The opinion of the court was delivered by: Hon. Nita L. Stormes U.S. Magistrate Judge United States District Court
ORDER DENYING MOTION TO RECUSE [Doc. No. 27]
On February 16, 2010, as the last paragraph of a motion to extend the time to file a response to Defendant's motion for monetary and terminating sanctions, plaintiff Katherine Avilla Owen requested that Judge Stormes be recused from this case. The court construed her request as an independent motion for recusal, and set a hearing date of March 23, 2010. Defendant County of Imperial did not oppose the motion. Plaintiff bases her motion for recusal on an alleged failure to disclose a personal relationship with Defendant and bias in favor of defense attorney Mike Pérez. For the following reasons, the court DENIES Plaintiff's motion for recusal.
Plaintiff filed a complaint in Superior Court for battery, negligence and violation of the Americans with Disabilities Act of 1990. Plaintiff's claims arise from events stemming from her arrest by Defendant for an outstanding warrant based on excessive and harassing 911 telephone calls to Defendant. On September 26, 2008, Defendant removed the case to this court. The court held an Early Neutral Evaluation (ENE) on November 19, 2008. [Dkt. No. 6.]
At the ENE the parties appeared interested to continue settlement negotiations, such that the court agreed to set a voluntary settlement conference with them for December 12, 2008. [Dkt. No. 6.] Before that conference, the parties separately contacted the court. Based on these communications, the court determined that a continued settlement conference would not be fruitful at that time. [Dkt. No. 7.] The court then set Rule 26 compliance dates and noticed a telephonic case management conference. [Dkt. No. 6.] The court held a case management conference on February 6, 2009 and issued a scheduling order that day. [Dkt. Nos. 9, 10.]
On May 14, 2009, Defendant filed a request to set another settlement conference. [Dkt. No. 11.] Defendant's attorney, Mr. Pérez, attached an offer to compromise that Plaintiff had sent to him on March 18, 2009. Mr. Pérez stated that he had left two messages with Ms. Owen, one on March 23, 2009 and another shortly afterward, in an attempt to clarify her offer. Because he never heard back, he sent Ms. Owen a letter stating that he thought it would be in the interest of all parties to conduct another settlement conference with Judge Stormes, and told her that he would contact Judge Stormes' chambers to request a settlement conference date. On June 1, 2009, in response to the notice, the court set a telephonic status conference regarding settlement for June 19, 2009. [Dkt. No. 12.] On June 16, 2009, Ms. Owen filed a motion to continue the status conference. [Dkt. No. 14.] She did not object to holding the conference and in fact stated she was open to hearing Defendant's settlement offer. The court continued the status conference to June 26, 2009. [Dkt. No. 13.]
The court held the status conference on June 26, 2009. [Dkt. No. 15.] Mr. Pérez, however, did not appear at the scheduled time, and called in approximately 45 minutes late. [Dkt. No. 15.] The court, by then, had already spoken to Ms. Owen and had set an order to show cause (OSC) hearing for Mr. Pérez for why sanctions should not be imposed for his failure to comply with the court's order. [Dkt. No. 16.] Mr. Pérez filed a declaration explaining that he had mistakenly not calendared the status conference, and in any event, he could not have participated at that time because he was on a flight that had been delayed due to a lightning storm, and he did not land or have access to his phone until approximately 30 minutes after the conference. [Dkt. No. 17.] Once he accessed his messages and realized his mistake, he called into the court. Based on his good cause statement and supporting evidence, the court vacated the OSC and declined to impose sanctions. [Dkt. No. 18.]
Meanwhile, Ms. Owen had spoke with Judge Stormes during the June 26, 2009 status conference. During that call Ms. Owen says she terminated all settlement conferences with Magistrate [Judge] Nita Stormes personally and informed her that Plaintiff would file a complaint for her unethical misconduct during the conference to include 1) failure to disclose a personal relationship with Defendant at the outset of the conference; 2) encouraging an unethical settlement; 3) making settlement conferences at the unilateral request of Attorney Perez.
Motion for Recusal, p.2 [Dkt. No. 27].
Ms. Owen appears to have filed or attempted to file a complaint for judicial misconduct in August 2009. Motion for Recusal, Ex. 3. In her motion for recusal, Ms. Owen refers to the judicial misconduct complaint as the basis for the recusal motion. Id. In that complaint, Ms. Owen alleges these, among other facts, regarding Judge Stormes' actions in this case:
! Ms. Owen is a disabled immigration attorney with limited experience in civil litigation compared to Mr. Pérez, and Judge Stormes should have been more conscientious "to ensure that the rights of a disabled person, a vulnerable person were being protected and she did not." ¶ 1.
! Judge Stormes conducted the ENE "with the intent of assisting Michael Perez, her colleague at the Federal Prosecutor's Office, to gain an advantage in the negotiations and settlement." ¶ 2.
! Before starting settlement negotiations, Judge Stormes failed to disclose her previous co-worker relationship with Mr. Pérez and obtain the parties' consent before going forward. ¶ 3.
! Ms. Owen learned of the work relationship when Judge Stormes mentioned it at the end of the ENE, and after Ms. Owen revealed private information to Judge Stormes and relied on her ...