Haskett v. Orange Energy Consultants, LLP et al

Filing 18

MEMORANDUM AND OPINION entered DENYING Pltfs. motion to transfer venue (Docket Entry No. 13). (Signed by Judge Lee H Rosenthal) Parties notified.(leddins, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
PHILLIP DAVID HASKETT,
Plaintiff,

VS.
ORANGE ENERGY CORPORATION,
Defendant.

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CIVIL ACTION NO. G-14-0348

MEMORANDUM AND OPINION
The plaintiff, Phillip David Haskett, has filed a motion to transfer this case from the
Houston division to a magistrate judge in the Galveston Division. (Docket Entry No. 13).
Haskett, who has filed a number of cases raising similar allegations against different defendants,
argues that it is inconvenient for him to travel from his home in San Leon to Houston for
hearings, that Houston is dangerous to visit, and that this court is biased against him. The
defendants oppose this motion. (Docket Entry No. 17).
Haskett frames his motion as one to transfer venue from the Houston Division to the
Galveston Division under 28 U.S.C. § 1404(a).

Section 1404(a) states that “[f]or the

convenience of parties and witnesses, in the interest of justice, a district court may transfer any
civil action to any other district or division where it might have been brought.” 28 U.S.C.
§ 1404(a). This case remains assigned to the Galveston Division of the Southern District of
Texas, where Haskett originally filed it. Because there is currently no district judge assigned to
the Galveston Division, this case, like all other cases filed in Galveston, was assigned to a judge
who sits in the Houston Division, but the case remains pending in the Galveston Division.

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Haskett argues that a magistrate judge in Galveston could preside over this case, and has
consented to the magistrate judge’s jurisdiction. Orange Energy has not consented to proceed
before a magistrate judge. A case cannot be transferred to a magistrate judge for resolution
unless all parties agree. See Caprera v. Jacobs, 790 F.2d 442, 444‒45 (5th Cir. 1986). The court
cannot grant Haskett the relief he seeks.1
Haskett also argues that the case should be transferred to another judge based on the bias
of the presiding judge. The basis for this motion is the fact that this judge has dismissed two
similar complaints Haskett has filed against other defendants.
A party may move to recuse a judge under either 28 U.S.C. § 144 or 28 U.S.C. § 455.
Section 144 relates to charges of actual bias or prejudice, while § 455(a) covers an appearance of
bias or prejudice. See Liteky v. United States, 510 U.S. 540, 547–48 (1994); Matassarin v.
Lynch, 174 F.3d 549, 570 (5th Cir.1999); Henderson v. Dep't of Pub. Safety & Corr., 901 F.2d
1288, 1296 (5th Cir.1990). Section 144 provides:
Whenever a party to any proceeding in a district court makes and
files a timely and sufficient affidavit that the judge before whom
the matter is pending has a personal bias or prejudice either against
him or in favor of 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 the 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.

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Even if the case had been transferred to the Houston Division, venue would also be proper here. See
United States v. Real Prop. Known As 200 Acres of Land Near FM 2686 Rio Grande City, Tex., 773 F.3d
654, 658 (5th Cir. 2014) (“If venue is proper in the Houston Division of the Southern District of Texas it
is ipso facto proper in the Galveston Division.”). The only factor Haskett has identified that would weigh
in favor of trying the case in Galveston is his own convenience.

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28 U.S.C. § 144. The threshold requirement under § 144 is that a party file an affidavit
demonstrating personal bias or prejudice against that party by the district judge. Parrish v. Bd.
of Comm’rs of the Ala. State Bar, 524 F.2d 98 (5th Cir. 1975) (en banc). “Once the motion is
filed under § 144, the judge must pass on the legal sufficiency of the affidavit, but may not pass
on the truth of the matters alleged.” Davis v. Bd. of Sch. Comm’rs of Mobile Cnty., 517 F.2d
1044, 1051 (5th Cir. 1975) (citations omitted); see also Berger v. United States, 255 U.S. 22
(1921). Haskett has not satisfied the requirement of filing an affidavit demonstrating bias or
prejudice.
Section 455 requires a judge to disqualify when “his [or her] impartiality might
reasonably be questioned.” 28 U.S.C. § 455. The appearance of impartiality controls the § 455
analysis, not whether a judge subjectively believes herself to harbor bias or prejudice. See
Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (1988). An objective standard for
evaluating bias applies. See Andrade v. Chojnacki, 338 F.3d 448, 454–55 (5th Cir. 2003).
(citing Vieux Carre Prop. Owners, Residents & Assocs., Inc. v. Brown, 948 F.2d 1436, 1448 (5th
Cir. 1991)). Recusal is required under § 455(a) only if “a reasonable and objective person,
knowing all of the facts, would harbor doubts concerning the judge’s impartiality.” Patterson v.
Mobil Oil Corp., 335 F.3d 476, 484 (5th Cir. 2003), cert. denied, 540 U.S. 1108 (2004). A
court’s “review should entail a careful consideration of context, that is, the entire course of
judicial proceedings, rather than isolated incidents,” id. (citing Sao Paulo State of Federative
Rep. of Brazil v. Am. Tobacco Co., 535 U.S. 229 (2002)), which includes the origin of a judge’s
alleged bias. Id. (citing Liteky v. United States, 510 U.S. 540 (1994)). “As articulated by the
Supreme Court, this rule more or less divides events occurring or opinions expressed in the

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course of judicial proceedings from those that take place outside of the litigation context and
holds that the former rarely require recusal.” Id.
The only basis for Haskett’s recusal motion is rulings in similar cases he has filed against
companies who, like the defendant in the present case, did not hire him. Haskett claims that he
was “subject[ed] to a merciless ‘pencil-whipping’ in the two cases previously assigned to [this
court],” and that this court has permitted the defendants in those cases to “engage in an extensive
campaign of ad hominem personal attacks having no relevance to the merits of the cases
whatsoever, but which appear to have palpably prejudiced Judge Rosenthal against Plaintiff.”
(Docket Entry No. 13 at p. 5). Haskett also characterizes the fact that three of his cases have
been assigned to this court as “Enemy Action.” (Id.).
“[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality
motion.” Liteky, 114 S. Ct. at 1157. Judicial rulings are all Haskett cites. That is insufficient for
the relief he seeks. When, as here, no extrajudicial source of bias is involved, judicial rulings
may serve as the basis for disqualification only when they “display a deep-seated favoritism or
antagonism that would make fair judgment impossible,” which the Supreme Court has described
as the “rarest of circumstances.” Liteky, 114 S. Ct. at 1157. There is no such evidence here. An
objective third party aware of all the facts could not reasonably question this judge’s
impartiality. Haskett’s motion to transfer or reassign this case to another judge is denied.
SIGNED on April 20, 2015, at Houston, Texas.

Lee H. Rosenthal
United States District Judge

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