Rollins v. Greenberg Traurig, LLP et al

Filing 83

MEMORANDUM AND ORDER denying 72 MOTION for Judgment MOTION to Void or Nullify Judge Hanen's Orders (DE 16 and 37) for Want of En Personam Jurisdiction. (Signed by Judge Charles Eskridge) Parties notified.(jengonzalez, 4)

Case 4:19-cv-01514 Document 83 Filed on 05/28/20 in TXSD Page 1 of 4
United States District Court
Southern District of Texas

ENTERED
May 28, 2020
David J. Bradley, Clerk

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
RANDALL E. ROLLINS,
Plaintiff,
vs.
GREENBERG
TRAURIG, LLP, et al.,
Defendants.

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CIVIL ACTION NO.
4:19-cv-01514
JUDGE CHARLES ESKRIDGE

MEMORANDUM AND ORDER
The motion by Plaintiff Randall E. Rollins to void prior
orders by Judge Andrew Hanen and for judgment on the
pleadings is denied. Dkt 72.
This action arises from a prior case before the justice of the
peace courts of Harris County, Texas, between Rollins and TD
Ameritrade Inc. See Dkt 31 at 2. It was originally there before
Judge Louie Ditta. Rollins filed a complaint with the State
Commission on Judicial Conduct against Judge Ditta, and the
case was transferred to Defendant Judge Lincoln Goodwin.
Rollins filed an affidavit of prejudice against him as well and again
complained to the State Commission on Judicial Conduct. Judge
Goodwin kept the case and eventually entered summary
judgment against Rollins. Dkt 7-10 at 2. Rollins then appealed to
the county court before Judge LaShawn Williams, who upheld
the grant of summary judgement.
Rollins proceeds pro se and brought this federal action against
Defendants State of Texas, Harris County, State Commission on
Judicial Conduct, Greenberg Traurig, LLP, TD Ameritrade, Inc.,
Judge Lincoln Goodwin, Kristen Jacobsen, Tommy Ramsey,
Shira Yoshor, and Does 1 through 99. He alleges a RICO
conspiracy and violations of his constitutional rights. Dkt 20.

Case 4:19-cv-01514 Document 83 Filed on 05/28/20 in TXSD Page 2 of 4

Judge Hanen held a scheduling conference on September 11,
2019. Rollins then filed an affidavit of prejudice against him.
Dkt 64. He there averred that Judge Hanen “has a personal bias
in favor of Defendants” and that he “is prejudice against [Rollins]
because [he is] appearing en pro se.” Rollins made a number of
other references comparing the situation to Nazi Germany,
Stalinist Russia, and other equally amplified metaphors. Judge
Hanen had previously expressed that he would recuse upon
request of any party. Dkt 65. And so he did, with the case then
transferring to this Court.
Rollins now asks for Judge Hanen’s prior orders to be
stricken as null and void. He identifies two but does not clearly
articulate what the concern is. In one order, Judge Hanen denied
as moot a motion to consolidate. Dkt 16. In another, he allowed
a third amended complaint by Rollins to be the operative
pleading, denied as moot Defendants’ pending motions to
dismiss, and denied as moot Rollins’ pending motions to strike.
Dkt 37.
Rollins refers to 28 USC § 144. It states:
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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Case 4:19-cv-01514 Document 83 Filed on 05/28/20 in TXSD Page 3 of 4

Plaintiff cites a number of authorities under Texas law
applicable to state-court proceedings. But the affidavit of
prejudice at issue here was made against a federal judge and must
be construed according to federal rules. The plain language of
§ 144 says nothing about prior orders by the judge being
automatically rendered null and void after the filing of an affidavit
of prejudice. The Court has also searched but found no case
suggesting this effect. A judge is instead only required to recuse
himself if he or she determines that the affidavit is legally
sufficient. Douglas v Houston Housing Authority, 587 Fed App’x 94,
98 (5th Cir 2014) (unpublished), quoting Phillips v Joint Legislative
Commission on Performance & Expenditure Review of Mississippi, 637
F2d 1014, 1019 (5th Cir 1981). Another circuit has expressly held
that an affidavit of prejudice does not “divest the court of
jurisdiction of either the subject-matter or the person of the
defendant.” Carrol v Zerbst, 76 F2d 961, 962 (10th Cir 1935).
Rollins may request reconsideration of any prior order
pursuant to Rule 60(b) of the Federal Rules of Civil Procedure
upon a showing of mistake, inadvertence, surprise, or excusable
neglect, among a few other reasons. See also Charles Wright and
Arthur Miller, Federal Practice & Procedure, § 2858 (3rd ed 2020).
Reconsideration may also be requested under the Court’s
equitable powers with a showing of “extraordinary
circumstances.” Thymes v Sans Chevaux Investments LLC, 790 Fed
App’x 649, 650 (5th Cir 2020) (unpublished), quoting Batts v TowMotor Forklift Co, 66 F3d 743, 747 (5th Cir 1995). But the motion
as filed—to simply void and nullify prior orders of a prior judge
without explanation of incorrectness—is denied.
Rollins also moves for judgment on the pleadings. Federal
Rule of Civil Procedure 12(c) provides, “After the pleadings are
closed—but early enough not to delay trial—a party may move
for judgment on the pleadings.” No defendant has yet filed an
answer in this case. The pleadings thus are not yet closed, making
the motion untimely as filed. See Mandujano v City of Pharr, Texas,
786 Fed App’x 434, 436 (5th Cir 2019) (unpublished), citing
Charles Wright and Arthur Miller, Federal Practice and Procedure, §
1367 (3d ed 2019). While the motion in this respect is denied, it
may be reasserted at the proper and later time.

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Case 4:19-cv-01514 Document 83 Filed on 05/28/20 in TXSD Page 4 of 4

The motion to void and nullify the prior orders of Judge
Hanen and for judgment on the pleadings is DENIED. Dkt 72.
SO ORDERED.
Signed on May 28, 2020, at Houston, Texas.

Hon. Charles Eskridge
United States District Judge

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