NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 28 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
FRANK KONARSKI, DBA FGPJ No. 16-15476 Apartments & Development, et al. D.C. No. 4:14-cv-02264-JGZ Plaintiffs-Appellants,
v. MEMORANDUM* CITY OF TUCSON, et al.
Defendants-Appellees.
Appeal from the United States District Court for the District of Arizona Jennifer G. Zipps, District Judge, Presiding
Submitted October 20, 2017** San Francisco, California
Before: W. FLETCHER and TALLMAN, Circuit Judges, and HOYT,*** District Judge.
* The disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Kenneth M. Hoyt, United States District Judge for the Southern District of Texas, sitting by designation. The plaintiffs, Frank, Gabriela, Patricia, John Frank and Frank Edward
Konarski (“the Konarskis”) appeal the dismissal of their lawsuit for failure to state
a claim, pursuant to Fed. R. Civ. P. 12(b)(6). The Konarskis asserted causes of
action pursuant to the Sherman Act, 15 U.S.C. § 1 and 42 U.S.C. § 1983, for
deprivation of due process, equal protection, Commerce Clause rights, and state
law claims. In three orders, the district court denied the Konarskis’ motion for
recusal and stay, designated the Konarskis as vexatious litigants and dismissed the
Konarskis’ suit. We have jurisdiction pursuant to 28 U.S.C. § 1291.
The Konarskis, residents of the City of Tucson, own and operate FGPJ
Apartments and FGPJ Development, businesses engaged in rental housing and
housing development. Over a period of eighteen years, they have filed a plethora
of lawsuits against the City of Tucson concerning their housing business. In this
suit, the Konarskis allege that the City of Tucson and certain City employees
(collectively “the City”) lured tenants away from their properties by providing
them with Section 8 housing voucher applications that, if approved, could be
utilized at competitor Section 8 rental properties. (The Konarksis are barred from
acting as Section 8 landlords because the Arizona Attorney General found that they
had created a hostile and discriminatory environment for Hispanic tenants.)
The district judge did not err by not recusing herself in this suit. We review
a district judge’s order declining to recuse under an abuse of discretion standard.
2 16-15476 See United States v. Monaco, 852 F.2d 1143, 1147 (9th Cir. 1988), cert. denied,
488 U.S. 1040 (1989).
“Any justice, judge, or magistrate judge of the United States shall disqualify
[herself] in any proceeding in which [her] impartiality might reasonably be
questioned.” 28 U.S.C. § 455(a). Furthermore, a judge “shall also disqualify
[herself] [w]here [s]he has . . . personal knowledge of disputed evidentiary facts
concerning the proceeding.” 28 U.S.C. § 455(b). Because a judge is presumed to
be impartial, the Konarskis bear the burden of showing that the judge lacked
impartiality. See Perry v. Schwarzenegger, 790 F. Supp. 2d 1119, 1129 (9th Cir.
2011) (quoting Torres v. Chrysler Fin. Co., No. C 07-00915 JW, 2007 WL
3165665, at *1 (N.D. Cal. Oct. 25, 2007)).
The Konarskis’ motion for recusal charges that, while representing the
United States Department of Housing and Urban Development (“HUD”), in her
capacity as an Assistant United States Attorney, the district judge held an
adversarial position in a suit involving the Konarskis. The Konarskis maintain that
the judge’s prior adversarial history, coupled with her prior recusals in other
lawsuits involving them, warrants recusal in the present suit.
However,beyond mere recitals, there are no pleadings or evidence of a
direct, personal, or substantial connection between the Konarskis and the trial
judge. In fact, the suit referenced occurred several years ago and concerned a
3 16-15476 matter unrelated to this suit. See United States v. Silver, 245 F.3d 1075, 1079–80
(9th Cir. 2001) (recusal not necessary where district court judge had been a United
States Attorney while defendant was being investigated regarding an unrelated
offense); Gravenmier v. United States, 469 F.2d 66, 67 (9th Cir. 1972) (holding
that a judge, who as United States Attorney was of counsel when a defendant was
tried and convicted of a charge, is not disqualified from presiding at the
prosecution of the same defendant for an unrelated offense).
Moreover, the district judge’s appearance was limited to a pre-trial matter
that resulted in the dismissal of a HUD employee sued solely in her capacity as a
HUD employee. The Konarskis have not otherwise tendered any allegations
suggesting any impropriety on the part of the district judge, and “[t]he Supreme
Court has recognized only a few circumstances in which an appearance of bias
necessitates recusal to ensure due process of law.” In re Complaint of Judicial
Misconduct, 816 F.3d 1266, 1267 (9th Cir. 2016) (emphasis added) (quoting
Greenway v. Schriro, 653 F.3d 790, 806 (9th Cir. 2011)). Accordingly, the
Konarskis have not established a factual or legal basis for recusal. The district
court did not err by designating the Konarskis as vexatious litigants. We review
this claim under an abuse of discretion standard. See De Long v. Hennessey, 912
F.2d 1144, 1146 (9th Cir. 1990). The district judge’s finding that the Konarskis
are vexatious litigants is based on their lengthy litigation record concerning their
4 16-15476 rental housing business and their relationship with the City and federal
government.
The Konarskis maintain that they were not given adequate notice and an
opportunity to be heard on the City’s vexatious litigant motion. However, when
offered an opportunity for a hearing in open court on the matter, the Konarskis
declined, preferring instead to file a written response. The Konarskis now take
issue with the district court’s independent examination of their litigation record.
After an examination of the papers before her, the district judge applied the
Molski factors in reaching her decision. See Molski v. Evergreen Dynasty Corp.,
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 28 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
FRANK KONARSKI, DBA FGPJ No. 16-15476 Apartments & Development, et al. D.C. No. 4:14-cv-02264-JGZ Plaintiffs-Appellants,
v. MEMORANDUM* CITY OF TUCSON, et al.
Defendants-Appellees.
Appeal from the United States District Court for the District of Arizona Jennifer G. Zipps, District Judge, Presiding
Submitted October 20, 2017** San Francisco, California
Before: W. FLETCHER and TALLMAN, Circuit Judges, and HOYT,*** District Judge.
* The disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Kenneth M. Hoyt, United States District Judge for the Southern District of Texas, sitting by designation. The plaintiffs, Frank, Gabriela, Patricia, John Frank and Frank Edward
Konarski (“the Konarskis”) appeal the dismissal of their lawsuit for failure to state
a claim, pursuant to Fed. R. Civ. P. 12(b)(6). The Konarskis asserted causes of
action pursuant to the Sherman Act, 15 U.S.C. § 1 and 42 U.S.C. § 1983, for
deprivation of due process, equal protection, Commerce Clause rights, and state
law claims. In three orders, the district court denied the Konarskis’ motion for
recusal and stay, designated the Konarskis as vexatious litigants and dismissed the
Konarskis’ suit. We have jurisdiction pursuant to 28 U.S.C. § 1291.
The Konarskis, residents of the City of Tucson, own and operate FGPJ
Apartments and FGPJ Development, businesses engaged in rental housing and
housing development. Over a period of eighteen years, they have filed a plethora
of lawsuits against the City of Tucson concerning their housing business. In this
suit, the Konarskis allege that the City of Tucson and certain City employees
(collectively “the City”) lured tenants away from their properties by providing
them with Section 8 housing voucher applications that, if approved, could be
utilized at competitor Section 8 rental properties. (The Konarksis are barred from
acting as Section 8 landlords because the Arizona Attorney General found that they
had created a hostile and discriminatory environment for Hispanic tenants.)
The district judge did not err by not recusing herself in this suit. We review
a district judge’s order declining to recuse under an abuse of discretion standard.
2 16-15476 See United States v. Monaco, 852 F.2d 1143, 1147 (9th Cir. 1988), cert. denied,
488 U.S. 1040 (1989).
“Any justice, judge, or magistrate judge of the United States shall disqualify
[herself] in any proceeding in which [her] impartiality might reasonably be
questioned.” 28 U.S.C. § 455(a). Furthermore, a judge “shall also disqualify
[herself] [w]here [s]he has . . . personal knowledge of disputed evidentiary facts
concerning the proceeding.” 28 U.S.C. § 455(b). Because a judge is presumed to
be impartial, the Konarskis bear the burden of showing that the judge lacked
impartiality. See Perry v. Schwarzenegger, 790 F. Supp. 2d 1119, 1129 (9th Cir.
2011) (quoting Torres v. Chrysler Fin. Co., No. C 07-00915 JW, 2007 WL
3165665, at *1 (N.D. Cal. Oct. 25, 2007)).
The Konarskis’ motion for recusal charges that, while representing the
United States Department of Housing and Urban Development (“HUD”), in her
capacity as an Assistant United States Attorney, the district judge held an
adversarial position in a suit involving the Konarskis. The Konarskis maintain that
the judge’s prior adversarial history, coupled with her prior recusals in other
lawsuits involving them, warrants recusal in the present suit.
However,beyond mere recitals, there are no pleadings or evidence of a
direct, personal, or substantial connection between the Konarskis and the trial
judge. In fact, the suit referenced occurred several years ago and concerned a
3 16-15476 matter unrelated to this suit. See United States v. Silver, 245 F.3d 1075, 1079–80
(9th Cir. 2001) (recusal not necessary where district court judge had been a United
States Attorney while defendant was being investigated regarding an unrelated
offense); Gravenmier v. United States, 469 F.2d 66, 67 (9th Cir. 1972) (holding
that a judge, who as United States Attorney was of counsel when a defendant was
tried and convicted of a charge, is not disqualified from presiding at the
prosecution of the same defendant for an unrelated offense).
Moreover, the district judge’s appearance was limited to a pre-trial matter
that resulted in the dismissal of a HUD employee sued solely in her capacity as a
HUD employee. The Konarskis have not otherwise tendered any allegations
suggesting any impropriety on the part of the district judge, and “[t]he Supreme
Court has recognized only a few circumstances in which an appearance of bias
necessitates recusal to ensure due process of law.” In re Complaint of Judicial
Misconduct, 816 F.3d 1266, 1267 (9th Cir. 2016) (emphasis added) (quoting
Greenway v. Schriro, 653 F.3d 790, 806 (9th Cir. 2011)). Accordingly, the
Konarskis have not established a factual or legal basis for recusal. The district
court did not err by designating the Konarskis as vexatious litigants. We review
this claim under an abuse of discretion standard. See De Long v. Hennessey, 912
F.2d 1144, 1146 (9th Cir. 1990). The district judge’s finding that the Konarskis
are vexatious litigants is based on their lengthy litigation record concerning their
4 16-15476 rental housing business and their relationship with the City and federal
government.
The Konarskis maintain that they were not given adequate notice and an
opportunity to be heard on the City’s vexatious litigant motion. However, when
offered an opportunity for a hearing in open court on the matter, the Konarskis
declined, preferring instead to file a written response. The Konarskis now take
issue with the district court’s independent examination of their litigation record.
After an examination of the papers before her, the district judge applied the
Molski factors in reaching her decision. See Molski v. Evergreen Dynasty Corp.,
500 F.3d 1047, 1057–58 (9th Cir. 2007). Molski requires the trial judge to provide
the parties an opportunity to be heard, to develop a record subject to review, to
make substantive findings concerning the accused party’s litigation history and, if
necessary, to fashion an order “narrowly tailored to closely fit the specific vice
encountered.” Id. The district court provided the Konarskis ample notice and an
opportunity to be heard, and it compiled an extensive record based on its own
independent examination of “the dockets, pleadings and motions in every case
filed by [the Konarskis]” in the District of Arizona before adjudicating the matter.
Moreover, the order entered is narrowly tailored, as it does not entirely bar the
Konarskis from filing suit.
5 16-15476 Lastly, we address the Konarskis’ claim that the district court erred by
dismissing their suit. We review a dismissal for failure to state a claim de novo.
Lloyd v. CVB Fin. Corp., 811 F.3d 1200, 1205 (9th Cir. 2016). We conclude that
the district court did not err by dismissing the Konarskis’ Sherman Act and § 1983
claims, or by choosing not to exercise supplemental jurisdiction over the
Konarskis’ remaining state law claims.
The Konarskis’ Sherman Act claim fails for lack of factual support. To
establish a claim under § 1 of the Sherman Act, the Konarskis must plead
“evidentiary facts which, if true, will prove: (1) a contract, combination or
conspiracy among two or more persons or distinct business entities; (2) by which
the persons or entities intended to harm or restrain trade or commerce among the
several States, or with foreign nations; (3) which actually injures competition.”
Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1047 (9th Cir. 2008). They must show
that “the activities in question, although conducted within a state, have a
substantial effect on interstate commerce.” Freeman v. San Diego Ass’n of
Realtors, 322 F.3d 1133, 1143–44 (9th Cir. 2003) (quotation omitted).
The Konarskis’ pleadings fail to indicate how the City’s purely local
activities are related to interstate commerce. The City’s alleged interference with
their tenants does not, without more, have any impact or effect on interstate
6 16-15476 commerce, let alone a substantial effect. See United States v. ORS, Inc., 997 F.2d
628, 629 (9th Cir. 1993); 15 U.S.C. § 1.
The Konarskis also seek relief pursuant to § 1983, alleging that the City
violated their right to engage in interstate commerce, their substantive due process
rights and their right to equal protection.
The Konarskis’ Commerce Clause claim fails for lack of factual support.
The Konarskis failed to explain how the City’s decision to provide Section 8
qualification packets to two of Konarskis’ tenants favored in-state economic
interests over out-of-state interests, or incidentally burdened interstate transactions.
See Kleenwell Biohazard Waste and Gen. Ecology Consultants, Inc. v. Nelson, 48
F.3d 391, 395 (9th Cir. 1995).
A substantive due process claim must assert “a government deprivation of
life, liberty or property,” coupled with “conscience shocking behavior” by the
government. Brittain v. Hansen, 451 F.3d 982, 991 (9th Cir. 2006) (internal
citations omitted). Here, the Konarskis sued the City for engaging in activities that
are authorized by law: qualifying persons for Section 8 housing. The Konarskis’
pleadings do not show how the City’s conduct deprived them of life, liberty, or
property, or explain how its behavior could be considered “conscience-shocking.”
The Konarskis’ equal protection claim is likewise void of any factual
support. The Konarskis’ pleadings do not support the view that they were
7 16-15476 subjected to disparate treatment or treatment that is devoid of any rational basis, as
required to support a “class of one” equal protection claim. See Vill. of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000). To claim that other similarly-
situated property owners were treated differently or more favorably than they,
without more, is conclusory and unsupported by the facts as pled.
Finally, upon dismissal of the Konarskis’ claims arising under federal law,
the district court was free to decline to exercise supplemental jurisdiction over the
Konarskis’ state law claims. See 28 U.S.C. § 1367(c)(3). Accordingly, the district
court’s decision is AFFIRMED, with costs awarded to the appellees.
8 16-15476