United States of America v. Reeves et al

Filing 44

ORDER Denying 42 Motion to Set Aside 38 Minute Order and 41 Order for Recusal. Signed by Magistrate Judge George Foley, Jr on 6/18/2013. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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UNITED STATES OF AMERICA,

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Plaintiff,
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vs.
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WAYNE REEVES, DIANE VAOGA, and
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JAMES STOLL,
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Defendants. )
__________________________________________)

Case No. 2:12-cv-01916-RCJ-GWF
ORDER
Motion to Set Aside Minute Order,
Motion to Set Aside Order, and
Motion for Recusal - #42

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This matter comes before the Court on pro-se Defendants Wayne Reeves and Diane

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Vaoga’s (“Defendants”) Motion (#42) to set aside the Court’s Minute Order (#38) and Order (#41),

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and for recusal, filed on June 11, 2013.

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BACKGROUND
On May 13, 2013, Defendants filed a Motion for Permission for Electronic Case Filing

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(#36). Defendant Reeves signed the Motion (#36) on behalf of himself and Defendant Vaoga. On

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May 16, 2013, the Court entered an Order (#37) granting Defendants’ Motion (#36). On May 20,

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2013, the Court entered a Minute Order (#38) amending its May 16, 2013 Order (#37) by setting a

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deadline of June 16, 2013 for Defendants to comply with the May 16, 2013 Order. On May 21,

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2013, Plaintiff filed a Motion (#39) to reconsider the Order (#37). Plaintiff did not object to

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allowing Defendants to file electronically in this case. Plaintiff did object, however, to Defendant

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Reeves signing the Motion (#36) on behalf of Defendant Vaoga. The Court granted Plaintiff’s

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Motion to Reconsider (#39) and withdrew its May 16, 2013 Order (#37) as to Defendant Vaoga.

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See Order, Doc. #41 at 2:3-4. The Court also cautioned Defendant Reeves against signing further

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pleadings on behalf of any party other than himself. See Order, Doc. #41 at 1:21-22. The Court

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further suggested that Defendant Vaoga file her own motion requesting permission to file

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electronically. See id. at 2:4-5.

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DISCUSSION

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I.

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Courts “possess the inherent procedural power to reconsider, rescind, or modify an

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interlocutory order for cause seen by it to be sufficient” so long as it has jurisdiction. City of L.A.,

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Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001). Reconsideration is

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appropriate if the court “(1) is presented with newly discovered evidence, (2) committed clear error

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or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling

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law.” U.S. Aviation Underwriters v. Wesair, LLC, 2010 WL 1462707, *2 (D. Nev. 2010) (citing

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Sch. Dist. No. 1J, Multnomah Cnty., Or. v. AcandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993)). “A

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motion for reconsideration is not an avenue to re-litigate the same issues and arguments upon

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which the court already has ruled.” In re AgriBioTech, Inc., 319 B.R. 207, 209 (D. Nev. 2004).

Motion to Set Aside Court Orders

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Here, Defendant has not offered any new evidence, convinced the Court its previous ruling

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was in clear error, or offered any intervening change in law that would cause the Court to revisit its

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previous rulings. Rather, Defendant Reeves recites inapposite case law and attempts to raise issues

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the Court has already ruled upon. The proper authority is unequivocal that a pro-se defendant may

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not sign pleadings on behalf of another party. See, e.g., C.E. Pope Equity Trust v. United States,

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818 F.2d 696, 697 (9th Cir. 1987). The Court therefore finds no grounds to reconsider its previous

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Orders (#38, #41). Defendant Vaoga is still free to file her own motion for permission to file

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electronically. Despite the Court’s previous admonishment, Defendant Reeves signed the instant

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Motion (#42) on behalf of himself and Defendant Vaoga. The Court again instructs Defendant

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Reeves not to file any pleadings on behalf of any party other than himself.

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II.

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Defendants also request the undersigned to recuse himself under 28 U.S.C. §§ 144 and 455.

Motion for Recusal

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Recusal may be appropriate when “a party to the proceeding makes a showing of the present

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judge’s personal bias or prejudice in a timely and sufficient affidavit.” United States v. Azhocar,

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581 F.2d 735, 737-38 (9th Cir. 1978). However, a party cannot cite conduct or rulings made during
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the course of the proceedings as the basis for recusal. See Toth v. Trans World Airlines, 862 F.2d

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1381, 1387-88 (9th Cir. 1988) (recusal is proper under 28 U.S.C. §§ 144 and 455 “only if the bias

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or prejudice stems from an extrajudicial source and not from conduct or rulings made during the

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course of the proceeding.”). Defendants allege partiality in the manner in which this Court has

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ruled on previous motions. The Court therefore finds that Defendants do not establish good cause

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for recusal under 28 U.S.C. § 144 or § 455. Accordingly,

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IT IS HEREBY ORDERED that Defendants Reeves and Vaoga’s Motion (#42) to Set
Aside Minute Order (#38) and Order (#41) and for Recusal is denied.
DATED this 18th day of June, 2013.

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___________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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