United States District Court, N.D. California
ORDER RE: DKT. NOS. 76, 79
PHYLLIS J. HAMILTON UNITED STATES DISTRICT JUDGE
the court are two motions filed by pro se defendants Walter
James Kubon Jr. and Vally Kubon (the “defendants”
or the “Kubons”). First, on May 23, 2019,
defendants filed a motion to recuse or disqualify the
undersigned pursuant to 28 U.S.C. §§ 144 & 455.
Dkt. 76. Second, on June 10, 2019, defendants filed a
“motion to show cause, ” which appears to
challenge this court's jurisdiction over defendants and
seeks dismissal of the action. Dkt. 79. Plaintiff the United
States of America (the “government”) failed to
file a timely opposition to the former motion but did later
file an opposition attached to an administrative motion
seeking a belated extension of the government's time to
respond. Dkt. 80. The government did not file an opposition
to the second motion and the court has not received any
replies from the Kubons. Having read the parties' papers
and carefully considered their arguments and the relevant
legal authority, and good cause appearing, the court hereby
DENIES both of defendants' motions.
August 8, 2018, the government commenced this unpaid
taxes-related action against the defendants. Dkt. 1. On March
29, 2019, the government moved for summary judgment on both
of its causes of action. Dkt. 55. The Kubons' only
response to that motion-and indeed the Kubons' only
arguments throughout this litigation-consisted of
oft-rejected tax avoider arguments that entirely lack merit.
See Dkts. 34, 59, 66. May 2, 2019, the court granted
the government's motion and entered judgment against the
Kubons, thereby reducing to judgment the outstanding federal
tax assessments and foreclosing the associated federal tax
liens upon the defendants' real property. Dkt. 66.
the Kubons appealed the court's order and judgment, Dkt.
72, the Kubons moved this court to vacate the judgment. Dkt.
73. The court denied that motion because the court lacked
jurisdiction to consider aspects of the case that were
already on appeal. See Dkt. 75.
Motion to Show Cause
the court can tell, defendants' motion to show cause
argues that this court lacks subject-matter jurisdiction and
lacks personal jurisdiction over the defendants. Defendants
do not reference any specific cognizable reason why this
court might lack personal or subject-matter jurisdiction, but
instead insist that the court must show why it has
jurisdiction. The court lacks jurisdiction to consider the
Kubons' subject-matter jurisdiction-related arguments
because they hinge on the belief that the federal tax laws do
not apply to the Kubons, which is an issue already on appeal.
See Stein v. Wood, 127 F.3d 1187, 1189 (9th Cir.
1997). As to personal jurisdiction, the Kubons have presented
no evidence (nor any assertion) that they do not reside
within this judicial district or that the tax liabilities
that are the subject of this suit did not arise within this
judicial district. Similarly, the real property that the
government sought to secure the tax assessments upon is
located in this judicial district. Based on those facts,
which the Kubons do not contest, the court has personal
jurisdiction over the Kubons.
the Kubons' “motion to show cause” is DENIED.
Motion to Disqualify
defendants move to disqualify the undersigned under 28 U.S.C.
§§ 144 and 455. Defendants' argument on this
front again raises a number of issues that this court lacks
jurisdiction to consider because of defendants' pending
appeal. As best the court can tell, defendants'
forty-eight page filing raises only four new arguments: (1)
The court's prior denial of the Kubons' motion to
dismiss “amount[ed] to libel and slander, ” which
may reasonably be perceived as the undersigned harboring
prejudice or bias against the defendants; (2) The undersigned
“lied” to Walter Kubon when she stated that he
could not represent his wife, Vally Kubon; (3) The
undersigned believes that “she has jurisdiction over
anyone and everyone, ” rather than, according to
defendants, just “federal employees and [ ] matters
related to the District of Columbia and the ‘Federal
Zone;'” and (4) The undersigned, according to the
Kubons, “has conspired with [the] United States
Attorney's” and “is involved in a conspiracy
to maliciously prosecute the” defendants. Those
arguments lack any basis in fact and, in any event, do not
constitute grounds for judicial disqualification or recusal.
standard for disqualification under § 455 is
“whether a reasonable person with knowledge of all the
facts would conclude that the judge's impartiality might
reasonably be questioned.” Clemens v. U.S. Dist.
Court for Cent. Dist. of California, 428 F.3d 1175, 1178
(9th Cir. 2005). Unlike a motion to disqualify under 28
U.S.C. § 144, § 455 has no procedural requirements
and includes no provision for the referral of the question of
recusal to another judge. See United States v.
Sibla, 624 F.2d 864, 867-68 (9th Cir. 1980). Thus, the
decision regarding disqualification under § 455 is made
by the judge whose impartiality is at issue. See In re
Bernard, 31 F.3d 842, 843 (9th Cir. 1994).
the court finds that the defendants have failed to
demonstrate any reason for recusal or disqualification under
§ 455. Defendants' first, second, and third
arguments essentially challenge this court's prior
rulings. That is not enough: “The alleged prejudice
must result from an extrajudicial source; a judge's prior
adverse ruling is not sufficient cause for recusal.”
United States v. Studley, 783 F.2d 934, 939 (9th
Cir. 1986); Mayes v. Leipziger, 729 F.2d 605, 607
(9th Cir. 1984) (“A judge's previous adverse ruling
alone is not sufficient bias.”). As to the fourth
argument, defendants' factually unsupported assertion
that the undersigned is engaged in a conspiracy with the
plaintiff or the U.S. Attorney's Office is insufficient
to suggest impartiality or bias on the part of the
undersigned. Clemens, 428 F.3d at 1180
(“Section 455(a) does not require recusal based on
speculation.”); Yagman v. Republic Ins., 987
F.2d 622, 626 (9th Cir.1993) (recusal not warranted under
§ 144 or § 455 based on speculation). Accordingly,
defendants' motion for recusal of the undersigned under
§ 455 is DENIED.
defendants' § 144 motion for disqualification, the
applicable standard remains the same. See Sibla, 624
F.2d at 867; Pesnell v. Arsenault, 543 F.3d 1038,
1043 (9th Cir. 2008), abrogated on other grounds by
Simmons v. Himmelreich, 136 S.Ct. 1843, 195 L.Ed.2d
106 (2016). However, the procedural requirements under §
144 are somewhat different. Section 144 “expressly
conditions relief upon the filing of a timely and legally
sufficient affidavit.” Sibla, 624 F.2d at 867.
If the judge to whom the motion is directed finds that the
party has satisfied that procedural requirement, “the
motion must ...