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Giustino v. Smartecarte Company, Inc.

United States District Court, D. Hawaii

March 22, 2018

SMARTECARTE COMPANY, INC.; JEFF CHEN, Manager; CARL ZUETERMEISTER, Assistant Manager; JEFF CHAN, Assistant General Manager; JOHN DOES 1-5, Defendants.


          Kevin S.C. Chang United States Magistrate Judge.

         Before the Court is pro se Plaintiff Marco Di Giustino's (“Plaintiff”) Motion to Recuse, [1] filed January 26, 2018. The Court finds this matter suitable for disposition without a hearing pursuant to Rule 7.2(d) of the Local Rules of Practice for the U.S. District Court for the District of Hawaii.

          After careful consideration of the parties' submissions and the applicable law, the Court HEREBY DENIES the Motion for the reasons set forth below.


         On April 22, 2016, Plaintiff initiated this action.

         On November 1, 2017, the Court held a settlement conference. The parties did not reach an agreement.

         At the December 15, 2017 hearing on Defendants Smarte Carte, Inc., Jie “Jeff” Chen, Carl Zuttermeister, and Ho Yeung “Gary” Chan's[2] (collectively “Defendants”) Motion to Continue Trial Date and Extend Rule 16 Scheduling Order Deadlines, the Court held a discussion regarding discovery. The Court extended Plaintiff's deadline to respond to discovery requests until January 16, 2018, and directed the parties to schedule Plaintiff's deposition in mid-February 2018.

         On January 26, 2018, Plaintiff filed the present Motion. On January 29, 2018, the Court issued the following Entering Order:

On 1/26/18, pro se Plaintiff filed a document entitled “Demand for Motion to Recuse.” Although Plaintiff references sections 144 and 455 of Title 28 of the U.S. Code, § 144 requires submission of “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.” 28 U.S.C. § 144. The declaration must “state the facts and the reasons for the belief that bias or prejudice exists.” Id. Plaintiff is ORDERED to clarify whether he is seeking recusal pursuant to § 144 by 2/12/18. If so, he must comply with § 144's requirements and certify that his Motion is brought in good faith.
If Plaintiff fails to do so, this Court, as opposed to the district judge, will apply § 455 and determine whether recusal is warranted.

Doc. No. 40. Plaintiff did not respond and did not comply with 28 U.S.C. § 144.


         Plaintiff seeks recusal of the undersigned. Plaintiff sets forth a number of accusations under headings that misrepresent and reflect his fundamental misunderstanding of these proceedings. There being significant incongruity between Plaintiff's headings and the allegations thereunder, the Court focuses solely on the factual charges asserted by Plaintiff.[3]

         A. 28 U.S.C. § 455

         Insofar as Plaintiff failed to comply with § 144, the Court applies § 455. Section 455(a) requires a judge to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). Disqualification is also required under § 455(b) where a judge “has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding” and “[w]here in private practice [the judge] served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it.”[4] 28 U.S.C. § 455(b)(1)-(2).

         Motions to recuse are “addressed to, and must be decided by, the very judge whose impartiality is being questioned.” In re Bernard, 31 F.3d 842, 843 (9th Cir. 1994) (citations omitted). “[A] judge has ‘as strong a duty to sit when there is no legitimate reason to recuse as he does to recuse when the law and facts require.'” Clemens v. U.S. Dist. Court for Cent. Dist. of Cal., 428 F.3d 1175, 1179 (9th Cir. 2005) (citation omitted).

         Motions to disqualify must be timely filed. Davies v. C.I.R., 68 F.3d 1129, 1131 (9th Cir. 1995); Preston v. United States, 923 F.2d 731, 733 (9th Cir. 1991) (“[A] motion to disqualify or recuse a judge under . . . § 455 must be made in a timely fashion.”). That is, “recusal motions should be filed with reasonable promptness after the ground for such a motion is ascertained.” Preston, 923 F.2d at 733. In the absence of such a requirement, there would be “increased instances of wasted judicial time and resources and a heightened risk that litigants would use recusal motions for strategic purposes.” Id. Allowing untimely recusal motions “would encourage parties to withhold recusal motions, pending a resolution of their dispute on the merits, and then if necessary invoke section 455 in order to get a second bite at the apple.” E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1295 (9th Cir. 1992).

         1. Section 455(a)

         The Court employs an objective test in analyzing disqualification under § 455(a), which asks whether “‘a reasonable person with knowledge of all the facts would conclude that [the judge's] impartiality might reasonably be questioned.'” Perry v. Schwarzenegger, 630 F.3d 909, 911 (9th Cir. 2011) (citation omitted); Clemens, 428 F.3d at 1178. Central to that inquiry is “whether a reasonable person perceives a significant risk that the judge will resolve the case on a basis other than the merits.” Clemens, 428 F.3d at 1178. In this context, the “reasonable person” means a “‘well-informed, thoughtful observer, ' as opposed to a ‘hypersensitive or unduly suspicious person.'” Id. (citation omitted). A reasonable third-party observer understands all of the relevant facts and ...

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