Weaver v. Indymac Federal Bank, FSB

Filing 163

MEMORANDUM & ORDER denying 162 Motion for Recusal. For the foregoing reasons, Weaver's motion [dkt. no. 162] is denied. The Clerk of the Court shall close the open motion. SO ORDERED. (Signed by Judge Loretta A. Preska on 11/20/2019) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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:

EVERETTE WEAVER,

09 Civ. 5091 (LAP)

Plaintiff,

MEMORANDUM

- v. -

&

ORDER

INDYMAC FEDERAL BANK, FSB, et al.,
Defendants.

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LORETTA A. PRESKA, Senior United States District Judge:
Plaintiff Everette Weaver ("Weaver") moves for my recusal
and for an order vacating all orders and judgments entered in
this case since it was remanded from the Second Circuit Court of
Appeals on August 27, 2013.

See Notice of Motion ("Motion"),

dated Nov. 8, 2019 [dkt. no. 162] .)

For the reasons stated

below, Weaver's motion is DENIED.
I.

Motion for Recusal

Weaver's recusal motion is governed by 28 U.S.C.

§

455,

which provides that 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" or "[w]here he has a personal bias or prejudice
concerning a party." See 28 U.S.C.

§§

455(a),

(b) (1). These

provisions serve "to promote confidence in the judiciary by
avoiding even the appearance of impropriety whenever
possible."

Liljeberg v. Health Servs. Acquisition Corp., 486
1

U.S. 847, 865

(1988).

When applying§ 455(a), courts examine

whether "an objective, disinterested observer fully informed of
the underlying facts,

[would] entertain significant doubt that

justice would be done absent recusal."

United States v.

Lovaglia, 954 F.2d 811, 815 (2d Cir.1992).

The Second Circuit

Court of Appeals has cautioned that when answering this
question, "the grounds asserted in a recusal motion must be
scrutinized with care, and judges should not recuse themselves
solely because a party claims an appearance of partiality."

In

re Aguinda, 241 F.3d 194, 201 (2d Cir.2001); see also Canino v.
Barclays Bank, PLC, No. 94 Civ. 6314
(S.D.N.Y. Jan. 7, 1998)

(SAS), 1998 WL 7219, at *3

("The statute does not compel

disqualification simply on unfounded innuendo concerning the
possible partiality of the presiding judge." (quotation marks
and citation omitted)).
Weaver's motion is full of "unfounded innuendo" and devoid
of any valid basis for recusal under §§ 455 (a) or (b) (1).
Although Weaver raises an assortment of conclusory reasons as to
why I should recuse myself, at its core, his motion reflects
disagreement with the Court's September 9, 2019 Order [dkt. no.
158]

(the "September 2019 Order") dismissing his Third Amended

Complaint on collateral estoppel grounds.
28-34.)

(See, e.g., Motion at

But it is axiomatic that "[a] district judge's prior

decisions averse to a [party] do not merit recusal," Petrucelli
2

v. United States, No. 14 Civ. 9310, 2015 WL 5439356, at *5
(S.D.N.Y. Sept. 15, 2015)

(citing Smith v. United States, 554

Fed. App'x 30, 32 (2d Cir. 2013)), and Weaver's unsupported
assertions of bias and impropriety would not lead any objective,
informed observer to doubt that justice can be delivered in this
case without recusal.
II.

Weaver's motion to recuse is denied.

Motion to Vacate Prior Orders

Weaver also asks the Court to vacate all orders and
judgments entered in this case pursuant to Federal Rule of Civil
Procedure 60 (b) (1) and (b) (6).

His request is denied.

Under Rule 60(b) (1), the court may grant relief from an
order on grounds of "mistake, inadvertence, surprise, or
excusable neglect."

Fed. R. Ci v. P. 60 (b) ( 1) .

Al though "Rule

60(b) (1) may provide relief from judicial mistake, it should not
provide a movant an additional opportunity to make arguments or
attempt to win a point already carefully analyzed and
justifiably disposed."

Serrano v. Smith, No. 05 Civ. 1849

(KTD), 2009 WL 1390868, at *2 (S.D.N.Y. May 13, 2009)
quotation marks and citations omitted).

(internal

Weaver's arguments

about "material errors" in the September 2019 Order (see Motion
at 34-35; see also id. at 28-34) are nothing more than thinly
veiled attempts to relitigate issues already resolved in a
thorough, carefully reasoned, 36-page opinion.
valid basis for Rule 60 (b) ( 1) relief.
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That is not a

Weaver's Rule 60(b) (6) argument is similarly unavailing.
Rule 60(b) (6) is a catchall provision that permits the court to
grant relief for any justifiable reason other than those
expressly enumerated in Rule 60(b).
60(b) (6).

See Fed. R. Civ. P.

The Second Circuit Court of Appeals has commented

"that a proper case for Rule 60 (b) ( 6) relief is only one of
extraordinary circumstances, or extreme hardship."
United States, 367 F.3d 74, 81 (2d Cir. 2004)
internal quotation marks omitted).
cases.

Harris v.

(citation and

This is not one of those

Like his recusal motion, Weaver predicates his Rule

60(b) (6) argument primarily on unsubstantiated claims of bias,
conflicts of interest, and obstruction of justice.
at 34-37.)

(See Motion

Beyond these conclusory claims, Weaver offers no

facts whatsoever showing the extraordinary circumstances or
extreme hardship needed to support relief under Rule 60(b) (6).
III. Conclusion
For the foregoing reasons, Weaver's motion [dkt. no. 162]
is denied.

The Clerk of the Court shall close the open motion.

SO ORDERED.

Dated:

New York, New York
November
2019

:J/1,

~(2~

LORETTA A. PRESKA
•
SENIOR U.S. DISTRICT JUDGE

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