sections 144 and 455, the

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procedural requirements of the two sections are different.” United States v. Sibla, 624 F.2d 864, 867

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(9th Cir. 1980). Under section 144, the judge against whom recusal is sought makes the initial

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determination of legal sufficiency of the motion before another judge may be assigned to hear the

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motion. Hussein v. University and Community College System of Nevada, 2010 WL 3385298 at *1

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(citing United States v. Azhocar, 581 F.2d 735, 738 (9th Cir. 1978)). Unlike section 144, section 445

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is a self enforcing statute empowering the judge against whom recusal is being sought to make the

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ultimate decision on its validity. Hussein, 2010 WL 3385298 at *2 (citing Liljeberg v. Health Serv.

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Acquisition Corp., 486 U.S. 847, 867-68 (1988)).

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Under either section, the standard for recusal is “whether a reasonable person with knowledge

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of all the facts would conclude that the judge’s impartiality might be questioned.” United States v.

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Studley, 783 F.2d 934, 939 (9th Cir. 1986). Alleged prejudice must come from an extrajudicial

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source, and neither a judge’s prior adverse ruling nor a litigant’s suit or threatened suit against a

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judge is sufficient cause for recusal. Id. at 939-40.

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Defendant asserts that he has “experienced great prejudice and personal bias demonstrated

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by Magistrate Judge Foley and District Judge Mahan.” (doc. #234). Defendant’s primary justification

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for recusal is his disagreement with adverse judgments previously rendered against him by this court

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(see doc. #234). This is an insufficient reason for recusal. See Studley, 783 F.2d at 939. Accordingly,

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the defendant’s motion requesting recusal is denied.

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James C. Mahan
U.S. District Judge

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II.

MOTION FOR RECONSIDERATION (DOC. #236)

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“Reconsideration is appropriate if the district court (1) is presented with newly discovered

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evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an

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intervening change in controlling law.” School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th

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Cir. 1993); see FED. R. CIV. P. 59(e); see also FED. R. CIV. P. 60(b).

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Pursuant to LR 6-1, any “request made after the expiration of the specified period shall not

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be granted unless the moving party . . . demonstrates that the failure to act was the result of excusable

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neglect.” The Ninth Circuit dictates that a district court must apply a four-factor equitable test to

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determine if a party's failure to meet a deadline constitutes “excusable neglect.” Ahanchian v. Xenon

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Pictures, Inc., 624 F.3d 1253, 1261 (9th Cir. 2010). The four factors to consider are: “(1) the danger

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of prejudice to the opposing party; (2) the length of the delay and its potential impact on the

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proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith.” Id. (citing

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Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993)).

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On May 16, 2011, this court granted partial summary judgment to the plaintiff (doc. #231)

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and declined to consider previously undisclosed evidence that was submitted by defendant over three

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years after discovery ended on November 14, 2007. Defendant urges that the court consider this

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evidence because defendant was unable to fully participate in discovery due to incarceration (doc.

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#236).

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However, the application of the Pioneer four factor test weighs against a finding of excusable

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neglect. First, there is the danger that the more than three-year delay could prejudice the

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plaintiff—memories could have faded, documents could have been lost, and numerous other

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misfortunes likely have occurred over the duration of the delay. This also speaks to the second factor,

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as the delay lasted a substantial amount of time, which could very seriously impact the proceedings.

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Third, there is no sufficient reason for the delay. Defendant refused to participate in a rule 26(f)

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conference to discuss discovery matters and failed to file any motion to extend the discovery

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deadline (doc. #237). Defendant also proved capable of participating in discovery and of filing

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motions with the court during his incarceration. Finally, defendant never disclosed this new

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James C. Mahan
U.S. District Judge

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information to the opposing party prior to presenting it to the court, effectively hamstringing any

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opportunity for plaintiff to address and respond to the evidence. Therefore, there are no viable

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grounds for reconsideration, and the motion is denied.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendant’s motion

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requesting recusal (doc. # 234) be, and the same hereby is, DENIED.
IT IS FURTHER ORDERED that the defendant’s motion for reconsideration (doc. #236) be,
and the same hereby is, DENIED.
DATED this 28th day of July, 2011.

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___________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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