Broughton v. Wells Fargo Company, et al

Filing 114

ORDER denying 101 Motion Concerning Honorable Terrence W. Boyle's Self Recusal Pursuant to 28 USC 455(a) and MOTION for Jury Trial ; denying 102 Motion for Extension of Time to File a motion to alter or amend the order dismissing the compl aint until a month after Judge Boyle's recusal is completed; and denying 107 Motion for Default Judgment. Signed by US District Judge Terrence W. Boyle on 4/24/2017. Copy sent to pro se plaintiff via US Mail to 2529 White Oak Rd., Raleigh, NC 27609. (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:16-CV-303-BO
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)
)
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v.
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WELLS FARGO AND COMPANY,
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INDIVIDUALLY AND AS EXECUTOR )
OF THE ESTATE OF ROBERT B.
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BROUGHTON and JOHN N. MCCLAIN, . )
JR., INDIVIDUALLY AND AS AGENT )
FOR WELLS FARGO & CO.,
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Defendants.
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CELESTE G. BROUGHTON,
Plaintiff,

ORDER

This matter is before the Court on the following motions filed by plaintiff, proceeding in
this matter prose: motion for recusal of the undersigned pursuant to 28 U.S.C. § 455(a) and for
jury trial, motion for extension of time to file a motion to alter or amend judgment pursuant to
Fed. R. Civ. P. 59(e) until one month following the undersigned's recusal, and motion for entry
of default judgment based upon decades of continuous fraud. The appropriate responses and
replies have been filed and the matters are ripe for ruling. For the reasons discussed below,
plaintiffs motions are denied.
BACKGROUND
The Court incorporates by reference as if fully set forth herein the procedural and factual
background of this matter as recited in its order of November 3, 2016. By the order, the Court
granted defendants' motions to dismiss and for judgment on the pleadings and dismissed
plaintiffs complaint in its entirety. [DE 99; 100]. The instant motions were filed following
entry of judgment.

DISCUSSION
Plaintiff seeks recusal of the undersigned pursuant to 28 U.S.C. § 455(a), which provides
that a judge shall disqualify himself in any proceeding in which his impartiality may reasonably
be questioned. "[J]udicial rulings alone almost never constitute a valid basis for a bias or
partiality motion." Liteky v. United States, 510 U.S. 540, 551 (1994) (citation omitted). "Even
remarks made 'that are critical or disapproving of, or even hostile to, counsel, the parties, or their
cases, ordinarily do not support a bias or partiality challenge."' United States v. Lentz, 524 F.3d
501, 530 (4th Cir. 2008) (citing Liteky, 510 U.S. at 540). Moreover, "[t]he alleged bias must
derive from an extra-judicial source." In re Beard, 811 F.2d 818, 827 (4th Cir. 1987). "An
extra-judicial source" is a basis "other than what the judge has learned or experienced from his
participation in the case." Sine v. Local No. 922 Int'l Bhd ofTeamsters, 882 F.2d 913, 914 (4th
Cir. 1989). Neither "opinions held by judges as a result of what they learned in earlier
proceedings" nor opinions "properly and necessarily acquired in the course of the proceedings"
have been found to be the basis of bias or prejudice that might require recusal. Liteky, 510 U.S.
at 551. "The proper test to be applied is whether another with knowledge of all of the
circumstances might reasonably question the judge's impartiality." In re Beard, 811 F.2d at 827.
Plaintiff has failed to make a showing that the undersigned's impartiality might
reasonably be questioned. Her primary bases for disqualification concern rulings by the Court
which, as noted above, almost never constitute a valid basis for disqualification. The
undersigned's maintaining of decorum in the courtroom further provides no valid basis for
disqualification. Plaintiff has failed to demonstrate that another with knowledge of all the
circumstances might reasonably question the undersigned's impartiality and the§ 455(a) motion
is denied. Plaintiff's request for jury trial is further denied. Judgment has been entered and this

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matter is closed. Plaintiffs request for an extension of time within which to file a motion to alter
or amend judgment is also denied. See Alston v. MCI Commc 'ns Corp., 84 F .3d 705, 706 (4th
Cir. 1996) (district court without the power to enlarge the time to file Rule 59 motion). Finally,
plaintiffs motion for entry of default judgment against defendants is without merit and,
, judgment aiready having been entered in this matter, is denied.
CONCLUSION
For the foregoing reasons, plaintiffs motions [DE 101; 102; 107] are DENIED.

SO ORDERED, this .a:iday of April, 2017.

~Lhk

UNITED STATES DISTRICT JUDGE

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