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Wanxia Liao v. United States of America

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


December 23, 2011

WANXIA LIAO,
PLAINTIFF,
v.
UNITED STATES OF AMERICA, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Claudia Wilken United States District Judge

ORDER DENYING AS MOOT DEFENDANTS CNN'S AND DOW JONES' MOTIONS TO DISMISS, DOCKET NOS. 31, 33, 40 and 41, AND THE UNITED STATES' MOTION FOR AN ORDER SHORTENING TIME, DOCKET NO. 43; SETTING BRIEFING SCHEDULE AND DEADLINE FOR PLAINTIFF TO SERVE PROCESS; VACATING JANUARY 26, 2012 HEARING DATE; and DENYING PLAINTIFF'S REQUEST FOR AN ORDER OF RECUSAL, DOCKET NO. 51

In this action, Plaintiff Wanxia Liao has brought suit against numerous governmental and non-governmental Defendants. On November 7, 2011, Defendants Cable News Network (CNN) and Dow 25 Jones & Company, Inc, erroneously sued as The Wall Street Journal, 26 moved to dismiss Liao's claims. Docket Nos. 31 and 33. 27 Subsequently, Liao submitted an amended complaint, and CNN and Dow 28 Jones moved to dismiss claims against them alleged in that complaint. Docket Nos. 40 and 41. On December 12, 2011, the 2 action was reassigned to the undersigned and all matters then 3 scheduled for hearing, including the motions to dismiss, were 4 vacated. On December 14, 2011 CNN and Dow Jones refiled their 5 motions to dismiss the claims in the amended complaint. Docket 6 Nos. 47 and 49. In light of the above, the motions to dismiss 7 claims in the original complaint are denied as moot, as are the 8 first two motions to dismiss claims in the amended complaint. 9 Docket Nos. 31, 33, 40 and 41.

Because CNN's and Dow Jones' remaining motions to dismiss are nearly identical to each other and the arguments were included in their earlier motions to dismiss, Plaintiff shall file and serve a 13 consolidated opposition to both motions, not to exceed twenty-five 14 pages, on or before January 3, 2012. If Plaintiff does not file 15 an opposition by that deadline, the claims will be dismissed for 16 failure to prosecute. On December 27, 2011, Plaintiff shall also 17 submit her opposition, not exceed twenty-five pages, to the United 18 States' motion to declare her a vexatious litigant.

On or before January 10, 2012, CNN and Dow Jones may file a 20 consolidated reply, not to exceed fifteen pages, and the United 21 States may file a reply, not to exceed fifteen pages. 22 The Court will consider all three motions on the papers. The January 26, 2012 hearing dates are vacated, and the United States' 24 motion for an order shortening time is denied as moot. Docket 25 No. 43.

It also appears that Plaintiff has not properly served summons, the complaint and the amended complaint on Defendants pursuant to Federal Rule of Civil Procedure 4. CNN and Dow Jones, unlike the United States, have waived service of process by 1 2 appearing and litigating the action without raising the issue.

Within thirty days, Plaintiff shall serve all Defendants, except 4 for CNN and Dow Jones, pursuant to Rule 4, and submit proof of 5 service to the Court, otherwise her claims against those 6 Defendants will be dismissed for failure to prosecute. 7

Finally, on December 16, 2011, Plaintiff filed a "Declaration 8 under § 144 of USC Bias or Prejudice of Judge to Disqualify 9 10 Claudia Wilken." The filing appears to be a request for an order of recusal.

Title 28 U.S.C. § 455(a) states, "Any justice, judge, or 13 magistrate judge of the United States shall disqualify himself in 14 any proceeding in which his impartiality might reasonably be 15 questioned." Section 455(b) enumerates several additional 16 circumstances in which a judge shall disqualify him or herself 17 from a proceeding, including, where the judge has a personal bias 18 19 or prejudice concerning a party. See, e.g., 8 U.S.C. § 455(b)(1).

The standard applied under § 455 includes an objective test--"a 21 judge must recuse in any case where 'his impartiality might 22 reasonably be questioned'"--and a subjective test, requiring the 23 judge "'to determine whether he can be truly impartial when trying 24 the case.'" United States v. Spangle, 626 F.3d 488, 495-96 (9th 25 Cir. 2010) (quoting § 455(a) and United States v. Holland, 519 26 27 F.3d 909, 911-12 (9th Cir. 2008)). A judge's impartiality cannot be questioned reasonably solely on the basis of a party's dissatisfaction with the court's prior ruling. Such 1 2 dissatisfaction is the gist of Plaintiff's argument here. The undersigned is able to be impartial in presiding over this case. 4 Having considered Plaintiff's request, the Court denies it.

IT IS SO ORDERED.

20111223

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