Drake v. Costume Armour Inc and Christo Vac et al
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
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
COSTUME ARMOUR, INC.,
CHRISTO VAC, and
DRAKE LOEB PLLC,
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
and Johnson ("Motion to Recuse")
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).
Plaintiff, E.V. Drake, filed this action against Defendants,
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
Defendants subsequently filed
See Plaintiff's Original Complaint, Docket Entry No. 1.
motions to dismiss. 2
On September 6,
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,
Plaintiff requests that the court:
reverse its decision dismissing Plaintiff's claims;
Plaintiff leave to amend his Complaint;
(3) give Plaintiff a new
grant a discovery period before ruling on the motion for
recuse itself to allow the case to be
reassigned to another judge.
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.
See Plaintiff's Response to Magistrate's Report, Docket Entry
No. 47, p. 1.
See Order Adopting Magistrate Judge's Memorandum and
Recommendation ("Order Adopting"), Docket Entry No. 48, and Final
Judgment, Docket Entry No. 49.
Standards of Review
Section 455 of Title 28 directs a judge to disqualify himself
"in any proceeding in which his
reasonably be questioned."
circumstances require that the judge recuse,
including where the
judge "has a personal bias or prejudice concerning a party."
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."
(quoting Vieux Carre Property Owners,
Residents, and Associates, Inc. v. Brown, 948 F.2d 1436, 1448 (5th
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
ordinary admonishments to counsel and to witnesses are not valid
bases for motions to recuse for personal bias or prejudice.
ordinary efforts at courtroom administration -
even a stern and
short-tempered judge's ordinary efforts at courtroom administration
remain immune [from establishing a bias]."); see also Raborn v.
Inpatient Management Partners Inc., 352 F. App'x 881, 884 (5th Cir.
(quoting Liteky, 510 U.S. at 555, as stating
partiality motion unless they display a deep-seated favoritism or
disqualification decision is within the "sound discretion" of the
In re Deepwater Horizon, 824 F.3d 571, 580 (5th Cir. 2016).
"[T]he Federal Rules of Civil Procedure do not recognize a
Insurance Co. v. Fair Grounds Corp., 123 F.3d 336, 339
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
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
Templet v. HydroChem Inc., 367 F.3d 473, 478
Cir. 2004), cert. denied, 543 U.S. 976, 125 S. Ct. 411, 160 L.Ed.2d
(quoting In re Transtexas Gas Corp., 303 F.3d 571, 581
(5th Cir. 2002)).
The Fifth Circuit has held that "such a motion
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
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.
342 F.3d 563,
See Schiller v. Physicians Resource Group
The Fifth Circuit has
warned that altering, amending, or reconsidering a judgment under
Templet, 367 F.3d at 479.
Motion for Recusal
In his motion Plaintiff asks that his case be reassigned to
another judge because "Judge
scheme of appointing
Johnson's memorandum and recommendation was "heavily biased against
him" and she was "not familiar with the facts of the above cause of
Plaintiff additionally states that Judge Johnson told
Plaintiff, "You don't want to get on my bad side." 7
See Motion to Recuse,
~~ 5 and 4.
Docket Entry No.
See id. at 2.
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.
and granting him a
After discussing Plaintiff's medical
lengthy continuance to recover from
counsel brought to the court's
attention his concern that Plaintiff had given him a bad address
service of pleadings. 8
provided was no longer a good address.
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
merely constitutes an effort at courtroom administration by Judge
This was neither a comment on the merits of Plaintiff's
See In re Deepwater Horizon, 824 F.3d at 579-80.
See Transcript of March 23,
Docket Entry No. 57, pp. 11-12.
magistrate judge and the undersigned judge,
the court concludes
that Plaintiff's Motion to Recuse Judges Sims
(Docket Entry No. 53) should be and is hereby DENIED.
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.
Amended Motion to Reconsider Motion to Set Aside Court's Dismissal,
Motion for New Trial, and Motion to Amend (Docket Entry No. 54) are
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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