Cave v. National Default Servicing Corporation et al

Filing 44

ORDER that 34 Motion for Relief from Judgment under FRCP 60(b) is DENIED. FURTHER ORDERED that 35 Motion for Recusal of District Judge is DENIED. Signed by Judge James C. Mahan on 3/17/16. (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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CHRIS H. CAVE,

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Plaintiff(s),

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Case No. 2:15-CV-122 JCM (VCF)
ORDER

v.
NATIONAL DEFAULT SERVICING
CORPORATION, et al.,
Defendant(s).

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Presently before the court is pro se plaintiff Chris Harold Cave’s motion for relief from
judgment under FRCP 60(b). (Doc. # 34). Also before the court is pro se plaintiff Chris Harold
Cave’s motion for recusal of the district judge.1 (Doc. # 35). Defendant J.P. Morgan Chase Bank,
N.A. filed a response to both motions. (Doc. # 37). Plaintiff filed what appear to be replies. (Doc.
## 41, 43).
Plaintiff’s motions are unorganized, rambling, and largely incoherent. It appears that
plaintiff seeks relief from the court’s order granting defendants’ motion to dismiss his complaint
and the subsequent clerk’s judgment entered against plaintiff. (Doc. ## 32, 33). He contends that
defendants engaged in misconduct through their “improper pre-mature pre-discovery [sic.].” (Doc.
# 34 at 3).

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Mr. Cave’s motions are contained in a single filing, which the clerk docketed as two
separate motions. The document also purports to also be a notice of appeal. To the extent it was
plaintiff’s intent to file a notice of appeal, he failed to comply with the requirements of Federal
Rule of Appellate Procedure 3(c). If plaintiff wishes to appeal the court’s order and judgment (doc.
## 32, 33), he must file a separate notice of appeal consistent with FRAP 3(c).
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James C. Mahan
U.S. District Judge

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Plaintiff also moves for recusal of the undersigned pursuant to 28 U.S.C. § 455. He accuses

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the undersigned of conspiring with the defendants. Specifically, he takes issue with the court’s

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references to non-judicial foreclosure and purported “dishonorable acts.”

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Under FRCP 60(b), a district court may grant a party relief from a judgment for the
following reasons:

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(1) mistake, inadvertence, surprise, or excusable neglect;

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(2) newly discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b);

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(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
(6) any other reason that justifies relief.

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FED. R. CIV. P. 60(b).
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Plaintiff has failed to show that he is entitled to relief based on any of the grounds listed in

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Rule 60(b). He has not alleged facts that indicate defendants engaged in any unlawful discovery

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practices. As defendants point out, it was actually plaintiff who engaged in dilatory and

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obstructionist conduct during discovery by refusing to appear for a noticed deposition under FRCP

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26(c). (See doc. # 37-1 at 34). Plaintiff has failed to establish that he is entitled to any relief from

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the court’s June 22, 2105, order. Accordingly, his motion for relief from judgment will be denied.

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28 U.S.C. § 455 establishes the framework under which a federal judge must recuse himself

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from a matter. Section 455 mandates that a district judge shall disqualify himself from any

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proceeding in which his impartiality might reasonably be questioned and under the following

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circumstances:

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James C. Mahan
U.S. District Judge

(1) [w]here he has a personal bias or prejudice concerning a party, or personal
knowledge of disputed evidentiary facts concerning the proceeding;
(2) [w]here in private practice he 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;

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(3) [w]here he has served in governmental employment and in such capacity
participated as counsel, adviser or material witness concerning the proceeding or
expressed an opinion concerning the merits of the particular case in controversy;
(4) [h]e knows that he, individually or as a fiduciary, or his spouse or minor child
residing in his household, has a financial interest in the subject matter in
controversy or in a party to the proceeding, or any other interest that could be
substantially affected by the outcome of the proceeding;
(5) [h]e or his spouse, or a person within the third degree of relationship to either
of them, or the spouse of such a person:
(i) [i]s a party to the proceeding, or an officer, director, or trustee of a party;
(ii) [i]s acting as a lawyer in the proceeding;
(iii) [i]s known by the judge to have an interest that could be substantially
affected by the outcome of the proceeding;
(iv) [i]s to the judge’s knowledge likely to be a material witness in the
proceeding.

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28 U.S.C. § 455.

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Plaintiff’s vague allegations that the undersigned has conspired with the defendants in this

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matter have no basis in fact. He appears to take issue with Nevada’s process for non-judicial

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foreclosure and this court’s enforcement of that process, which is of course no basis for recusal.

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He has failed to establish any basis on which the undersigned’s impartiality might be reasonably

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questioned. He has also failed to show that any of the circumstances listed in § 455(b) are present

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in this matter. The undersigned will not recuse himself.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that pro se plaintiff Chris

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Harold Cave’s motion for relief from judgment under FRCP 60(b) (doc. # 34) be, and the same

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hereby is, DENIED.

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IT IS FURTHER ORDERED that pro se plaintiff Chris Harold Cave’s motion for recusal
of the district judge (doc. # 35) be, and the same hereby is, DENIED.
DATED March 17, 2016.
__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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