United States District Court, E.D. California
ORDER (ECF NO. 48.)
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
before the court is pro se plaintiff Prakash Narayan's
motion to disqualify the undersigned. (ECF No. 48.) Plaintiff
argues that by misapplying the Federal Rules of Civil
Procedure the court became an “accessory after the
fact.” (Id. at 3.) Because plaintiff's
argument is premised on a misunderstanding of the Federal
Rules regarding waiver and timing to file responsive
pleadings, the court addresses those issues in some depth.
For the reasons set forth below, plaintiff's motion is
filed his original complaint and request to proceed in forma
pauperis on March 14, 2019. The court, pursuant to 28 U.S.C.
§ 1915, granted plaintiff's request to proceed in
forma pauperis but dismissed his complaint for failure to
state a claim on March 19, 2019. (ECF No. 4.) However,
plaintiff was given the opportunity to file a first amended
complaint and address the deficiencies noted by the court.
April 8, 2019, Wells Fargo filed a motion to dismiss, which
was subsequently denied as premature on April 9, 2019. (ECF
Nos. 6, 9.)
30, 2019, plaintiff filed the operative First Amended
Complaint. (ECF No. 12.)
27, 2019, the court screened plaintiff's complaint and
found that, “Based on the limited record in this
matter, the court cannot conclude at this time that
plaintiff's action is frivolous, that the first amended
complaint fails to state a claim upon which relief can be
granted, or that plaintiff seeks monetary relief from an
immune defendant.” (ECF No. 13 at 2.) The court ordered
plaintiff to file documents with the U.S. Marshal to
effectuate service. (Id.) The court's order
additionally permitted defendants to waive service by
returning a signed waiver to the U.S. Marshal. (Id.
on the record before the court, to date, it appears that
plaintiff never provided the U.S. Marshal with the required
documents,  and no defendant has been served.
(See ECF No. 22 (Clerk's denial of
plaintiff's entry of default because “Proof of
Service of Summons by USM has not been filed”).)
“to avoid further delays, ” Wells Fargo filed a
waiver of service of summons on August 15, 2019. (ECF Nos.
28, 39 at 3.) Pursuant to Federal Rule of Civil Procedure
12(a)(1)(A)(ii) Wells Fargo was provided 60 days to file a
responsive pleading after the request for waiver was
sent. Wells Fargo's responsive pleading was
therefore due October 15, 2019.On October 15, 2019, Wells Fargo
timely filed its motion to dismiss currently pending before
the court. (ECF No. 29.)
Plaintiff's Motion to Disqualify
December 23, 2019, plaintiff filed the present motion titled:
“Motion Under 28 U.S.C. § 455a - Peremptory
Disqualification of Judge Delaney Request.” (ECF No.
48.) Plaintiff's motion does not set out reasons for the
undersigned's recusal beyond generally objecting to the
court's comments at the hearing on Wells Fargo's
motion to dismiss.
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.” 28 U.S.C. §
144. “Any justice, judge, or magistrate judge of the
United States shall disqualify h[er]self in any proceeding in
which h[er] impartiality might reasonably be
questioned.” 28 U.S.C. § 455(a). Under both
recusal statutes, the substantive standard is “whether
a reasonable person with knowledge of all the facts would
conclude that the judge's impartiality might ...