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Jimena v. UBS AG Bank

July 1, 2010

CARL L. JIMENA, PLAINTIFF,
v.
UBS AG BANK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF'S MOTION TO DISQUALIFY

(Doc. 219)

On June 15, 2010, Plaintiff Carl L. Jimena, proceeding in pro per, filed a "Motion and Memorandum to Disqualify Judge Oliver W. Wanger," (Doc. 219), pursuant to 28 U.S.C. §§ 144 and 455(a) and (b)(1).*fn1

Section 144 provides:

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 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 the 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. Section 455(a) provides in pertinent part:

28 U.S.C. § 455 provides in pertinent part:

(a) Any... judge... of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party....

Plaintiff asserts thirteen grounds in support of his motion to recuse:

1. Rejecting the decision of the California Johnson & Johnson v. Superior Court, (1985 38 Cal.3d 243, 250 Supreme Court in, interpreting § 425.40 California Code of Civil Procedure that service of summons and complaint is complete on the date of mailing:

[a) Service of the amended complaint by certified airmail on Jan. 31, 2007 to UBS FS, Weehauken, New Jersey Branch (proof of service, Doc. 8, Exh. C, Annex 3,) was complete on the date of mailing, not on the 10th day after mailing as held by the California Supreme Court in the case of Johnson & Johnson v. Superior Court (1985) 38 Cal.3d 243, 250 which is binding on the District Court as 248 F.3d 832, 839 (9 held in the case of ( th Cir. -, (Doe v. Otte 2001); West v. American Tel. & Tel. Co. 311 U.S. 233, 237 [1940]; Meier ex rel. Meier v. Sun Intern. Hotels, Ltd. 288 F.3d 1264, 1271 [11th Cir 2002)] see Doc. 18, p.7, line 10-13;

2. Rejecting the decision of the Superior Court of California that service on the P.O. Box of the summons and complaint on the alleged agent Corporation Service Company (CVS) was invalid. [Doc. 18, p.6, line 12-14, p. 7, line 1-3];

3. Rejecting the application of the decision in U.S. v. Toyota Motor Corp., infra, that the alter ego doctrine is satisfied by the 'marketing conduit' doctrine 'Plaintiff cites United States v. Toyota Motor Corp. 354, 359 (C.D.Cal.1983), 561 F.Supp. as authority for imposition of alter ego liability on UBS FS for actions of UBS AG based on this assertion. Toyota Motor Corp. does not involve the issue of alter ego liability but, rather, in personum jurisdiction.' (Doc. 124, ...


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