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Schafler v. Bank of America Merrill Lynch

United States District Court, N.D. California

June 26, 2014

PEPI SCHAFLER, Plaintiff,
v.
BANK OF AMERICA MERRILL LYNCH, Defendant.

ORDER DENYING MOTION FOR RECUSAL

PHYLLIS J. HAMILTON, District Judge.

Plaintiff Pepi Schlafler seeks an order disqualifying the undersigned district judge and an order of recusal under 28 U.S.C. § 455 and/or 28 U.S.C. § 144. The basis of her motion appears to be that on February 21, 2007, the undersigned granted the motions to dismiss filed by defendants in two prior related actions filed by plaintiff - Schafler v. HSBC Bank USA, C-06-5908 PJH and C-06-6887 PJH - and also granted defendants' motion to have plaintiff declared a vexatious litigant. Those rulings and the final judgment were affirmed by the Ninth Circuit Court of Appeals in a memorandum opinion issued January 26, 2009.

This case was randomly assigned to the undersigned pursuant to the court's Assignment Plan, as set forth in General Order 44. The general rule in federal court is that a judge should handle the cases assigned to him or her unless a legitimate reason for recusal exists. See United States v. Holland , 519 F.3d 909, 913 (9th Cir. 2008). Legitimate reasons for recusal are outlined in two statutes - 28 U.S.C. §§ 455 and 144-and in § 3(C) of the Code of Conduct for United States Judges.

Section 144 provides, in relevant part:

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 either 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....

28 U.S.C. § 144. If a judge finds a § 144 motion timely and the affidavit legally sufficient, the judge must proceed no further and another judge must be assigned to hear the matter. 28 U.S.C. § 144; U.S. v. Sibla , 624 F.2d 864, 867 (9th Cir. 1980).

Section 455 provides in relevant part:

(a) Any... judge... 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....

28 U.S.C. § 455.

Under both § 144 and § 455, the standard is whether "a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned." Pesnell v. Arsenault , 543 F.3d 1038, 1043 (9th Cir. 2008). A "reasonable person" is not "hyper-sensitive or unduly suspicious, " but rather a "well-informed, thoughtful observer." See id. (citing Holland , 519 F.3d at 913 (quotations omitted).

While the test for personal bias is the same under both statutes, the procedural requirements of the sections are different. Sibla , 624 F.2d at 867. Section 144 "expressly conditions relief upon the filing of a timely and legally sufficient affidavit." Id . (citations omitted). If the judge to whom the motion is directed determines that the accompanying affidavit specifically alleges facts stating grounds for recusal under § 144, "the legal sufficiency of the affidavit has ...


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