Austin v. ABC Legal

Opinion

1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 GEORGE JARVIS AUSTIN, Case No. 21-cv-09076-SI

6 Plaintiff, ORDER ON PENDING MOTIONS 7 v. Re: Dkt. Nos. 15, 17, 20, 22, 23 8 ABC LEGAL, 9 Defendant.

10 11 Before the Court are various motions filed by plaintiff, George Jarvis Austin: (1) a motion 12 for default judgment by the court, Dkt. No. 15, (2) motions for recusal and/or reassignment of case, 13 Dkt. Nos. 17, 22, 23 (identical filings), and (3) a motion for leave to file an amended complaint, 14 Dkt. No. 20. For the reasons discussed below, the Court will DENY the motion for default judgment 15 and the motions for recusal and/or reassignment. The motion for leave to amend is moot; plaintiff 16 may file an amended complaint by January 5, 2022 as a “matter of course.” The Court VACATES 17 the hearing set for December 17, 2021 per Local Rule 7-1(b), finding oral argument unnecessary for 18 resolution the issues raised in plaintiff’s motions, and in any event, plaintiff’s scheduling of the 19 hearing fails to abide by Local Rule 7-2(a). 20 21 1. Default Judgment 22 Plaintiff’s motion for default judgment prospectively asks the Court to grant default 23 judgment on December 30, 2021 at 2:00 pm if defendants do not respond by that date. Dkt. No. 15. 24 The motion for default is premature. A party cannot move for default in anticipation of a future 25 failure to respond. See Fed. R. Civ. P. 55(a) (clerk’s entry of default appropriate when “a party 26 against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend…”) 27 (emphasis added). Further, defendants filed a responsive motion to dismiss on December 15, 2021. 1 2. Recusal and/or Reassignment 2 Plaintiff’s repeated motions for recusal and/or reassignment are based on alleged “docketed 3 conflict of interest, by Judge SI, but refusal to share that information when Plaintiff requested, on 4 the record, and docket, and subsequent Judicial Misconduct in ongoing case in Ninth Circuit.” Dkt. 5 Nos. 17, 22, 23. The “judicial misconduct” plaintiff refers to is detailed in an email he delivered to 6 the Ninth Circuit. There, plaintiff alleges the undersigned Judge has a conflict of interest, “ignored” 7 plaintiff’s motions, and “ignored an order from the Ninth Circuit…but attempted to pass judgment 8 on case before issue was resolved.” Dkt. No. 17-1. Plaintiff’s claims are without merit. 9 Plaintiff’s belief that the undersigned Judge has a conflict-of-interest stems from an Order 10 of Recusal filed at Dkt. No. 7 in the case Austin v. Kemper, 21-cv-3208-SI on May 12, 2021. But as 11 the ECF caption and the document itself makes clear,1 the Order of Recusal was intended to be filed 12 in Oracle v. Envisage Technologies, 21-cv-03540 (May 12, 2021), a different case. The filing in 13 plaintiff’s Austin v. Kemper case was in error and thus has no bearing on plaintiff’s motion. 14 Plaintiff’s assertions that the Court “ignored” his motions and the Ninth Circuit are similarly 15 without merit. The Court presumes plaintiff refers to this Court’s denial of plaintiff’s motion for a 16 five-month extension to file an opposition to a motion to dismiss in Austin v. Kemper, 21-cv-3208- 17 SI, Dkt. No. 90 (November 16, 2021). In that matter, the Court considered the arguments raised in 18 plaintiff’s motion and promptly exercised its discretion in denying the motion. 19 Even if an order denying a litigant’s request for an extension of time could properly be 20 presented to the Ninth Circuit as interlocutory appeal (it generally may not), a party must “obtain 21 certification from both the district court and the court of appeals to bring an interlocutory appeal.” 22 City of L.A. v. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001). Plaintiff failed to do so 23 here. More importantly, interlocutory appeals “shall not stay proceedings in the district court unless 24 the district judge or the Court of Appeals or a judge thereof shall so order.” 28 U.S.C. § 1292(b) 25 (emphasis added). The Court’s judgment in Austin v. Kemper was proper. Accordingly, plaintiff’s 26 motions for recusal and/or reassignment of case are DENIED. 27 1 3. Leave to Amend 2 Plaintiff has not previously amended his complaint in this case. Accordingly, plaintiff may 3 amend “as a matter of course” within “21 days after service of a motion under Rule 12(b), (e), or 4 (f), whichever is earlier.” Fed. R. Civ. P. 15(a)(1)(B). Defendants filed a motion to dismiss pursuant 5 to Rule 12(b)(6) on December 15, 2021. Dkt. No 18. Therefore, plaintiff may file a first amended 6 complaint as a matter of course by January 5, 2022. Fed. R. Civ. P. 6(a)(1) (on counting time). The 7 motion is moot. 8 9 4. Future Hearings 10 In filing the pending motions with the Court, plaintiff contravened Local Rule 7-2(a) on 11 four separate occasions” by attempting to schedule hearings “less than 35 days after filing of the 12 || motion.” The relevant Rule provides:

13 Time. Except as otherwise ordered or permitted by the assigned Judge or these Local Rules, . : . . . and except for motions made during the course of a trial or hearing, all motions must be S filed, served and noticed in writing on the motion calendar of the assigned Judge for 15 hearing not less than 35 days after filing of the motion. Fed. R. Civ. P. 6(d), which extends Sam . . . eqs deadlines that are tied to service (as opposed to filing), does not apply and thus does not a 16 extend this deadline.

2 17 || L-R7-2(a). Plaintiffis hereby ORDERED to consult and follow the Local Rules in all future filings

18 and proceedings before this Court. 19 IT IS SO ORDERED. 20 Dated: December 17, 2021 Sate WU tee 21 9 SUSAN ILLSTON United States District Judge 23 24 25 26 07 Specifically: (1) Motion for default judgment, filed 12/12/2021 and hearing set for 12/30/2021. Dkt. No. 15; (2) First motion to reassign case, filed 12/15/2021 and hearing set for 12/17/2021. Dkt. No. 17; 28 (3) First motion for recusal and reassignment, filed 12/16/2021 and hearing set for 12/17/2021. Dkt. No. 22; (4) First motion to disqualify, filed 12/16/2021 and hearing set for 12/17/2021. Dkt. No. 23.