United States District Court, S.D. California
SARA ELIZABETH SIEGLER, et al. Plaintiffs,
SORRENTO THERAPEUTICS, INC., et al., Defendants.
ORDER DENYING MOTIONS FOR RECONSIDERATION AND RECUSAL
[ECF NO. 134, 142.]
GONZALO P. CURIEL UNITED STATES DISTRICT JUDGE.
August 2, 2019, the Court dismissed with prejudice all the
claims in Plaintiff Sara Elizabeth Siegler's
(“Plaintiff”) second amended complaint
(“SAC”) against Defendants Sorrento Therapeutics,
Inc.; TNK Therapeutics, Inc.; BDL Products, Inc.; Cargenix
Holdings LLC; Prospect Chartercare Roger Williams Medical
Center LLC; Henry Ji; Richard Paul Junghans; Steven C. Katz;
and Tufts Medical Center (collectively,
“Defendants”). (ECF No. 126.) The Clerk entered
judgment. (ECF No. 127.)
August 30, 2019, Plaintiff filed a motion for reconsideration
of the Court's decision to dismiss the SAC. (ECF Nos.
134, 136.) On September 10, 2019, Plaintiff filed a second
motion seeking that Judge Gonzalo Curiel, the assigned judge
handling this matter, recuse himself or be disqualified. (ECF
No. 142.) On October 18, 2019, Defendants filed a response to
Plaintiff's motions for reconsideration and recusal. (ECF
No. 144.) On December 6, 2019, Plaintiff filed a reply and
corresponding supplement. (ECF Nos. 147, 148.) On December
17, 2019, Plaintiff failed an additional exhibit. (ECF No.
Court now must determine if Plaintiff, proceeding pro se, has
provided sufficient reason to support recusal or reverse the
dismissal of the SAC. In considering these motions, the Court
is mindful that this litigation is of great importance to
Plaintiff. Throughout these proceedings, the Court has
endeavored to respectfully identify the applicable rules and
any deficiencies in the operative pleadings to allow
Plaintiff to comply with the rules and to cure any defects.
However, upon review of the filed papers and applying the
applicable law, the Court concludes that there is no basis
for the Court's recusal or to reconsider the Court's
order dismissing the SAC.
Motion for Recusal
threshold matter, the Court will consider the recusal motion
first. Plaintiff's motion for recusal focuses on the
Court's decisions on Plaintiff's prior motions.
Consequently, the Court will identify those orders, and then
address whether they warrant recusal or disqualification.
“shall disqualify himself in any proceeding in which
his impartiality might reasonably be questioned” or
where “he has a personal bias or prejudice concerning a
party.” 28 U.S.C. § 455(a)-(b)(1); Liteky v.
United States, 510 U.S. 540 (1994) (discussing 28 U.S.C.
§ 144). Under the “two recusal statutes, 28 U.S.C.
§§ 144 and 455, the substantive question is whether
a reasonable person with knowledge of all the facts would
conclude that the judge's impartiality might reasonably
be questioned.” Guerra v. Paramo, 251
Fed.Appx. 424, 425 (9th Cir. 2007) (citation omitted);
see also Pesnell v. Arsenault, 543 F.3d 1038, 1043
(9th Cir. 2008), abrogated on other grounds by Simmons v.
Himmelreich, 136 S.Ct. 1843, 1846 (2016). In determining
whether to recuse, a judge must assess “all the
circumstances, ” Sao Paulo State of Federative
Republic of Brazil v. American Tobacco Co., Inc., 535
U.S. 229, 232 (2002) (emphasis in original removed), and need
not have been aware of the “disqualifying
circumstance” in order to find that “‘his
impartiality might reasonably be questioned' by other
persons.” Liljeberg v. Health Servs. Acquisition
Corp., 486 U.S. 847, 859, 862 (1988) (quoting 18 U.S.C.
“alleged bias and prejudice to be disqualifying,
” the judge's conduct or attitude “must stem
from an extrajudicial source and result in an opinion on the
merits on some basis other than what the judge learned from
his participation in the case.” United States v.
Grinnell Corp., 384 U.S. 563, 583 (1966); see also
Rygg v. Hulbert, 603 Fed.Appx. 645, 646 (9th Cir. 2015)
(finding that the judge's orders “do not
demonstrate bias stemming from an extrajudicial
source”). The mere issuance of “[a]dverse
decisions do[es] not establish bias or even hint at
bias.” Khor Chin Lim v. Courtcall Inc., 683
F.3d 378, 380 (7th Cir. 2012) (Easterbrook, J.) (citations
omitted). Likewise, that a jurist does not change his
“clear understanding” of how an issue should be
decided despite subsequent proceedings on that issue is no
basis for a finding of bias. In re Smith, 317 F.3d
918, 933 (9th Cir. 2002), abrogated on other grounds by
Lamie v. United States Tr., 540 U.S. 526, 531-39 (2004).
In recusal motions involving pro se litigants, courts have
held, moreover, that a judge's remarks do not amount to
bias unless they evince a “deep-seated and unequivocal
antagonism that rendered a fair judgment impossible.”
Mitchell v. Kirk, 20 F.3d 936, 938 (8th Cir. 1994)
(citing Liteky, 510 U.S. at 555-56).
Allegations of Bias & Relevant Background
Plaintiff's Requests for Extensions
contends that the Court's denials of her requests for
additional pages or filing extensions, despite “being a
learning disabled pro se litigant, ” evince bias. (ECF
No. 142 at 3-4.) Plaintiff refers to the five following
motions. (Id. (citing ECF Nos. 51, 79, 106, 112,
on October 16, 2018, the Court found Plaintiff's request
for a filing extension on her response briefs to
Defendants' motions to dismiss the first amended
complaint (“FAC”), (ECF Nos. 18, 19), was moot
because she submitted a response “in conformity with
the Court's original scheduling order.” (ECF No. 51
at 3.) The Court nonetheless granted Plaintiff leave to
exceed page limitations. (Id. at 4.)
on March 1, 2019, the Court issued an order in response to
Plaintiff's request for additional pages on
Plaintiff's motion to reconsider and clarify the
Court's order dismissing the FAC, (ECF Nos. 75, 76, 80),
and an extension to file the SAC. (ECF No. 79.) The Court
granted both requests, hereby permitting ten (10) extra pages
for Plaintiff's motion and granting an extra five (5)
weeks to file the SAC. (Id. at 2.)
on June 20, 2019, the Court permitted Plaintiff to withdraw
and re-file response briefs to Defendants' two motions to
dismiss the SAC, (ECF Nos. 90, 91, 113, 114), so as to
accommodate Plaintiff's concern that the initial
responses were “rushed and incomplete . . . because
there had not been any ruling on her” request for an
extension by the time she filed. (ECF No. 106 at 6.) The
Court then partially granted Plaintiff's request for
extra pages by approving up to thirty pages on each response
and extended the deadline to file from June 10, 2019 to July
1, 2019. (Id. at 7.)
on June 28, 2019, the Court granted another fifteen-day
extension expiring on July 15, 2019 to accommodate
Plaintiff's further request for time to file responses to
Defendants' motions to dismiss the SAC. (ECF No. 112 at
2.) The Court then denied Plaintiff's request for even
more pages because the Court had already granted her request
to exceed page limitations for this response once before.
(Id. (citing ECF No. 106)).
on August 27, 2019, the Court denied Plaintiff's request
for extra time to file her instant motion for reconsideration
under Federal Rules of Civil Procedure (“FRCP”)
59 and 60 because the FRCP expressly forbids such extensions.
(ECF No. 132 at 2 (citing Fed.R.Civ.P. 6(b)(2)). Next, the
Court granted Plaintiff's request for more pages, in
part, by permitting ten additional pages for her motion.
addition to the five orders cited by Plaintiff's motion,
the Court also granted requests by Plaintiff to change
hearing dates, permit more time for briefing, withdraw
erroneous filings, and file extra pages on other occasions.
(See, e.g., ECF Nos. 63 at 7, 85 at 5, 132 at 2, 143
Plaintiff's Allegations of Other Procedural Bias
raises several other arguments establishing bias. For
example, Plaintiff contends that the Court unfairly denied
her motion for reconsideration of a denial to change venue
because it relied on Plaintiff's failure to comply with
the Local Rules. (ECF No. 142-1 at 2-3.) But, the Court's
order denied Plaintiff's motion on two bases. (ECF No.
141.) First, Plaintiff failed to seek a hearing date for her
motion per Local Rule 7.1(b). (Id. at 2.) Second,
Plaintiff did not remedy the faults of her original motion,
thereby failing to meet the legal standard for
reconsideration. (Id. at 3.)
further alleges that the court only permitted Plaintiff the
opportunity to amend her complaint once, and that she was not
permitted to file a “third amended complaint”
because of a “mere technicality.” (ECF No. 142-1
at 4-5.) Plaintiff, in fact, amended her complaint twice.
(ECF Nos. 1, 3, 86.) Addressing Plaintiff's motion for
leave to file a third amended complaint, (ECF No. 96), the
Court denied the motion on two bases: (1) that Plaintiff did
not explain why an amended pleading was justified under FRCP
15(a) and (2) that Plaintiff failed to attach a draft
pleading as required by Local Rule 15.1(b) to show her
proposed amendments. (ECF No. 106 at 6-9.)
addition, Plaintiff accuses the Court of unfairly permitting
the Board of Directors of Sorrento Therapeutics to
retroactively join the motions to dismiss the FAC. (ECF No.
142-1 at 5.) When the Board retroactively joined the motion
to dismiss, it was not yet fully briefed and the Court had
yet to rule on it. (ECF No. 57.)
also claims she was unfairly denied a default judgment
against the Board of Directors of Sorrento Therapeutics on
another “mere technicality.” (ECF No. 142-1 at
5-6.) The Court denied Plaintiff's motion for default
because Plaintiff did not seek an entry of default from the
clerk as required by the Ninth Circuit. (ECF Nos. 63, 67.)
Plaintiff contends that the Court's “lack of fair
treatment” can be gleaned from a series of issues
related to Plaintiff's docketing or calls to chambers.
(ECF No. 142-1 at 6.) Plaintiff opines that, of the
twenty-seven (27) orders issued in this matter, a couple were
not timely docketed. (Id. at 6-9.) Plaintiff also
notes having some difficulty reaching Chambers by phone on a