McCracken v. Shapiro & Sutherland LLC et al

Filing 41

ORDER denying 31 Motion for TRO; denying 32 Motion to Reassign Case; denying 33 Motion to Expedite; denying 34 Motion to Seal; denying 35 Motion to Change Venue; denying 36 Motion for Recusal; denying 37 Motion to Convene a Grand Jury; denying 38 Motion for Recusal; denying 39 Motion to Change Venue, signed by Judge Ronald B. Leighton. (DK)

HONORABLE RONALD B. LEIGHTON

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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ELLEN M MCCRACKEN,

CASE NO. C17-1596RBL

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Plaintiff,
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v.

ORDER
[Dkt. #s 31, 32, 33, 34, 35, 36, 37, 38 &
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SHAPIRO & SUTHERLAND LLC,

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Defendant.

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THIS MATTER is before the Court on nine motions filed by pro se Plaintiff McCracken:

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“Motion for Temporary Restraining Order Against Defendant(s) Leighton

And His Clerks Until Oral Argument Heard By Chief Judge Martinez” [Dkt. # 31].
McCracken asks this Court to restrain itself from hearing any of the motions she has filed
in this case until Judge Martinez can hear them, instead:

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ORDER - 1

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[Dkt. #31 at 6]. But this case is not assigned to Judge Martinez, and there is no oral argument
scheduled before him in this matter. McCracken’s prior effort [Dkt. # 19] to force this Court to
Recuse was denied [Dkt. # 20], and affirmed by Judge Martinez [Dkt. #25]. The Motion is
frivolous and it is DENIED.
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“Motion to Reassign Case” [Dkt. # 32].

This is a variation on the same theme. McCracken argues that she is not asking the Court
to recuse itself; she is instead notifying the Court that she has already determined that it is
disqualified:

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[Dkt. # 32 at 1] But that is not how it works. A litigant does not get to choose which Judge is

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assigned to her case, and it is well-settled that judicial rulings alone “almost never” constitute a

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valid basis for a bias or partiality motion. Liteky v. United States, 510 U.S. 540, 555 (1994). Nor

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is McCracken’s strategy of suing the Court a legitimate basis for obtaining recusal or

[DKT. #S 31, 32, 33, 34, 35, 36, 37, 38 & 39] - 2

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disqualification. A judge is not disqualified merely because a litigant sues or threatens to sue

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him. Such an easy method for obtaining disqualification should not be encouraged or allowed.

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See Ronwin v. State Bar of Arizona, 686 F.2d 692, 701 (9th Cir.1981), rev’d on other grounds

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sub nom. Hoover v. Ronwin, 466 U.S. 558 (1984) (internal quotation marks and citations

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omitted). See also U.S. v. Studley, 783 F.2d 934, 939 (9th Cir.1986) (the alleged prejudice

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warranting recusal “must result from an extrajudicial source; a judge’s prior adverse ruling is not

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sufficient cause for recusal.”)

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The Motion to Reassign is DENIED.

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“Motion to Expedite Emergency Appointment of Counsel in Criminal

Matter” [Dkt. # 33]

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McCracken seeks the appointment of counsel, which has already been denied. [Dkt. #s 2,

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16]. It is not clear what criminal matter she is referring to; she is the plaintiff in this civil case. If

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she is the defendant in a criminal case in some other court, her motion for the appointment of

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counsel should be addressed to that court. If she is referring to her repeated claim that the

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defendants in this case have committed fraud and other crimes, she is not entitled to an attorney

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to “prosecute” that criminal complaint for her. The Motion for Appointment of Counsel in this

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civil case is again DENIED.

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“Motion to Place Entire Case Under Seal Due to Qui Tam False Claims Act”

[Dkt. # 34]
McCracken now claims that this is a qui tam case, and that an unnamed attorney told her
that it must be placed under seal:

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[DKT. #S 31, 32, 33, 34, 35, 36, 37, 38 & 39] - 3

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[Dkt. #34 at 1] McCracken’s Amended Complaint does include the words “qui tam,” and she

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does now claim she is suing Shapiro and Sutherland for back taxes. But false claims acts require

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far more than that, and, despite what the “unretained lawyer” told her, there is no reason to seal

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this case on this record. The Motion to Seal is DENIED.

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“Motion to Change Venue For Cause/To many contacts with Tacoma and

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Defendants” [Dkt. # 35] and “Amended Motion to Change Venue from Tacoma to Seattle

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for Cause: Too Many contacts between Tacoma Court and Defendants Ronald B. Leighton,

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Clerks and Shapiro & Sutherland LLC” [Dkt. # 39]

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McCracken’s initial Motion to Change Venue contains only the caption described above,

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and a citation to 28 U.S.C. § 1404. But nothing in that statue or the cases construing it hold or

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even suggest that “too many contacts” in the forum is a basis for a change in venue. Indeed, the

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opposite is true.

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The Amended version is apparently based on the conduct of the Court:

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[DKT. #S 31, 32, 33, 34, 35, 36, 37, 38 & 39] - 4

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[Dkt. # 39 at 2].
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This is another claim that by ruling against McCracken, the Court has violated her rights
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in some actionable way, and that as a result the case should be moved to a different city. That
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position finds no support in the law cited, or in common sense. The Motion is DENIED.
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“Motion for Judge Leighton to Recuse upon Disqualification due to

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Demonstrated Bias & Prejudice in Orders #17, 18, & 30” [Dkt. #s 36 and 38]
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[DKT. #S 31, 32, 33, 34, 35, 36, 37, 38 & 39] - 5

McCracken’s most recent Motion(s) to Recuse contains only the caption described above,

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and a citation to 28 U.S.C. § 1441. She makes no effort to describe any basis for recusal, much

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less any new basis. McCracken’s disagreement with the Court’s rulings is not a valid basis for

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recusal, as the court has previously, repeatedly explained. The Motions are DENIED.

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“Motion to Convene a Grand Jury for Review of Void Judgments, Fraud &

Tax Evasion by Shapiro & Sutherland LLC” [Dkt. # 37]

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McCracken’s 35 page Motion to Convene a Grand Jury is a cut and paste of the annotated

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version of Federal Rule of Criminal Procedure 6. It makes no attempt to tie the rule to any fact or

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allegation in this case. The public has no interest in convening a grand jury at the behest of a

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civil litigant. The Motion is DENIED.

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Each of the pending Motions is DENIED.

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McCracken is WARNED that similar frivolous, repeat filings will be summarily denied

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and may result in sanctions.

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IT IS SO ORDERED.

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Dated this 8th day of February, 2018.

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A

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Ronald B. Leighton
United States District Judge

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Dkt. # 38 is similar, but also references the fact that Judge Leighton is a defendant.

[DKT. #S 31, 32, 33, 34, 35, 36, 37, 38 & 39] - 6