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No Grey Sky, Inc., et al v. United States Department of Justice

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


November 26, 2012

NO GREY SKY, INC., ET AL., PLAINTIFFS,
v.
UNITED STATES DEPARTMENT OF JUSTICE, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Dean D. Pregerson United States District Judge

ORDER DENYING DEFENDANT'S MOTION TO DISQUALIFY JUDGE OTERO [Dkt. No. 6. Referral to DDP at Dkt. No. 8]

This matter comes before the court on Alex Lazar's Affidaiat of Prejudice under 28 U.S.C. § 144, which this court interprets as a motion to disqualify Judge Otero. Having reviewed Lazar's submission, the court DENIES the motion and adopts the following order.*fn1

28 U.S.C. § 144 is substantively the same as 28 U.S.C. § 455. United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997). As the Ninth Circuit has explained:

The test under § 455(a) is whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned. Typically, a judge's partiality must be shown to be based on information from extra-judicial sources, although sometimes, albeit rarely, predispositions developed during the course of a trial will suffice. In the instance where the partiality develops during the course of the proceedings, it can be the basis of recusal only when the judge displays a deep-seated and unequivocal antagonism that would render fair judgment impossible.

F.J. Hanshaw Enters., Inc. v. Emerald River Dev., Inc., 244 F.3d 1128, 1144-45 (9th Cir. 2001) (internal quotations and citations omitted).

Lazar asserts that Judge Otero is biased against him by dint of Judge Otero's prior service (1) on the board of a community organization and (2) as a judge of the Los Angeles County Superior Court, as well as by executive policies in place at the time of Judge Otero's appointment to the federal bench. (Mot. ¶¶ 3-4.) No reasonable person could conclude from these assertions that Judge Otero bears a "deep-seated and unequivocal antagonism" toward Plaintiff "that would render fair judgment impossible." F.J. Hanshaw Enters., 244 F.3d at 1144-45. Accordingly, the Motion for Disqualification is DENIED.

IT IS SO ORDERED.


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