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Barker v. Gottlieb

United States District Court, D. Hawaii

December 10, 2014

CHARLES BARKER III, Plaintiff,
v.
JOSHUA L. GOTTLIEB, JONATHAN DUBOWSKY, DONALD BORNEMAN, CHARLES HALL, SCOTT HARRIS, THE VALUE EXCHANGE ADVISORS, also known as/doing business as TVXA, GEMCO-PACIFIC ENERGY LLC, aka GPE and ROES 1-25, Defendants

Charles Barker, III, mortgagerecon@gmail.com, Plaintiff, Pro se, Hilo, HI.

For Joshua L. Gottlieb, Jonathan Dubowsky, Donald Borneman, Charles Hall, Scott Harris, Gemco-Pacific Energy LLC, also known as GPE, The Value Exchange Advisors, also known as TVXA, doing business as TVX Advisors, Defendants: Andrew George Odell, William K. Shultz, LEAD ATTORNEYS, Cades Schutte, Honolulu, HI.

ORDER DENYING PLAINTIFF'S MOTION TO RECUSE

Leslie E. Kobayashi, United States District Judge.

Before the Court is pro se Plaintiff Charles Barker III's (" Plaintiff") motion seeking the recusal of this Court from the consideration of his pending motion for reconsideration, filed on November 5, 2014. [Dkt. no. 104.][1] Defendants Joshua L. Gottlieb, Jonathan Dubowsky, Donald Borneman, Charles Hall, Scott Harris, the Value Exchange Advisors, and GEMCo-Pacific Energy LLC (collectively

BACKGROUND

Plaintiff filed his original, fourteen-count, Complaint on May 15, 2013. On October 16, 2013, this Court issued its Order Granting in Part and Denying in Part Defendants' Motion for Judgment on the Pleadings (" 10/16/13 Order"). [Dkt. nos. 19 (motion), 44 (10/16/13 Order).[2] The 10/16/13 Order dismissed all of Plaintiff's claims without prejudice. 978 F.Supp.2d 1168, 2013 WL 5675534, at *8.

Plaintiff timely filed his Second Amended Complaint on January 16, 2014.[3] [Dkt. no. 53.] The first eleven counts and the thirteenth through fifteenth counts of the Second Amended Complaint were identical to the counts in the original Complaint. The twelfth count of the Second Amended Complaint was a new claim. On May 28, 2014, this Court issued its Order Granting in Part and Denying in Part Defendants' Motion to Dismiss Second Amended Complaint (" 5/28/14 Order"). [Dkt. nos. 59 (motion), 88 (5/28/14 Order).[4] In the 5/28/14 Order, this Court:

-dismissed with prejudice the portion of Count I alleging fraud regarding the future availability of financing, and Counts II, III, IV, V, VIII, IX, X, XI, XII, and XIII; 2014 WL 2215920, at *14; and

-dismissed without prejudice the portion of Count I alleging fraudulent alteration of agreements, Counts VI, VII, XIV, and XV; id.

Plaintiff filed his Third Amended Complaint on June 27, 2014. [Dkt. no. 89.] The first fifteen claims in the Third Amended Complaint (" Amended Count I" through " Amended Count XV") allege the same claims as Counts I through XV of the Second Amended Complaint. Plaintiff also added two new claims - " Evidence Suppression & Obstruction of Justice" (" Amended Count XVI") and a claim alleging perjury (" Amended Count XVII"). On October 24, 2014, this Court filed its Order Granting Defendants' Motion to Dismiss Plaintiff's Third Amended Complaint (" 10/24/14 Order"). [Dkt. nos. 94 (motion), 102 (10/24/14 Order).[5] In the 10/24/14 Order, this Court:

-dismissed with prejudice the portion of Amended Count I alleging fraud regarding the future availability of financing; and dismissed with prejudice Amended Counts II, III, IV, V, VIII, IX, X, XI, XII, and XIII; because this Court dismissed those claims with prejudice in the 5/28/14 Order; 2014 WL 5460619, at *2;

-dismissed Amended Counts XVI and XVII with prejudice because the 5/28/14 Order expressly stated that Plaintiff did not have leave to add new claims; [6] id.; and

-dismissed the remaining portion of Amended Count I, as well as Amended Counts VI, VII, XIV, and XV, with prejudice because Plaintiff failed to correct the defects that this Court identified in the 5/28/ 14 Order; id. at *3-5.

On November 5, 2014, Plaintiff filed his Motion for Reconsideration and his Motion to Recuse. In the Motion to Recuse, Plaintiff argues that this Court should recuse itself, and another district judge should rule on the Motion for Reconsideration. This Court has construed Plaintiff's Motion for Recusal as a 28 U.S.C. § 455 motion.[7] [11/20/14 EO at 1.]

STANDARD

Section 455 states, in pertinent part:

(a) Any justice, judge, or magistrate judge of the United States shall disqualify [her]self in any proceeding in which [her] ...

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