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Narayan v. County of Sacramento

United States District Court, E.D. California

January 3, 2020

PRAKASH NARAYAN, Plaintiff,
v.
COUNTY OF SACRAMENTO, et al., Defendants.

          ORDER (ECF NO. 48.)

          CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Presently 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 denied.[1]

         II. Procedural History

         Plaintiff 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.

         On April 8, 2019, Wells Fargo filed a motion to dismiss, which was subsequently denied as premature on April 9, 2019. (ECF Nos. 6, 9.)

         On May 30, 2019, plaintiff filed the operative First Amended Complaint. (ECF No. 12.)

         On June 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. ¶ 7.)

         Based on the record before the court, to date, it appears that plaintiff never provided the U.S. Marshal with the required documents, [2] 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”).)

         Nevertheless, “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.[3] Wells Fargo's responsive pleading was therefore due October 15, 2019.[4]On October 15, 2019, Wells Fargo timely filed its motion to dismiss currently pending before the court. (ECF No. 29.)

         III. Plaintiff's Motion to Disqualify

         On 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.

         IV. Legal Standard

         “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.” 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 ...


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