Drake v. Costume Armour Inc and Christo Vac et al

Filing 59

MEMORANDUM OPINION AND ORDER denying 52 MOTION for Reconsideration of 49 Final Judgment AND MOTION for New Trial, denying 53 MOTION for Recusal, denying 54 MOTION for Reconsideration of 49 Final Judgment (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

E.V. DRAKE,

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Plaintiff,
v.
COSTUME ARMOUR, INC.,
CHRISTO VAC, and
DRAKE LOEB PLLC,
Defendants.

October 11, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. H-16-3607

MEMORANDUM OPINION AND ORDER

Pending before the court are Plaintiff's Motion to Reconsider,
Motion to Set Aside Court's Final Judgment of Dismissal and Motion
for New Trial (Docket Entry No. 52); Plaintiff's Motion to Recuse
Judges Sims

[sic]

and Johnson ("Motion to Recuse")

(Docket Entry

No. 53); and Plaintiff's Amended Motion to Reconsider, Motion to
Set Aside Court's Dismissal, Motion for New Trial, and Motion to
Amend (Docket Entry No. 54).
I.

Case Background

Plaintiff, E.V. Drake, filed this action against Defendants,
Costume Armour,

Inc., Christo Vac, and Drake Loeb PLLC, alleging

civil rights violations, warranty claims, mail and wire fraud, and
various state law causes of action. 1

1

Defendants subsequently filed

See Plaintiff's Original Complaint, Docket Entry No. 1.

motions to dismiss. 2

On September 6,

2017,

the court issued an

opinion recommending dismissal of Plaintiff's federal question and
state law claims. 3

Plaintiff filed a general objection to the

Memorandum and Recommendation and alternatively asked that if the
court was inclined to agree with the recommendation,

it "sign an

expedited final order without haste" so that he could appeal the
decision to the Fifth Circuit. 4

On September 21, 2017, the court

adopted the Memorandum and Recommendation and dismissed the case
for lack of subject matter jurisdiction. 5
In his pending motions,
(1)

Plaintiff requests that the court:

reverse its decision dismissing Plaintiff's claims;

Plaintiff leave to amend his Complaint;
trial;

(4)

(2) give

(3) give Plaintiff a new

grant a discovery period before ruling on the motion for

reconsideration;

and

(5)

recuse itself to allow the case to be

reassigned to another judge.

2

See Defendants, Costume Armour, Inc. and Christo Vac's Motion
to Dismiss Under Federal Rule of Civil Procedure 12(b) (6), Docket
Entry No. 4; Defendant Drake Loeb PLLC's Motion to Dismiss
Plaintiff's Original Complaint for Lack of Personal Jurisdiction
and Failure to State a Claim, Docket Entry No. 5.
3

See Memorandum
pp. 21-22.

and

Recommendation,

Docket

Entry

No.

45,

4

See Plaintiff's Response to Magistrate's Report, Docket Entry
No. 47, p. 1.
5

See Order Adopting Magistrate Judge's Memorandum and
Recommendation ("Order Adopting"), Docket Entry No. 48, and Final
Judgment, Docket Entry No. 49.
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II.
A.

Standards of Review

Recusal

Section 455 of Title 28 directs a judge to disqualify himself
or herself

"in any proceeding in which his

reasonably be questioned."

28 U.S.C.

§

impartiality might

455(a)

circumstances require that the judge recuse,

Certain specific
including where the

judge "has a personal bias or prejudice concerning a party."
U.S.C.

§

455(b) (1).

28

The standard for determining whether a judge

should recuse based on Section 455 is "whether a reasonable person,
with full knowledge of all the circumstances, would harbor doubts
about the judge's impartiality."
549,

571

(5th Cir.

1999)

Matassarin v.

Lynch,

174 F.3d

(quoting Vieux Carre Property Owners,

Residents, and Associates, Inc. v. Brown, 948 F.2d 1436, 1448 (5th
Cir. 1991)).
Section 144 of Title 28 states in relevant part:
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.
Judicial

rulings,

courtroom

administration

efforts,

and

ordinary admonishments to counsel and to witnesses are not valid
bases for motions to recuse for personal bias or prejudice.
Liteky v.

United States,

510 U.S.

540,

556

ordinary efforts at courtroom administration -

(1994)

See

("A judge's

even a stern and

short-tempered judge's ordinary efforts at courtroom administration
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remain immune [from establishing a bias]."); see also Raborn v.
Inpatient Management Partners Inc., 352 F. App'x 881, 884 (5th Cir.
2009)

(unpublished)

that

"'opinions

introduced

or

(quoting Liteky, 510 U.S. at 555, as stating

formed

events

proceedings

by

the

occurring

do

not

judge
in

on

the

constitute

the

course
a

basis
of

basis

of

the

for

a

facts

current
bias

or

partiality motion unless they display a deep-seated favoritism or
antagonism

that

would

make

fair

judgment

impossible'") .

The

disqualification decision is within the "sound discretion" of the
judge.
B.

In re Deepwater Horizon, 824 F.3d 571, 580 (5th Cir. 2016).

Reconsideration

"[T]he Federal Rules of Civil Procedure do not recognize a
general

motion

for

reconsideration."

See

St.

Paul

Insurance Co. v. Fair Grounds Corp., 123 F.3d 336, 339

Mercury
(5th Cir.

1997); see also Shepherd v. International Paper Co., 372 F.3d 326,
328 n.1 (5th Cir. 2004).

If a motion for reconsideration is filed

within

judgment

ten days

of

the

or order

of

which

the

party

complains, it is considered to be a Rule 59(e) motion; otherwise,
it is treated as a Rule 60(b) motion.

See Shepherd, 372 F.3d at

328 n.1 (5th Cir. 1998).
"A Rule 59(e) motion 'calls into question the correctness of
a judgment.'"

Templet v. HydroChem Inc., 367 F.3d 473, 478

(5th

Cir. 2004), cert. denied, 543 U.S. 976, 125 S. Ct. 411, 160 L.Ed.2d
352 (2004)

(quoting In re Transtexas Gas Corp., 303 F.3d 571, 581

(5th Cir. 2002)).

The Fifth Circuit has held that "such a motion
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is not the proper vehicle for rehashing evidence, legal theories,
or arguments that could have been offered or raised before the
entry of judgment."

Id. at 478-79 (citing Simon v. United States,

891 F.2d 1154, 1159 (5th Cir. 1990)).
the judgment under Rule 59 (e)

A motion to alter or amend

"'serve [s]

the narrow purpose of

allowing a party to correct manifest errors of law or fact or to
present newly discovered evidence.'"

Id. at 479.

Relief on this

basis is also appropriate when there has been an intervening change
in the controlling law.
Inc.,

342 F.3d 563,

See Schiller v. Physicians Resource Group

567

(5th Cir.

2003).

The Fifth Circuit has

warned that altering, amending, or reconsidering a judgment under
Rule

59 (e)

sparingly.

is

an

extraordinary

remedy

that

courts

should use

Templet, 367 F.3d at 479.
III.

Motion for Recusal

In his motion Plaintiff asks that his case be reassigned to
another judge because "Judge

[Lake]

Judge

assigned

Johnson

to

all

cases

had a
to

scheme of appointing
him"

and

that

Judge

Johnson's memorandum and recommendation was "heavily biased against
him" and she was "not familiar with the facts of the above cause of
action." 6

Plaintiff additionally states that Judge Johnson told

Plaintiff, "You don't want to get on my bad side." 7

6

See Motion to Recuse,
~~ 5 and 4.
7

Docket Entry No.

See id. at 2.
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53, p.

1

~

3; p.

2

There

is

indicating

nothing

that

Plaintiff.

The

Judge

in

the

Johnson

Memorandum

Memorandum
had

and

a

and

personal

Recommendation

Recommendation
animus
was

against

thoroughly

written and explains the facts as alleged by Plaintiff and the law
supporting dismissal of his claims.

Plaintiff did not raise any

specific objections to the Memorandum and Recommendation, and the
court agreed with its findings and entered the Order Adopting.
As to Judge Johnson's statement that Plaintiff would get on
her bad side, Plaintiff takes this statement, made at a scheduling
conference, out of context.
issues

and granting him a

anticipated surgery,

After discussing Plaintiff's medical
lengthy continuance to recover from

Defendants'

counsel brought to the court's

attention his concern that Plaintiff had given him a bad address
for

service of pleadings. 8

Plaintiff

agreed that

the address

In response,

provided was no longer a good address.

the court

stated that Plaintiff must keep the court and opposing counsel
informed of a correct address and cautioned Plaintiff would get on
her "bad side" if the court was unable to contact Plaintiff. 9

This

merely constitutes an effort at courtroom administration by Judge
Johnson.
case

nor

Plaintiff.

This was neither a comment on the merits of Plaintiff's
a

comment

establishing

a

deep-seated

bias

See In re Deepwater Horizon, 824 F.3d at 579-80.

8

See Transcript of March 23,
Docket Entry No. 57, pp. 11-12.

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2017,

against
After

Scheduling Conference,

reviewing

the

totality

of

Plaintiff's

complaints

magistrate judge and the undersigned judge,

about

the

the court concludes

that Plaintiff's Motion to Recuse Judges Sims

[sic]

and Johnson

(Docket Entry No. 53) should be and is hereby DENIED.

IV.

Motions to Reconsider, Set Aside Court's
Dismissal, for a New Trial, and to Amend

Plaintiff additionally requests that the dismissal of this
action be reconsidered.
bias against him,

Other than focusing on the court's alleged

Plaintiff provides no basis in law or fact to

reconsider the court's dismissal.

Therefore, Plaintiff's Motion to

Reconsider, Motion to Set Aside Court's Final Judgment of Dismissal
and Motion for New Trial

(Docket Entry No.

52)

and Plaintiff's

Amended Motion to Reconsider Motion to Set Aside Court's Dismissal,
Motion for New Trial, and Motion to Amend (Docket Entry No. 54) are
DENIED.

The Clerk shall send copies of this Memorandum Opinion and
Order to the respective parties.
SIGNED at Houston, Texas, on this 11th day of October, 2017.

7 S i M LAKE

UNITED STATES DISTRICT JUDGE

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