United States District Court, D. Hawaii
ORDER DENYING PLAINTIFF'S MOTION TO
S.C. Chang United States Magistrate Judge.
the Court is pro se Plaintiff Marco Di
Giustino's (“Plaintiff”) Motion to Recuse,
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.
careful consideration of the parties' submissions and the
applicable law, the Court HEREBY DENIES the Motion for the
reasons set forth below.
April 22, 2016, Plaintiff initiated this action.
November 1, 2017, the Court held a settlement conference. The
parties did not reach an agreement.
December 15, 2017 hearing on Defendants Smarte Carte, Inc.,
Jie “Jeff” Chen, Carl Zuttermeister, and Ho Yeung
“Gary” Chan's (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.
January 26, 2018, Plaintiff filed the present Motion. On
January 29, 2018, the Court issued the following Entering
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.
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
28 U.S.C. § 455
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.” 28 U.S.C. §
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).
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).
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 ...