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Amy R. Gurvey v. Legend Films

July 15, 2011

AMY R. GURVEY,
PLAINTIFF,
v.
LEGEND FILMS, INC., FORMERLY KNOWN
AS LEGEND FILMS, LLC; ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Bernard G. Skomal United States Magistrate Judge

ORDER DENYING PLAINTIFF'S EX PARTE MOTION FOR EXPEDITED HEARING AND TO DISQUALIFY MAGISTRATE JUDGE

On July 13, 2011, nunc pro tunc to July 7, 2011, Plaintiff Amy Gurvey filed an ex parte motion for an expedited hearing prior to July 13, 2011 on extension of discovery and settlement and for the disqualification of the undersigned, United States Magistrate Judge Bernard G. Skomal, "for misconduct and bias." (Doc. No. 107.) On July 14, 2011, Defendants filed a response in opposition to Plaintiff's motion. (Doc. No. 108.)

Background

Plaintiff's current ex parte motion stems from recent events in this case concerning settlement conferences and Plaintiff's pro se status. On June 2, 2011, Andre Jardini filed an ex parte motion to withdraw as Plaintiff's attorney. (Doc. No. 82.) On June 13, 2011, the Court held a Mandatory Settlement Conference ("MSC") that required the personal appearances of all parties. Plaintiff Amy Gurvey failed to personally appear. (See Doc. No. 87.) Following the MSC, the Court ordered Plaintiff to show cause why sanctions should not be issued against her for this failure to appear and scheduled a further settlement conference for July 7, 2011 that required the personal appearance of all parties. (Doc. Nos. 87 & 89.) On June 20, 2011, Plaintiff filed a request for approval of substitution of attorney, seeking to substitute into the case to represent herself. (Doc. No. 93.) The Court granted Plaintiff's request. (Doc. No. 94.)

On June 23, 2011, nunc pro tunc to June 21, 2011, Plaintiff filed her declaration in response to the Court's OSC. (Doc. No. 96.) After receiving Plaintiff's declaration in response to the OSC, the Court declined to impose sanctions, finding that her failure to attend the MSC was not sanctionable under the circumstances. (Doc. No. 98.) Additionally, on June 24, 2011, the Court vacated the further settlement conference set for July 7, 2011 in light of her declaration and her recent substitution into the case to represent herself. (Doc. No. 97.) This order was served on Plaintiff via U.S. Mail on June 27, 2011. (Id.) On July 7, 2011, Plaintiff personally appeared at Judge Skomal's chambers for the vacated settlement conference.

Plaintiff asserts in her ex parte motion to disqualify and accompanying declaration, which is not signed under penalty of perjury, that Judge Skomal's chambers did not call or fax Plaintiff to advise that Judge Skomal vacated the settlement conference, and that on July 1 Plaintiff "asked Magistrate's secretary if she was still required to appear on the 7th and the secretary said yes until notified to the contrary." (Doc. No. 107 at 3-4, ¶¶ 7 & 9.) Plaintiff alleges that upon showing up for the vacated settlement conference, staff members were "anything but cordial" and that when the door closed after Plaintiff left chambers "she heard Magistrate and his secretary belly laughing." (Id. at 6, ¶25.) Plaintiff also makes several complaints regarding the filing of papers she submitted to the Court on her requests for electronic filing privileges and an extension of discovery. Plaintiff complains that her documents do not get docketed on the date received by the Court whereas Defendants' electronically filed documents do. (Id. at 5, ¶¶ 21-24.) Plaintiff asserts that "statements made by Magistrate's staff concerning faxing, receipt of papers, and docketing are untruthful" and "[t]hey demonstrate that Magistrate cannot provide an unbiased tribunal to Plaintiff, requiring Magistrate's disqualification." (Id. at 6, ¶26.)

Defendants oppose any disqualification of Judge Skomal. (Doc. No. 108.) Defendants take issue with Plaintiff's declaration, in which she claims that defense counsel contacted her "the day prior" to the settlement conference and asked her whether she intended to attend, thereby indicating that Defendants also believed the July 7 conference to be going forward. (See Doc. No. 107 at 4, ¶10.) Defendants state that this is false and misleading, as it was Plaintiff who contacted defense counsel on June 23, 2011, which was one day before the Court vacated the settlement conference, and that Defendants did not appear for the vacated conference. (Id. at 2-3; Plevin Decl. ¶2.) Defendants note that the Court vacated the July 7 settlement conference based on Plaintiff's declaration regarding her disability and vacated the conference less than 24 hours after Plaintiff's declaration was docketed. (Id. at 2.) Defendants also assert that notifying Plaintiff by telephone that the settlement conference was vacated would be extending Plaintiff special treatment because the Court cannot practically telephone every party whenever it issues a ruling. (Id. at 3.) As for Plaintiff's complaint that the Court also failed to fax her notice of the order vacating the settlement conference, Defendants aver that Plaintiff specifically informed defense counsel that faxing documents to her was unacceptable. (Id. at 3; Plevin Decl. ¶3, Ex. 1.) The Court notes that on previous filings by Plaintiff, she lists her fax number followed by a parenthetical explanation that the fax number is "not authorized for service of Court papers." (See Doc. Nos. 100, 103.) Defendants argue that Judge Skomal has invested significant time and judicial resources into this case and Plaintiff has failed to provide any sustainable argument for disqualifying Judge Skomal.

Discussion

I. Motion for Disqualification

The Court interprets Plaintiff's current ex parte motion as a motion for disqualification under 28 U.S.C. §455.*fn1 "Section 455 imposes an affirmative duty upon judges to recuse themselves." Yagman v. Republic Ins., 987 F.2d 622, 626 (9th Cir.1983). It provides in relevant part:

(a) Any justice, judge, or magistrate 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, or personal knowledge of disputed evidentiary ...


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