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Siegler v. Sorrento Therapeutics, Inc.

United States District Court, S.D. California

December 17, 2019

SARA ELIZABETH SIEGLER, et al. Plaintiffs,
SORRENTO THERAPEUTICS, INC., et al., Defendants.



         On 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.)

         On 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. 150.)

         The 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.

         I. Motion for Recusal

         As a 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.

         A. Legal Standard

         A judge “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. § 445(a)).

         For the “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).

         B. Allegations of Bias & Relevant Background

         i. Plaintiff's Requests for Extensions

         Plaintiff contends that the Court's denials of her requests for additional pages or filing extensions, despite “being a learning disabled[1] 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, 132)).

         First, 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.)

         Second, 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.)

         Third, 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.)

         Fourth, 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)).

         Fifth, 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. (Id.)

         In 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 at 3.)

         ii. Plaintiff's Allegations of Other Procedural Bias

         Plaintiff 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.)

         Plaintiff 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.)

         In 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.)

         Plaintiff 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.)

         Lastly, 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 handful ...

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