THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 ROLAND MA, CASE NO. C19-1112-JCC 10 Plaintiff, ORDER 11 v. 12 U.S. DEPARTMENT OF EDUCATION, UNIVERSITY OF SOUTHERN 13 CALIFORNIA, 14 Defendants. 15
16 This matter comes before the Court on Plaintiff’s motions to vacate order or disqualify 17 the Court, to stay this case pending appeal, and to proceed in forma pauperis on appeal (Dkt. 18 Nos. 45, 47, 49). Having thoroughly considered the motions and the relevant record, the Court 19 finds oral argument unnecessary and hereby DENIES the motions for the reasons explained 20 herein. 21 I. BACKGROUND 22 The Court set forth the facts of this case in a prior order and will not repeat them here. 23 (See Dkt. No. 15.) On February 28, 2020, the Court granted Defendant’s motion for an order to 24 show cause and ordered Plaintiff to file a response within 14 days “establishing why he should 25 not be held in contempt of this Court’s order enforcing the parties’ settlement agreement.” (Id. at 26 3.) Plaintiff did not file a response to the Court’s order. Instead, Plaintiff moved to vacate the 1 Court’s order to show cause or for the Court to recuse itself pursuant to 28 U.S.C. § 455, (Dkt. 2 No. 45), filed a notice of appeal and an emergency motion to stay pending the resolution of that 3 appeal, (Dkt. Nos. 46, 47), and filed a second motion for leave to proceed in forma pauperis, 4 (Dkt. No. 49). The Court addresses each of Plaintiff’s motions in turn. 5 II. DISCUSSION 6 A. Motion to Vacate Order or to Disqualify 7 Plaintiff asks the Court to recuse itself from this case pursuant to 28 U.S.C. § 455(a). 8 (Dkt. No. 45.) “Any justice, judge, or magistrate judge of the United States shall disqualify 9 himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. 10 § 455(a). “In determining whether a § 455(a) violation requires vacatur under Rule 60(b)(6) . . . 11 it is appropriate to consider the risk of injustice to the particular parties, the risk that the denial of 12 relief will produce injustice in other cases, and the risk of undermining the public’s confidence in 13 the judicial process.” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 848 (1988). 14 Plaintiff first argues that the Court advanced a status conference in a different case, which 15 caused Plaintiff to voluntarily dismiss that case and to file this case. (Dkt. No. 45 at 2.) The 16 decision to advance the status conference was done “in the interest of judicial economy” and 17 does not evidence any bias towards Plaintiff. See Ma v. University of Southern California, Case 18 No. Case No. 18-1778-JCC, Dkt. No. 82 (W.D. Wash. 2019); Mediterranean Enterprises, Inc. v. 19 Ssangyong Corp., 708 F.2d 1458, 1465 (9th Cir. 1983) (“The trial court possesses the inherent 20 power to control its own docket and calendar.”); Young v. City of Palm Bay, Fla., 358 F.3d 859, 21 864 (11th Cir. 2004) (“A district court must be able to exercise its managerial power to maintain 22 control over its docket.”). 23 Plaintiff next argues that the Court overlooked his assertions that he cannot file 24 documents with the Court because such filings constitute willful violations of the no-contact 25 order one of Defendant’s attorneys has against Plaintiff. (Dkt. No. 45 at 2–3.) Plaintiff’s 26 argument ignores the record. Defendant moved for an order to show cause after Plaintiff 1 repudiated the parties’ settlement agreement when Plaintiff “issued a stop payment on monies 2 owed to [Defendant] pursuant to the settlement agreement” and “maintained and started new 3 appeals of the anti-harassment orders obtained against him by individuals associated with 4 [Defendant].” (Dkt. No. 37 at 1.) Rather than responding substantively to Defendant’s motion, 5 Plaintiff filed two sets of email correspondence between him and defense counsel. (See Dkt. Nos. 6 39, 42.)1 And the Court, after reviewing the parties’ filings and the relevant record, found that 7 Defendant had carried its burden of submitting “clear and convincing evidence that Plaintiff had 8 repudiated the parties’ settlement agreement, including reversing his payment of the outstanding 9 tuition owed to Defendant.” (Dkt. No. 44 at 3.) Thus, contrary to Plaintiff’s present position, the 10 Court took Plaintiff’s claims regarding his ability to file materials into account, and the Court’s 11 decision against him does not evidence any bias of the Court. See Taylor v. Regents of Univ. of 12 California, 993 F.2d 710, 712 (9th Cir. 1993) (“[A] judge’s prior adverse ruling is not sufficient 13 cause for recusal.”).2 14 1 In its reply brief in support of its motion for an order to show cause, Defendant stated 15 that, “[Plaintiff] claimed that filing electronically would expose him to criminal prosecution. However, none of the criminal charges that have been levied against him in the past were for 16 filing documents in this or other courts.” (Dkt. No. 40 at 1.) 17 2 In his motion, Plaintiff refers to statements purportedly made by Defendant’s counsel’s husband on an online forum. (See Dkt. No. 45 at 2–3.) Plaintiff has attached what appear to be 18 screenshots of the alleged statements as exhibits to his motion. (See id. at 5–7.) Neither 19 Plaintiff’s motion nor the exhibits themselves conclusively establish the identity of the participants in the discussion, and none of the statements concern conduct by the Court that 20 would suggest a bias against Plaintiff. (See id.) 21 Plaintiff also states that he has sent a cease-and-desist letter to Defendant pursuant to the Fair Debt Collection Practices Act regarding any future collection actions and has attached an 22 “Authorization to Communicate & Negotiate” to his motion. (See id. at 3, 8.) Plaintiff’s motion and the authorization do not establish any bias of the Court toward Plaintiff. (See id.) 23 Plaintiff also asserts that he has sent a cease-and-desist letter to Defendant pursuant to the 24 Fair Debt Collection Practices Act “advis[ing] the university do not contact the Plaintiff pursuant to 15 U.S.C. §§ 1692c, and direct all debt settlement communication to the Law Office of Robert 25 S. Gitmeid & Associates, PLLC.” (Dkt. No. 45 at 3.) Plaintiff has not attached the purported cease-and-desist letter to his motion, (see id. at 8), and does not establish how the letter is 26 relevant to the instant motion. 1 In sum, Plaintiff has not established any bias of the Court that would merit recusal or 2 vacatur of the Court’s prior order. See 28 U.S.C. § 455(a); Liljeberg, 486 U.S. at 848. Therefore, 3 Plaintiff’s motion to vacate the Court’s prior order or disqualify the Court (Dkt. No. 45) is 4 DENIED. The Clerk is DIRECTED to refer Plaintiff’s motion for recusal to Chief United States 5 District Judge Ricardo S. Martinez for further consideration. See W.D. Wash. Local Civ. R. 3(g). 6 B. Motions for Leave to Proceed In Forma Pauperis and to Stay 7 Plaintiff moves to stay this case pending the outcome of his appeal of the Court’s order to 8 show cause and for leave to proceed in forma pauperis on appeal. (Dkt. Nos.
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THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 ROLAND MA, CASE NO. C19-1112-JCC 10 Plaintiff, ORDER 11 v. 12 U.S. DEPARTMENT OF EDUCATION, UNIVERSITY OF SOUTHERN 13 CALIFORNIA, 14 Defendants. 15
16 This matter comes before the Court on Plaintiff’s motions to vacate order or disqualify 17 the Court, to stay this case pending appeal, and to proceed in forma pauperis on appeal (Dkt. 18 Nos. 45, 47, 49). Having thoroughly considered the motions and the relevant record, the Court 19 finds oral argument unnecessary and hereby DENIES the motions for the reasons explained 20 herein. 21 I. BACKGROUND 22 The Court set forth the facts of this case in a prior order and will not repeat them here. 23 (See Dkt. No. 15.) On February 28, 2020, the Court granted Defendant’s motion for an order to 24 show cause and ordered Plaintiff to file a response within 14 days “establishing why he should 25 not be held in contempt of this Court’s order enforcing the parties’ settlement agreement.” (Id. at 26 3.) Plaintiff did not file a response to the Court’s order. Instead, Plaintiff moved to vacate the 1 Court’s order to show cause or for the Court to recuse itself pursuant to 28 U.S.C. § 455, (Dkt. 2 No. 45), filed a notice of appeal and an emergency motion to stay pending the resolution of that 3 appeal, (Dkt. Nos. 46, 47), and filed a second motion for leave to proceed in forma pauperis, 4 (Dkt. No. 49). The Court addresses each of Plaintiff’s motions in turn. 5 II. DISCUSSION 6 A. Motion to Vacate Order or to Disqualify 7 Plaintiff asks the Court to recuse itself from this case pursuant to 28 U.S.C. § 455(a). 8 (Dkt. No. 45.) “Any justice, judge, or magistrate judge of the United States shall disqualify 9 himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. 10 § 455(a). “In determining whether a § 455(a) violation requires vacatur under Rule 60(b)(6) . . . 11 it is appropriate to consider the risk of injustice to the particular parties, the risk that the denial of 12 relief will produce injustice in other cases, and the risk of undermining the public’s confidence in 13 the judicial process.” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 848 (1988). 14 Plaintiff first argues that the Court advanced a status conference in a different case, which 15 caused Plaintiff to voluntarily dismiss that case and to file this case. (Dkt. No. 45 at 2.) The 16 decision to advance the status conference was done “in the interest of judicial economy” and 17 does not evidence any bias towards Plaintiff. See Ma v. University of Southern California, Case 18 No. Case No. 18-1778-JCC, Dkt. No. 82 (W.D. Wash. 2019); Mediterranean Enterprises, Inc. v. 19 Ssangyong Corp., 708 F.2d 1458, 1465 (9th Cir. 1983) (“The trial court possesses the inherent 20 power to control its own docket and calendar.”); Young v. City of Palm Bay, Fla., 358 F.3d 859, 21 864 (11th Cir. 2004) (“A district court must be able to exercise its managerial power to maintain 22 control over its docket.”). 23 Plaintiff next argues that the Court overlooked his assertions that he cannot file 24 documents with the Court because such filings constitute willful violations of the no-contact 25 order one of Defendant’s attorneys has against Plaintiff. (Dkt. No. 45 at 2–3.) Plaintiff’s 26 argument ignores the record. Defendant moved for an order to show cause after Plaintiff 1 repudiated the parties’ settlement agreement when Plaintiff “issued a stop payment on monies 2 owed to [Defendant] pursuant to the settlement agreement” and “maintained and started new 3 appeals of the anti-harassment orders obtained against him by individuals associated with 4 [Defendant].” (Dkt. No. 37 at 1.) Rather than responding substantively to Defendant’s motion, 5 Plaintiff filed two sets of email correspondence between him and defense counsel. (See Dkt. Nos. 6 39, 42.)1 And the Court, after reviewing the parties’ filings and the relevant record, found that 7 Defendant had carried its burden of submitting “clear and convincing evidence that Plaintiff had 8 repudiated the parties’ settlement agreement, including reversing his payment of the outstanding 9 tuition owed to Defendant.” (Dkt. No. 44 at 3.) Thus, contrary to Plaintiff’s present position, the 10 Court took Plaintiff’s claims regarding his ability to file materials into account, and the Court’s 11 decision against him does not evidence any bias of the Court. See Taylor v. Regents of Univ. of 12 California, 993 F.2d 710, 712 (9th Cir. 1993) (“[A] judge’s prior adverse ruling is not sufficient 13 cause for recusal.”).2 14 1 In its reply brief in support of its motion for an order to show cause, Defendant stated 15 that, “[Plaintiff] claimed that filing electronically would expose him to criminal prosecution. However, none of the criminal charges that have been levied against him in the past were for 16 filing documents in this or other courts.” (Dkt. No. 40 at 1.) 17 2 In his motion, Plaintiff refers to statements purportedly made by Defendant’s counsel’s husband on an online forum. (See Dkt. No. 45 at 2–3.) Plaintiff has attached what appear to be 18 screenshots of the alleged statements as exhibits to his motion. (See id. at 5–7.) Neither 19 Plaintiff’s motion nor the exhibits themselves conclusively establish the identity of the participants in the discussion, and none of the statements concern conduct by the Court that 20 would suggest a bias against Plaintiff. (See id.) 21 Plaintiff also states that he has sent a cease-and-desist letter to Defendant pursuant to the Fair Debt Collection Practices Act regarding any future collection actions and has attached an 22 “Authorization to Communicate & Negotiate” to his motion. (See id. at 3, 8.) Plaintiff’s motion and the authorization do not establish any bias of the Court toward Plaintiff. (See id.) 23 Plaintiff also asserts that he has sent a cease-and-desist letter to Defendant pursuant to the 24 Fair Debt Collection Practices Act “advis[ing] the university do not contact the Plaintiff pursuant to 15 U.S.C. §§ 1692c, and direct all debt settlement communication to the Law Office of Robert 25 S. Gitmeid & Associates, PLLC.” (Dkt. No. 45 at 3.) Plaintiff has not attached the purported cease-and-desist letter to his motion, (see id. at 8), and does not establish how the letter is 26 relevant to the instant motion. 1 In sum, Plaintiff has not established any bias of the Court that would merit recusal or 2 vacatur of the Court’s prior order. See 28 U.S.C. § 455(a); Liljeberg, 486 U.S. at 848. Therefore, 3 Plaintiff’s motion to vacate the Court’s prior order or disqualify the Court (Dkt. No. 45) is 4 DENIED. The Clerk is DIRECTED to refer Plaintiff’s motion for recusal to Chief United States 5 District Judge Ricardo S. Martinez for further consideration. See W.D. Wash. Local Civ. R. 3(g). 6 B. Motions for Leave to Proceed In Forma Pauperis and to Stay 7 Plaintiff moves to stay this case pending the outcome of his appeal of the Court’s order to 8 show cause and for leave to proceed in forma pauperis on appeal. (Dkt. Nos. 47, 49.) Plaintiff’s 9 motion to stay simply states that, “Pursuant to Federal Rule of Appellate Procedure 8(a)(1)(A), 10 Plaintiff acting as Pro Se hereby respectfully moving this Court to grant the motion for stay 11 pending appeal.” (Dkt. No. 47 at 1.) Plaintiff’s motion does not provide any substantive basis for 12 the Court to stay this case pending the outcome of Plaintiff’s appeal. See Battle v. Anderson, 564 13 F.2d 388, 397 (10th Cir. 1977) (reciting elements courts examine to determine whether stay 14 order pending an appeal is warranted). Therefore, Plaintiff’s motion to stay (Dkt. No. 47) is 15 DENIED. 16 Plaintiff’s motion to proceed in forma pauperis on appeal might set forth a basis to find 17 him indigent. (See Dkt. No. 49.) But on March 30, 2020, the Ninth Circuit issued an order 18 dismissing Plaintiff’s appeal for lack of jurisdiction without reaching the issue of whether 19 Plaintiff could proceed before paying the filing and docketing fees for his appeal. (See Dkt. No. 20 53 at 1) (citing 28 U.S.C. § 1291). Therefore, Plaintiff’s motion to proceed in forma pauperis on 21 appeal (Dkt. No. 49) is DENIED as moot. 22 III. CONCLUSION 23 For the foregoing reasons, Plaintiff’s motions to vacate order or disqualify the Court, to 24 stay this case pending appeal, and to proceed in forma pauperis on appeal (Dkt. Nos. 45, 47, 49) 25 are DENIED. 26 // 1 DATED this 2nd day of April 2020. A 2 3 4 John C. Coughenour 5 UNITED STATES DISTRICT JUDGE
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