Johansen v. Presley et al
Filing
121
ORDER ADOPTING REPORTS AND RECOMMENDATIONS DE 75 and DE 112 , Dismissing Garibaldi DE 99 , Denying Motion for Sanctions, Denying Appeals, Denying MOtions for Recusals DE 116 and DE 120 and Denying Leave DE 119 signed by Judge John T. Fowlkes, Jr. on 3/6/14. (Fowlkes, J.)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
)
)
LISA JOHANSEN,
)
)
Plaintiff,
)
)
)
)
vs.
)
)
)
PRISCILLA PRESLEY,
)
NAVARONE GARIBALDI,
)
ELVIS PRESLEY ENTERPRISES, INC.,)
and CKX, INC.,
)
)
Defendants.
)
)
No. 11-cv-3036-JTF-dkv
ORDER ADOPTING THE MAGISTRATE’S REPORTS AND RECOMMENDATIONS, ORDER
GRANTING DEFENDANT’S ORE TENUS MOTION TO DISMISS, GRANTING
GARIBALDI’S MOTION TO DISMISS, ORDER DENYING PLAINTIFF’S MOTION FOR
SANCTIONS, ORDER DENYING PLAINTIFF’S APPEAL OF DENIAL OF MOTION TO
AMEND FACTFINDING, ORDER DENYING MOTIONS FOR RECUSAL, AND ORDER
DENYING MOTION FOR LEAVE
________________________________________________________________
Before the Court are the Magistrate Judge’s Reports and
Recommendations filed on June 24, 2013 and October 4, 2013 regarding
the Ore Tenus Motion to Dismiss Priscilla Presley and Defendant’s
Motion to Dismiss Navarone Garibaldi.
(DE #75 and DE #112).
On July
3, 2013 and on October 18, 2013, Plaintiff filed Objections to the
reports and recommendations, respectively. (DE #85 and DE #113/DE
#114).
The Court has reviewed de novo the Magistrate Judge’s Reports
and Recommendations, the legal analyses, Plaintiff’s objections in
addition to the entire record.
For the reasons stated below, the
1
Court overrules Plaintiff’s objections and finds the Magistrate
Judge’s
Reports
and
Recommendations
should
be
Adopted,
the
Defendants’ Motions to Dismiss pursuant to Fed. R. Civ. 4 (m) and
Fed. R. Civ. P. 41(b) should be Granted and the case Dismissed with
prejudice.
I.Findings of Fact and Procedural History
On November 21, 2011, Plaintiff, a Swedish resident currently
living in Florida, filed a complaint against Defendants, Priscilla
Presley, Navarone Garibaldi (Presley’s son), Graceland/Elvis
Presley Enterprises, Inc. (EPE), Core Media Group f/k/a CKX, Inc.
(owner and operators of Graceland), and unknown parties a/k/a DOES
1-100. Plaintiff contends that after twenty years of investigations
she discovered that she is the rightful Lisa Marie Presley and
daughter of Elvis Presley.1
Plaintiff asserts that despite the Defendants’ knowledge of her
claims,
counsel
for
the
Defendants
sent
a
threatening
and
intimidating letter to her and her daughter dated August 16, 2011,
in order to discourage Plaintiff from contacting authorities to
report the alleged identity theft and fraud charges. Plaintiff
further claims the letter contained false, defamatory and libelous
statements regarding Plaintiff that caused her to suffer harm and
1 Plaintiff also filed a similar action in this Court against various Denmark and
Swedish defendants, Case No. 13-2191-JTF-cgc that was dismissed by this Court on
Monday, February 24, 2014.
2
emotional distress leading to this action.
Adopting the Magistrate
Judge’s proposed findings of fact, the complaint alleges four causes
of action: 1) violation of 18 U.S.C. § 1512; 2) libel per se; 3) libel
and 4) intentional infliction of emotional distress.
On June 5, 2012, the Court entered an Order to Show Cause why
the claims should not be dismissed for failure to effect service
pursuant to Fed. R. Civ. 4(m) and for failure to prosecute pursuant
to Fed. R. Civ. 41.
Plaintiff filed Certificate/Attestations of
Service and several motions for Default Judgments against the
Defendants.
(DE #10, DE #27-DE #30).
A response in opposition to
motion for default was filed by the individual Defendants on June
22, 2012.
(DE #31). On September 19, 2012, the Court subsequently
granted Plaintiff an additional sixty (60) days in which to properly
serve the Defendants.
(DE #33).
On February 21, 2013, Plaintiff
filed a Motion to Amend its Factfinding and Judgments. (DE #46). The
Corporate Defendants Core Media Group f/k/a CKX, Inc. and Elvis
Presley Enterprises (“EPE”) filed a Motion to Dismiss or for Summary
Judgment on December 5, 2012.2 (DE #38).
On June 4, 2013, the matter was referred to the Magistrate Judge
for administration, determination, or for report and recommendation
2 The Court entered an order granting default against Garibaldi on February 2,
2013, DE #44, that was set aside on June 20, 2013. DE #69. Plaintiff was directed
to serve Garibaldi no later than July 5, 2013. In his Motion to Dismiss , Garibaldi
confirms that Plaintiff properly served his attorney on July 5, 2013. DE #99 and
DE #99-1.
3
of all preliminary and pretrial matters pursuant to 28 U.S.C. § 636
(b) and Fed. Rule Civ. P. 1. 3
(DE #60). On June 20, 2013, the
Magistrate Judge set a Rule 26(b) Scheduling Conference as well as
a hearing on all pending motions.
During the hearing, Defendant
Presley made an oral motion to dismiss for failure to timely effect
service of process pursuant to Fed. R. Civ. P. 4(m).
On June 21,
2013, the Magistrate Judge entered an Order Denying Plaintiff’s
Motion to Amend Factfinding and Judgments pursuant to Fed. R. Civ.
P. 52(A)(6). (DE #70). On June 24, 2013, the Magistrate Judge issued
her Report and Recommendation regarding Defendant’s Ore Tenus
Motion to Dismiss Priscilla Presley , DE #75, to which Plaintiff filed
her objections on July 3, 2013. On June 27, 2013, the Magistrate Judge
entered her Report and Recommendation to dismiss Defendants CKX and
EPE that was adopted by this Court on October 2, 2013. (DE #111).
Defendant Garibaldi similarly filed a Motion to Dismiss for
failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) on July
10, 2013. (DE #99). The Magistrate Judge issued her Report and
Recommendation regarding this motion on October 4, 2013, DE #112,
to which Plaintiff filed objections on October 18, 2013.
(DE #114
and DE #115).
The Court ADOPTS the Magistrate’s Reports and Recommendations
to Dismiss Defendants Priscilla Presley and Navarone Garibaldi for
the reasons set out below.
Also, the Court DENIES Plaintiff’s Motion
for Sanctions, DENIES Plaintiff’s Appeal of the Magistrate’s Denial
3 The referred pending motions included DE #38, DE #39, DE #44, DE #45, DE #48,
DE #49, DE #51 and DE #54. Several motions have already been resolved leaving
the two reports and recommendations, DE #75 and #DE #112, addressed in this Order.
4
of Motion to Amend Factfinding, DENIES Plaintiff’s Motion for
Recusal, and DENIES Plaintiff’s Amended Motion to Appeal the Denial
of Default against Priscilla Presley and Denies Leave to file A Notice
of Appeal. (DE #70, DE #82, DE #116, and DE #119).
I.
LEGAL STANDARD
After referring a dispositive motion to a Magistrate Judge pursuant
to 28 U.S.C. § 636(b)(1)(B), the district judge must review de novo
a magistrate judge’s proposed findings of fact and recommendations
in dispositive motions. The rules provide:
Within fourteen days after being served with a copy, any
party may serve and file written objections to such
proposed findings and recommendations as provided by the
rules of court. A judge of the court shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection
is made. A judge of the court may accept, reject, or modify,
in whole or in part, the findings or recommendations made
by the magistrate judge. The judge may also receive
further evidence or recommit the matter to the magistrate
judge with instructions.
See 28 U.S.C. §636 (b)(1)(B) and (C); Fed. Rule Civ. P. 72(b);
Baker
v. Peterson, 67 Fed. App’x. 308, 311 (6th Cir. 2003). In applying
the de novo standard, Congress afforded the district judge sound
discretion to rely on the Magistrate Judge’s proposed findings and
determinations.
U.S. v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406,
2412, __ L.Ed.__ (1980); Matthews v. Weber, 423 U.S. 261, 275 (1976).
The Court need not conduct a de novo hearing, but must make a de novo
determination based on the record only to matters involving disputed
5
facts and findings. Mira, 806 F.2d at 637.
However, de novo review
is not required when the objections to the report and recommendation
are frivolous, conclusive or general. Mira v. Marshall, 806 F.2d 636,
637 (6th Cir. 1986).
II. ANALYSIS
A.
Report and Recommendation On Ore Tenus Motion
of Presley for Dismissal Pursuant to Rule 4(m)-(DE #75)
The Magistrate Judge properly determined that Presley’s Ore
Tenus Motion to Dismiss without prejudice should be granted pursuant
to Fed. R. Civ. P. 4(m) for ineffective service of process or, in
the alternative, as additional grounds, that Presley should be
dismissed with prejudice pursuant to Fed. R. Civ. P. 41(b) for
Plaintiff’s failure to prosecute.
Specifically, the Magistrate
concluded that Plaintiff’s attempt to serve Presley by mail was
ineffective under Tennessee law because the registered mail receipt
was not returned nor was it refused as required by Fed. R. Civ. P.
4 (e)(2). The Magistrate Judge also found service was ineffective
under
California
law
because
Plaintiff
failed
to
include
an
Acknowledgment of Receipt of Summons form to be included in the
mailing or, if she had, it was not completed and returned as evidenced
by the record.
Ca. Civ. Proc. Code §415.30(a).
The Magistrate
Judge noted that although the Court had given Plaintiff additional
time in which to properly serve the individual parties, DE #33,
6
Plaintiff did not do so nor did she hire a private process server
as she had with the corporate defendants.4 Plaintiff filed objections
to the Report and Recommendation on July 3, 2013. (DE #85).
Plaintiff objects to the Magistrate Judge’s determination that
service upon Presley was defective.
She states that she has properly
served Presley by amending the proof of service. Also, Plaintiff
contends the Hague Convention on service abroad does not require a
return receipt when utilizing an Article 10 or Article 19.
The Court
finds the provisions of the Hague Convention, a multi-national
treaty, are inapplicable to the case at issue.
Article
10
provides
methods
of
service
of
judicial
and
extrajudicial documents abroad while Article 19 permits service by
any method permitted by the internal laws of the country in which
service is made. Uppendahl v. American Honda Motor Co., Inc., 291
F.Supp.2d 531, 532 (W.D. Ky. 2003); Wilson v. Honda Motor Company,
Ltd. 776 F.Supp. 339 (E.D.Tenn. 1991).
in this case.
Neither provision applies
The individual defendant at issue in the Ore Tenus
Motion to Dismiss, Priscilla Presley, is an American citizen who
resides in the state of California.
Therefore, service of process
is not needed abroad.
4 DE #75, pp. 5-6. The Magistrate Judge also noted that Plaintiff filed a Mail
Theft Report to which the Court finds a far-reaching angle in which to avoid not
having properly served the Defendant.
7
Plaintiff’s second objection to the Magistrate Judge’s Report
and Recommendation states that the Defendant’s appearance through
counsel
at
the
pretrial
conference
constituted
an
alleged
“forfeiture” of Presley’s defective service of process. (DE #85).
Plaintiff contends:
The explicit refusal of Ms. Priscilla Presley to be
served or to authorize her counsel without inhibition
and counsel’s violation of professional conduct and
procedural law appearing at the hearing in without
inhibited authorization. [sic]See also Plaintiff’s
motion for sanctions filed simultaneously.
. . . ., in any case Ms. Priscilla Presley’s
appearance in these proceedings on June 22, 2012
constitutes adequate receipt of Service of Process
since the purpose of the summons[es] have been
accomplished i.e. the appearance of the defendant in
the process.5
The Court finds this objection should also be overruled.
A defendant’s awareness that he has been sued is not legally
persuasive regarding whether the party has been properly served.
Friedman v. Estate of Presser, 929 F.2d 1151, 1156 (6th Cir. 1991).
Plaintiff erroneously states that the Defendants appeared at a Rule
16(b) pretrial conference before the Magistrate Judge where they
forfeited the right to contest service. She further objects that
counsel refused her attempts to re-serve the individual Defendants
at that time.
5 DE #85.
8
The proceeding conducted by the Magistrate Judge on June 20,
2013 was a Motions Hearing/Rule 26(b) Scheduling Conference. (DE #59
and DE #67).
Defendants’ appearance through counsel, at said Rule
26(b) Scheduling Conference/Motion Hearing is not deemed a general
appearance when counsel has previously asserted a defense to the
action for lack of service. Friedman, 929 F.2d at n.7 (noting that
an appearance by counsel, filed after properly raising lack of proper
service in the first responsive pleading, did not waive the defense).
King v. Taylor, 694 F.3d 650, 661(6th Cir. 2012); Ohio ex rel. Skaggs
v. Brunner, 629 F.3d 527, 532 (6th Cir. 2010); Datskow v. Teledyne,
Inc., Continental Products, Div., 899 F.2d 1301, 1303 (2nd. Cir.
1990)(a defendant forfeited its defense of improper service by
including the defense in tis answer and then waiting four months to
raise the defense in a motion, before which time it attended a
scheduling conference where the defense was never mentioned).
In this case, Defendants initially included the defense of
improper service in their Response to Plaintiff’s Application for
Default, DE #31, filed on June 22, 2012.
Further the issue of
improper service was raised in the Corporate Defendants’ Motion to
Dismiss filed on February 28, 2012. (DE #15). Defendants raised the
issue of service again in their Ore Tenus Motion to Dismiss made
during the actual Rule 26(b) scheduling conference.
(DE #67). It
was again raised in the Motion to Dismiss filed by Navarone Garibaldi
9
filed on July 10, 2013. (DE #99). Further, Defendants also noted their
intent to rely on dismissal of all claims against them for Plaintiff’s
lack of proper service in their response to Plaintiff’s Rule 52
Motions for Default Judgments. (DE #50). Accordingly, Defendants
have not forfeited the defense of lack of service by either delaying
to assert it or by extensively participating in this matter.
The Magistrate Judge correctly points out that Plaintiff was
well aware of the defective service issues in her case.
The Court
had given Plaintiff an opportunity to correct these issues or show
cause for her failure to comply with Fed. R. Civ. P. 4(m).6 As such,
Plaintiff had a duty to correct the defective service as directed
by the Court on September 19, 2012, in order to avoid dismissal for
failure to prosecute. Instead, Plaintiff chose to assert a mail theft
allegation rather than simply resending the complaint and summons
with an Acknowledgement of Receipt of Summons as required by
California Law or a Certified Return Receipt as required by Tennessee
law.
Next, Plaintiff objects that during the Motion Hearing and
Scheduling Conference before the Magistrate Judge, Defendants
refused,
through
counsel,
to
accept
“re-service”
of
process.
Included in her objections, Plaintiff argues that counsel’s conduct
is a basis for sanctions. Fed. R. Civ. P. Rule 11(c)(2) provides:
6 DE #26, DE #33, and DE #44.
10
(2) Motion for Sanctions. A motion for sanctions
must be made separately from any other motion and must
describe the specific conduct that allegedly
violates Rule 11(b). The motion must be served under
Rule 5, but it must not be filed or be presented to
the court if the challenged paper, claim, defense,
contention, or denial is withdrawn or appropriately
corrected within 21 days after service or within
another time the court sets. If warranted, the court
may award to the prevailing party the reasonable
expenses, including attorney’s fees incurred for the
motion.
In other words, Plaintiff’s request for sanctions is improperly
presented to the Court. The requirement that a motion for Rule 11
sanctions be made separately from other motions or requests prohibits
movant from burying the Rule 11 motion within her objections to the
Magistrate’s Report and Recommendation.
Ridder v. City of
Springfield, 109 F.3d 288, 294 (6th Cir. 1997).
Moreso, the test
for imposition of Rule 11 sanctions is whether the attorney’s conduct
was reasonable under the circumstances.
Mann v. G & G Mfg., Inc.
900 F.2d 953, 958 (6th Cir. 1990), cert. denied, 498 U.S. 959, 111
S.Ct. 387, 388 112 L.Ed.2d 398 (1990).
In this instance, the Court
finds there was nothing unreasonable about counsel’s alleged refusal
to accept service of process during the Motion Hearing when the
parties had affirmatively asserted lack of proper service as the
basis for the dismissal of all claims against them. Finally, the Court
must note that the minutes from the hearing held before the Magistrate
Judge indicate that counsel for Defendant Garibaldi would accept
11
service, thereby contradicting Plaintiff’s claims in this motion.
(DE #67).
B.
Report and Recommendation On Navarone Garibaldi’s Motion
to Dismiss Pursuant to Rule 12(b)(6)-(DE #112)
Garibaldi asserts that the same issues raised against him were
fully briefed and addressed in the Magistrate Judge’s Report and
Recommendation and the Court’s Order adopting said report that
dismissed the corporate Defendants.
Therefore, Garibaldi has filed
a motion to dismiss Counts II, III, IV and V against him for those
reasons. (DE #99). Accordingly, the Magistrate Judge has recommended
that the Court also grant Garibaldi’s Motion to Dismiss for failure
to state a claim against him pursuant to Fed. R. Civ. 12(b)(6).(DE
#112).7
The Magistrate Judge previously recommended granting CPX and
EPE’s motion to dismiss for failure to state a claim because: 1) the
Defendants were absolutely immune from claims of libel, intentional
infliction of emotional distress and civil conspiracy based on the
“litigation privilege” provided by Ca. Civ. Code § 47, and 2) the
August 16, 2011 publication was never published to a third party
thereby failing to establish a defamation claim.8
7 Plaintiff did not file a response to the Defendant Garibaldi’s Motion to Dismiss.
8 DE #80. The Magistrate Judge added that even had she applied Tennessee
substantive defamation law, the result would have still been the same.
12
Plaintiff filed objections to this Report and Recommendation
on October 18, 2013. (DE #114 and DE #115).9
two
relevant
objections
to
the
The Court found only
Magistrate’s
Report
and
Recommendation to dismiss Garibaldi that: 1) Garibaldi may be held
vicariously liable because he does not have the defense of non-agency
or attorney-client privilege, and 2) Garibaldi participated in the
conspiracy to publish the letter forming the basis for this action.
Although Plaintiff reiterates facts found in her complaint and within
her other motions, she cites no relevant case law or offers any new
information regarding this defendant, Navarone Garibaldi, and his
alleged involvement in this purported conspiracy.
Also, the Court
finds no agency relationship between Presley’s son and the other
alleged corporate defendants that have already been dismissed.
As previously addressed, the August 16, 2011 letter at issue
was not published by Garibaldi or any of the other named Defendants.
Plaintiff fails to allege any reasonably plausible facts in her
complaint or in her objections to the Report and Recommendation that
Garibaldi
committed
libel,
defamation
or
any
other
acts
of
intimidation and harassment towards Plaintiff or her family. The
objections
are
far-reaching
merely
a
conclusions
frustrated
that
the
litany
Court
of
complaints
finds
and
frivolous,
9 DE #114 and DE #115 are identical documents. The Objections begin with a
discussion of the Magistrate’s prior Report and Recommendation, DE #75, regarding
Priscilla Presley that are irrelevant to the recommendation regarding Garibaldi.
Therefore, the Court finds no need to address those objections for the second time.
13
inconsequential and irrelevant to the issue of Garibaldi’s dismissal
from this case. In summary, the Court overrules all of Plaintiff’s
objections to the Magistrate Judge’s Report and Recommendation to
dismiss Garibaldi and Grants Garibaldi’s Motion to Dismiss.
C. Plaintiff’s Pro Se Motions for Recusal–(DE #116 and
DE #120)
Plaintiff has filed motions seeking the disqualification of
this Court as presiding Judge and the appellate court reviewing the
Magistrate’s determinations as well as disqualification of the
Magistrate Judge based on impartiality and bias. (DE #116 and DE
#120).
Plaintiff challenges the ability of this Court to conduct
a de novo review of the Magistrate Judge’s proposed findings and
recommendations. On February 28, 2014, Plaintiff filed a second
motion for this Court’s recusal, DE #120, where she contests the
Court’s rulings in Plaintiff’s other matter, Case No. 13-cv-2131,
as
severely
prejudicial
and
biased.
(DE
#120-1).
Plaintiff
challenges both Judges because the Magistrate Judge deferred to the
District Court’s adoption of her prior Report and Recommendation
regarding the corporate Defendants. The Defendants filed their
response to Plaintiff’s Motion for Recusal on October 24, 2013.
(DE
#117).
Regarding Plaintiff’s request for Magistrate Judge Vescovo’s
recusal, Plaintiff asserts that, “in the mind of a reasonable and
impartial person would give rise to the suspicion of what appears
to be bias and a prejudicial attitude towards Plaintiff.” [sic]
Oddly, Plaintiff continues that the Magistrate Judge treated her as
14
a lawyer instead of a pro se Plaintiff which has worked to her
disadvantage. As a trained lawyer from another country, Plaintiff
claims she was at greater risk than an untrained pro se litigant who
“knows that he does not know any law.” Finally, Plaintiff contends
the Magistrate Judge interjected her own opinion in place of a jury
and
failed
to
construe
the
complaint
most
favorably
to
the
Plaintiff.10
Twenty-eight U.S.C. ' 455 provides, in pertinent part:
§455. Disqualification of justice, judge, or
magistrate judge
(a) Any justice, judge, or magistrate judge of the
United States shall disqualify himself in any
proceeding
in
which
his
impartiality
might
reasonably be questioned.
(b) He shall also disqualify
following circumstances:
(1)
himself
in
the
Where he has a personal bias or prejudice
concerning a party, or personal knowledge
of disputed evidentiary facts concerning
the proceeding.
28 U.S.C. ' 455(a), (b)(1).
Twenty-eight U.S.C. ' 144 states:
§ 144. Bias or prejudice of a judge
Whenever a party to any proceeding in a district makes
and files a timely and sufficient affidavit that the
judge before whom the matter is pending has a personal
bias and prejudice either against him or in favor of
10 Plaintiff previously alluded to her discontent with some of the Magistrate
Judge’s rulings in her objections filed on October 18, 2013. However, none of these
objections were indicative of the Magistrate Judge’s alleged impartiality. DE
#114. Also, in her objections to the Magistrate Judge’s Report and Recommendation
regarding Garibaldi, Plaintiff objected to the Magistrate’s repeated references
to her Swedish heritage by noting she was born in Memphis, Tennessee. DE #114.
15
any adverse party, such judge shall proceed no
further therein, but another judge shall be assigned
to hear such proceeding.
The affidavit shall state the facts and reasons for
the belief that bias or prejudice exists, and shall
be filed not less than ten days before the beginning
of the term at which the proceeding is to be heard
or good cause shall be shown for failure to file it
within such time. A party may file only one such
affidavit in any case. It shall be accompanied by a
certificate of counsel of record stating that it is
made in good faith.
28 U.S.C. ' 144.
Recusal motions, whether brought under Section 455 or Section
144, are matters committed to the sound discretion of the assigned
district judge. In re M. Ibrahim Khan, P.S.C. v. Yusufji, 751 F.2d
162, 165 (6th Cir. 1984); Kelley v. Metropolitan County Bd. of Ed.,
479 F.2d 810, 811 (6th Cir. 1973).
The Sixth Circuit has explicitly
decided that disqualification under both ' 455(a) and ' 144 must be
predicated on extrajudicial conduct rather than judicial conduct.
Green
v.
Nevers,
111
F.3d
1295,
1303-04
(6th
Cir.
1997)
Allegations of bias Amust be a personal bias as distinguished
from a judicial one, arising out of the judge=s background and
association and not from the judge=s view of the law.@ Easley v. Univ.
of Michigan Bd. of Regents, 853 F.2d 1351, 1355-1356 (6th Cir. 1988).
The Sixth Circuit clarified that in order for personal bias to be
disqualifying, the alleged bias of the judge must stem from an
extrajudicial source and result in an opinion on the merits on some
basis other than what the judge learned from his participation in
the case.@
Parker v. Sill, 989 F.2d 500 at *2 (6th Cir. 1993); and
United States v. Hatchett, 978 F.2d 1259 at *4 (6th Cir. 1992).
16
“Personal bias is prejudice that emanates from some source other than
participation in the proceedings or prior contact with related
cases.@ Id. at *3.
Disqualification is required Aonly if a reasonable person with
knowledge
of
all
the
facts
would
conclude
that
the
judge's
impartiality might reasonably be questioned.@ Wheeler v. Southland
Corp., 875 F.2d 1246, 1251 (6th Cir. 1989). That standard is an
objective one, and Ais not based on the subjective view of a party.@
Id.
Ultimately, a judge's decisions are not biased merely because
the judge has a particular point of view on the law. Parchman v. U.S.
Dep=t. of Agriculture, 852 F.2d 858, 866 (6th Cir. 1988).
It is indisputable that Plaintiff's allegations of bias and
prejudice only pertain to the Magistrate Judge’s judicial rulings
in the case.
There are no facts, affidavits, or evidence in the
record that establish objective personal bias arising from any other
source other than the Magistrate Judge=s participation in this case.
The Court draws the same conclusion regarding Plaintiff’s
requests for this Court’s recusal. There have been no allegations
of personal bias against this Court other than the fact the Court
adopted the Magistrate Judge’s former Report and Recommendation in
her first Motion for Recusal.
In the last Motion for Recusal filed
on February 28, 2014, Plaintiff alleges that the Court’s Order, DE
#84, that dismissed her related case violated her Fourth, Seventh
and Fourteenth Amendments of the United States Constitution.11 This
11 DE #121-1, p. 2; See also DE #84 filed on February 24, 2014 in Lisa Marie Presley
v. JP/Politikens HUS, Case No. 13-cv-2191-JTF-cgc.
17
motion also fails to allege any bias or prejudice against Plaintiff
other than the Court’s participation as Presiding Judge in both of
Plaintiff’s cases filed in this district court.
In her second Motion for Recusal, Plaintiff characterizes the
Court’s ruling regarding her domicile in the related case erroneous;
states the Court incorrectly cited the contradictions in both
complaints
regarding her citizenship; opines that the Court’s
rulings were inaccurate, biased and prejudicial, and finally argues
the Court’s final decision that her claims in that matter had no basis
in fact was unfavorable and improper. She requests that all rulings
by this Court in that matter be vacated. Again, an adverse ruling
by a Court, does not render the Court biased and prejudicial as
asserted by Plaintiff.
Any challenges Plaintiff may have to the
rulings in that case by this Court will ultimately be addressed by
the Sixth Circuit as needed during the appellate process. 12 The
Supreme Court has ruled that opinions held by judges as a result of
what
they
learned
in
earlier
“prejudice” requiring recusal.
proceedings
are
not
“bias”
or
Liteky v. U.S., 510 U.S. 540, 551,
114 S.Ct. 1147, 1155, 127 L.Ed.2d 474 (1994).
Finally, Plaintiff’s Motions for Recusal were not filed in
accordance with the procedural directives that require a timely
affidavit within ten (10) days of the scheduled proceedings.
Plaintiff has no basis for seeking disqualification of the Magistrate
Judge and the District Judge assigned to this case particularly at
this late stage in the case and prior to rulings on the Defendant’s
12 Plaintiff filed her Notice of Appeal in that case on February 27, 2014, DE #86.
18
last motion to dismiss.
Therefore, Plaintiff’s Motions for Recusal,
DE #77 and DE #120, are both DENIED.
D. Plaintiff’s Motion to Appeal, Amended Motion of Appeal of
Denial of Default against Priscilla Presley and Motion for
Leave to File an Appeal - (DE #82, DE #100, DE #101 and DE
#119)
The district court has appellate jurisdiction over any decision
the Magistrate Judge issues pursuant to such a referral. 28 U.S.C.
' 636(b); Fed. R. Civ. P. 72. The standard of review applied by the
district court depends on the nature of the matter the magistrate
judge considers.
Plaintiff has filed Motions to Appeal two rulings
by the Magistrate Judge on non-dispositive matters: 1) the Denial
of Plaintiff’s Motion for Leave to Amend Factfinding and 2) Pro Se
Notice of Appeal of Denial of Order to Amend/Correct Complaint.
(DE
#82 and DE #101).
This Court reviews non-dispositive rulings and recommendations
by the Magistrate Judge under the clearly erroneous or contrary to
law standard. Fed. R. Civ. P. 72(a); United States v. Raddatz, 447
U.S. 667, 673 (1980); United States v. Curtis, 237 F.3d 598 (6th Cir.
2000).
The Court has reviewed these non-dispositive motions, the
Magistrate Judge’s determinations for clear error, as well as,
Plaintiff=s objections in her Notices of Appeal.
Plaintiff has
failed to demonstrate that Magistrate Judge Vescovo=s rulings are
clearly erroneous or contrary to law.
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The Court determines that
Judge Vescovo=s rulings are based on well-established procedural
rules and case law governing discovery at this stage of the case.
Lastly, Plaintiff asks for thirty (30) days after the Court’s
ruling on her objections to the Reports and Recommendations and prior
Orders of the Court in which to file her appeal. (DE #119).
Now that
the Court has ruled on all pending motions in this case and determined
the case should be dismissed, Plaintiff may file a Notice of Appeal
to the United States Appellate Court if she so choses in accordance
with Fed. R. App. P. 3.
As such, Plaintiff’s Pro Se Motion for Leave
of Court is DENIED.
III. CONCLUSION
The Court ADOPTS the Magistrate’s Reports and Recommendations,
DE#75 and DE #112, to Grant Defendant Priscilla Presley’s Ore Tenus
Motion to Dismiss and to Grant Defendant Navarone Garibaldi’s Motion
to Dismiss, DE #99, for the reasons set out above.
Also, the Court
DENIES Plaintiff’s Motion for Sanctions included in her objections
to the Magistrate’s Report, DE #85, DENIES Plaintiff’s Appeals of
the Magistrate’s Denial of Motion to Amend Factfinding, DE #82, and
Appeal of her Denial of Motion for Leave to Amend Complaint, DE #101,
DENIES Plaintiff’s Motions for Recusal, DE #116 and DE #120, and
finally DENIES Plaintiff’s Pro Se Motion for Leave of Court. (DE
#119).
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The Court having ruled on all pending motions and finding the
claims against all Defendants should be dismissed and the appeals
to this Court without merit, orders this case closed.
IT IS SO ORDERED on this the 6th day of March 2014.
s/John T. Fowlkes, Jr.
JOHN T. FOWLKES, JR.
UNITED STATES DISTRICT JUDGE
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