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Noland v. Pelletier

February 24, 2010

MILTON CHARLES VAN NOLAND AND JOY GARNER, PLAINTIFFS,
v.
ERIC S. PELLETIER AND "GRRR! LIMITED," DEFENDANTS.



ORDER

This case came before the undersigned on September 18, 2009, for hearing of plaintiffs' August 18, 2009 motion to remand this action to Nevada County Superior Court. Plaintiffs Milton Charles Van Noland and Joy Garner, both proceeding pro se, appeared on their own behalf. James Patrick Arguelles appeared as counsel for defendants. After hearing the parties' arguments, plaintiffs' motion was taken under submission. For the reasons set forth below, plaintiffs' motion for remand is denied.

In this order, the undersigned also addresses and denies plaintiffs' motions for recusal of the undersigned, as well as all other unresolved motions appearing on the docket as of the date of this order.

PROCEDURAL HISTORY

This action was removed from state court by defendants' Notice of Removal filed July 22, 2009. (Doc. No. 2.) Defendants served a copy of the notice upon the plaintiffs by United States mail on the same date. (Doc. No. 3). On July 27, 2009, plaintiffs filed a motion titled, in part, Motion for Expedited Remand to Nevada County Court. (Doc. No. 7.) The motion was not noticed for hearing, as required by Local Rule 230(a) and (b). On July 30, 2009, plaintiffs filed an ex parte motion for an order shortening time, seeking a hearing before the undersigned at 10:00 a.m. on July 31, 2009, and requesting sanctions against defendants in the form of a dismissal of the notice of removal. (Doc. No. 11.) Plaintiffs' ex parte motion was denied without prejudice to the filing of a properly noticed motion for remand and/or for sanctions. (Doc. No. 12.)

On July 31, 2009, plaintiffs filed a second motion for order shortening time and set that motion and a second motion for sanctions for hearing before the undersigned on August 7, 2009. (Doc. Nos. 13, 14, 15.) By minute order filed August 4, 2009, plaintiffs were notified that their motions were defectively noticed and would not be heard on August 7, 2009. (Doc. No. 16.)

On August 10, 2009, plaintiffs filed a motion for sanctions and properly noticed the motion for hearing on September 11, 2009. (Doc. No. 17.) On August 18, 2009, plaintiffs filed a motion for remand and properly noticed the motion for hearing on September 18, 2009. (Doc. No. 18.) However, the motion for remand was also accompanied by plaintiffs' third motion for an order shortening time, seeking a hearing on the next available date. (Doc. No. 20.) Plaintiffs also filed an unnoticed motion for contempt. (Doc. No. 23.) Plaintiffs' third motion for order shortening time was not granted and is moot.

On September 1, 2009, defendants requested that the court consolidate the hearings set for September 11, 2009, and September 18, 2009, and set both motions for hearing on the later date. (Doc. No. 30.) Plaintiffs objected to the request. (Doc. No. 38.)

On September 1, 2009, plaintiffs filed their first motion for recusal of the undersigned. (Doc. 35.) The unnoticed motion was addressed to the assigned district judge.

On September 2, 2009, defendants filed an ex parte application for an order prohibiting plaintiffs from filing documents in the state court case that has been removed to this court. (Doc. No. 32.) Plaintiffs objected and filed an unnoticed Additional Motion for Sanctions and a second unnoticed motion for recusal of the undersigned, again addressed to the assigned district judge. (Doc. Nos. 36, 37, 39.)

At the hearing of plaintiffs' motion for sanctions on September 11, 2009, the undersigned denied defendants' request to consolidate the two hearings, denied plaintiffs' noticed motion for sanctions without prejudice to renewal in the event the court later found no colorable basis for removal, denied plaintiffs' motion for contempt without prejudice, and denied defendants' ex parte application for an order prohibiting the filing of documents in the state court. (Doc. Nos. 41, 42.)

In violation of Local Rule 230(b) and (d), and without leave of court, plaintiffs continued to file additional briefing in support of their remand motion through September 14, 2009. At the hearing of the motion on September 18, 2009, plaintiffs offered additional authority in support of their arguments. After hearing the parties' arguments, the undersigned took the motion for remand under submission and indicated that the parties should not submit further briefing. The undersigned also advised the parties that, due to the extraordinary volume of cases in this district, no promise could be made regarding the date on which the undersigned would issue an order or findings and recommendations addressing the motion for remand.

Plaintiffs began filing additional briefing on September 23, 2009, and have continued to file motions, requests, and memoranda regarding remand. Within a week after the hearing, plaintiffs filed a demand for an expedited ruling and have filed similar demands regularly since that time. Duplicative motions filed by plaintiffs through January 26, 2010 have been denied. (Doc. Nos. 58, 69.) Plaintiffs filed seven more motions between February 5, 2010 and February 22, 2010, further delaying the issuance of this order. All motions appearing on the docket as of the date of this order will be denied, including plaintiffs' second motion for evidentiary hearing, two motions for leave to file an amended motion for remand, two motions to "alter and amend" the court's February 4, 2010 order, and two motions to compel responses to discovery requests related to jurisdiction. (Doc. Nos. 70 through 77.)

PLAINTIFFS' MOTIONS FOR RECUSAL

The undersigned turns first to plaintiffs' motions for recusal filed September 1, 2009 (Doc. No. 35), September 8, 2009 (Doc. No. 37), and January 11, 2010 (Doc. No. 61). The motions, which cite no legal authority for recusal, are liberally construed as motions to disqualify pursuant to 28 U.S.C. § 455(a).

The decision regarding disqualification is made by the judge whose impartiality is at issue. Bernard v. Coyne, 31 F.3d 842, 843 (9th Cir. 1994); United States v. Studley, 783 F.2d 934, 940 (9th Cir. 1986). A judge is required to disqualify himself from a case if his impartiality might reasonably be questioned, 28 U.S.C. § 455(a), or if he has a personal bias or prejudice against a party, 28 U.S.C. § 455(b)(1).

Rulings made during the course of a judicial proceeding that are unfavorable to a party or his case ordinarily will not support a bias or partiality claim unless they reveal an extra-judicial source for the ruling or "such a high degree of favoritism or antagonism as to make fair judgment impossible." Liteky v. United States, 510 U.S. 540, 554 (1994). The same standard applies to remarks made during the course of a judicial proceeding. Id. Thus, where the source of alleged bias or prejudice is a judicial proceeding, a litigant seeking recusal must show a disposition on the part of the judge that "is so extreme as to display clear inability to render fair judgment." Id. at 551. Put another way, "opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible." Id. at 555.

In their first motion for recusal, filed on September 1, 2009, plaintiffs contend that the undersigned should have sua sponte remanded this case immediately or should have granted plaintiffs' motion for order shortening time. Plaintiffs contend that failure to remand the case immediately was prejudicial to them. In short, this motion is grounded on the denial of plaintiffs' initial motion for order shortening time and on the decision not to grant plaintiffs' second ex parte motion for an order shortening time. Such adverse rulings do not comprise an adequate basis for recusal. See Leslie v. Grupo ICA, 198 F.3d 1152, 1160 (9th Cir. 1999) ("Leslie's allegations stem entirely from the district court judge's adverse rulings. That is not an adequate basis for recusal.").

Plaintiffs' second motion for recusal was filed just ten days prior to the scheduled hearing of plaintiffs' motion for remand. In this motion, plaintiffs renew their complaint about the denial of their motion for an order shortening time, assert that the undersigned is a friend of one of defendants' attorneys, and contend that the sole reason to delay remand is to permit defendants to violate a state court order that was entered prior to removal. Plaintiffs also complain of the continued involvement of a magistrate judge in this case despite their filing of forms declining to consent to proceed before a magistrate judge. In their third motion for recusal, filed on January 11, 2010, plaintiffs claim that in a conversation with defendants' counsel seven days prior to the filing of the court's January 6, 2010 order, counsel "boasted" of an ex parte communication with the undersigned and told plaintiffs that he had gotten their January 15, 2010 hearing vacated. Plaintiffs also complain of statements made by the undersigned on September 18, 2009, concerning the meaning of the preliminary injunction issued by the state court judge. Plaintiffs question the sincerity of the statements and suggest that the undersigned either has inadequate reading skills or intentionally misrepresented the meaning of the state court's order for the purpose of "protecting" defense counsel.

The contentions in plaintiffs' second and third motions for recusal fail to support disqualification because they are baseless. The undersigned did not have an ex parte communication with defendants' counsel concerning the motion that was noticed for hearing on January 15, 2010 and is not a "friend of" defense counsel. Nor has the undersigned had any ex parte communication with counsel concerning this case. The undersigned has no bias or prejudice, personal or otherwise, against pro se litigants in general or the plaintiffs in ...


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