Peralta v. Worthington Industries Incorporated

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Jason Lou Peralta, No. CV-17-03195-PHX-JJT

10 Plaintiff, ORDER

11 v.

12 Worthington Industries Incorporated, et al.,

13 Defendants. 14 15 On May 29, 2022, attorney Andrew W. Shalaby (“Shalaby”) filed a motion to 16 disqualify the assigned judge in this case, Judge Tuchi, based on allegations of bias. (Doc. 17 324.) In response, Judge Tuchi asked that the motion be resolved by a randomly selected 18 judge. (Doc. 326.) The Court has now carefully reviewed Shalaby’s motion and the 19 lengthy docket in this case. For the following reasons, the motion is denied. 20 RELEVANT BACKGROUND 21 In September 2017, Plaintiff Jason Lou Peralta (“Plaintiff”), who at that time was 22 represented by Shalaby, filed this action. (Doc. 1.) Shalaby is a California-based attorney 23 who applied for, and was granted, pro hac vice status at the outset of the case. 24 On December 4, 2017, Judge Tuchi oversaw the Rule 16 conference and also held 25 oral argument on a pending motion to dismiss/strike the complaint. (Doc. 32.) Judge Tuchi 26 then issued the scheduling order, which, among other things, disallowed the filing of 27 written discovery motions and instead required the parties to present discovery disputes via 28 a written joint summary prepared after meeting and conferring. (Doc. 33 at 3.) 1 On December 8, 2017, Judge Tuchi held a hearing to resolve a discovery dispute 2 that was discussed during the Rule 16 conference. (Doc. 39.) One of the issues was the 3 issuance of a protective order. (Doc. 48 at 29.) Shalaby stated he did not object to a 4 protective order but wanted a provision added that would allow him to share confidential 5 information from this case in other cases. (Id. at 29-31.) Judge Tuchi denied the request 6 and authorized the protective order in the form the Court ordinarily uses. (Id. at 32.) 7 On January 16, 2018, Shalaby filed1 a “Request for Discovery Dispute Conference 8 Pertaining to Protective Order,” reasserting his request to make use of confidential 9 information from this case in other cases. (Doc. 50.) Defendants responded that the motion 10 was “really a motion for reconsideration in disguise” and opposed it. (Doc. 51.) 11 On January 18, 2018, Judge Tuchi denied the motion and ordered Defendants to file 12 “a joint proposed Protective Order conforming to the Court’s prior directive.” (Doc. 52 at 13 2.) 14 That same day, Shalaby filed a document entitled “Request for Formal Order 15 Regarding Protective Order.” (Doc. 55.) Among other things, Shalaby interpreted Judge 16 Tuchi’s order as requiring him to stipulate to the protective order and requested relief from 17 the stipulation requirement. (Id.) Shalaby also suggested that Judge Tuchi had ruled 18 incorrectly during a previous discovery-dispute hearing, which Shalaby characterized as 19 “an informal discovery conference” that was not “formally preserved for appellate review.” 20 (Id.) 21 On January 22, 2018, Judge Tuchi issued an order denying these requests. (Doc. 22 57.) The order explained (1) that Defendants had been ordered to file a protective order 23 and Plaintiff had never been ordered to stipulate to it; and (2) that every “determination of 24 this Court, whether issued orally or from the bench, is a formal order with the full force of 25 law,” such that Shalaby’s belief that he must seek a “formal order” following a ruling from 26 1 The filing was styled as a personal letter from Shalaby to the Court. Although all 27 of Shalaby’s filings during the time he represented Plaintiff are considered to be on Plaintiff’s behalf, this order, which involves Shalaby’s conduct both during and after his 28 representation of Plaintiff, will dispense with the legal fiction of stating that “Plaintiff” filed the various filings at issue in this order. 1 the bench to preserve the right to appellate review was “mistaken.” (Id. at 1-2.) The order 2 then stated as follows:

3 Plaintiff’s briefing raises the Court’s concerns about Plaintiff’s counsel, Andrew Shalaby. Counsel’s briefing thus far in this matter reflects a lack of 4 understanding both of this Court’s orders and federal practice and procedure in general. It is self-evident, both as a practical matter and by the terms of a 5 protective order, that the purpose and intent of such order is to facilitate fair disclosure of sensitive and competitive information by protecting that 6 information from disclosure or use for any purpose other than the matter at bar. Plaintiff’s repeated requests to the contrary—to allow his counsel free 7 use of Defendant’s sensitive information subject to the protective order in any other litigation he chooses or may choose in the future—is anathema to 8 the purpose of the order. And as the Court set forth at the December 8, 2017 hearing, it is highly improper for Plaintiff to seek an order from a court in the 9 District of Arizona that would bind or delimit what is discoverable in any other action, whether in this district or any other. This should be obvious, yet 10 Plainitff’s counsel persists in his course, wasting counsel’s time in preparing such motions, Defendant’s counsel’s time and money in preparing the 11 required responses, and the Court’s time in reviewing the briefing and preparing orders such as this one. 12 These shortcomings may implicate an inability by counsel to effectively 13 represent the interests of his client in this matter. In particular, the Court holds concern that counsel’s continued attempt to litigate the language of the 14 protective order in this matter—wherein counsel’s only attorney-client relationship-based duties run to advance the interests of client Jason Peralta’s 15 interests—so that it benefits clients in other matters presents a very real potential conflict of interest under ER 1.7, Rule 42 of the Supreme Court of 16 Arizona. The Court will monitor this issue moving forward. 17 (Id. at 2-4.) 18 Later that day, Shalaby filed a “Notice of Temporary Illness of Plaintiff’s Counsel,” 19 stating that “the Court is correct in identifying my confusion on its order issued today” and 20 that he had been “diagnosed with a cardiac condition” the previous month and had been 21 “placed on certain medications that cause temporary impairment and confusion.” (Doc. 58 22 at 1-2.) Shalaby asked the Court to forgive his impairment, which he hoped would be 23 “temporary and for a short run.” (Id. at 2.) 24 Nevertheless, on March 1, 2018, Shalaby filed a motion for reconsideration of the 25 Court’s January 22, 2018 order. (Doc. 64.) Shalaby explained that a different judge in a 26 different case pending in a different court had issued an order denying Shalaby’s motion 27 for reconsideration of a vexatious litigant prefiling order, and in so doing, the judge had 28 noted that “Shalaby appears to have a history of disrespecting court orders,” citing various 1 judges’ orders, including Judge Tuchi’s. (Id. at 2-3.) Shalaby found this “upsetting.” (Id. 2 at 3.) He requested that Judge Tuchi enter an order retracting the statement that “Plaintiff’s 3 briefing represents a fundamental misunderstanding of how the Court operates” and further 4 requested “that the Court not utilize the informal discovery telephonic conference 5 procedure in this case anymore” and “that we follow the formal motion procedure going 6 forward.” (Id. at 9.) 7 Shalaby then filed various motions to amend (Docs. 68, 70), requests for judicial 8 notice (Docs. 66, 75), “status reports” (Docs. 76, 77), and a motion for hearing (Doc. 79). 9 On July 17, 2018, Judge Tuchi denied the motion for reconsideration of his January 10 22, 2018 order and Shalaby’s request to alter the discovery dispute procedure laid out in 11 the case management order, denied the motion for a hearing, and dismissed the complaint 12 for failure to properly allege diversity jurisdiction, granting leave to amend. (Doc. 83.) 13 On August 7, 2018, Shalaby filed Plaintiff’s first amended complaint (“FAC”). 14 (Doc. 88.) 15 On November 28, 2018, Shalaby attempted to raise a discovery dispute by filing a 16 13-page declaration of an expert witness (Doc. 93) and a letter to the Court requesting a 17 hearing that stated, “[s]hould the Court want to familiarize itself with the nature of this 18 discovery dispute, kindly see document 93 filed today.” (Doc. 94.) 19 On November 30, 2018, Judge Tuchi issued an order noting that Shalaby’s recent 20 filings failed to comply with the discovery-dispute procedure set forth in the case 21 management order and warning Shalaby that “any future filings, whether dealing with 22 purported emergent or urgent circumstances or not, which do not comport with the 23 applicable rules of this Court’s prior orders, shall be stricken.” (Doc. 95 at 2.) Judge Tuchi 24 then noted that “the purpose of the Scheduling Order’s requirement of a joint notice of 25 discovery dispute” had been “thwarted,” leaving him “without the benefit of both sides’ 26 positions on the dispute,” and ordered Defendants to respond. (Id.) Defendants responded. 27 (Doc. 97.) Then Shalaby filed a motion for leave to file a formal discovery motion. (Doc. 28 98.) 1 On December 11, 2018, Judge Tuchi held a hearing, in which he again addressed 2 the discovery dispute process:

3 [M]y preference, developed over the years, and the preference of several of my colleagues on this bench, is to start with the practice that I advised you 4 of at the scheduling conference here, which is that if the parties have a discovery dispute that cannot be resolved in its entirety by a meet and confer, 5 that they should jointly file a document simply alerting me to the fact that there is a discovery dispute, and then priming the Court by giving me a page 6 on each side’s position so that I can then have them on the phone. Which is intended to save you all money and time, travel time and your client’s money, 7 and allows me to get responsive and iterative progress on sussing out what the discovery dispute is. 8 Because unlike the written motion practice, with a telephonic conference or 9 an in-person conference I can ask you questions about things that are still gaps in my knowledge of the facts that you’re laying forth or my lack of 10 understanding of something. You can answer those questions, and based on those answers I may have more questions. And it gets me to a point where I 11 feel I’m able to make an informed decision on the discovery dispute much more quickly and much more cheaply. 12 There are times, as I’ve indicated, where a written motion, response and reply 13 practice might make sense. But I don’t think it makes sense to start there all the time. 14 The point is to start with that which is the simplest for you, the cheapest for 15 your clients, and the most efficient for your time and the Court’s time. That’s why it is the standard practice in this Court that I’ve described to you. 16 [ . . . ] 17 The process issue that I need to get to is this – and Mr. Shalaby, I’ll address 18 this directly to you because you’ve stated in your writings to me, and in particular in this last at docket entry number 98, you’re concerned that there’s 19 not an adequate record for appeal of any discovery decision if we do things the way this Court does it. 20 All I can tell you is, sir, that is not the case. The record for appeal is the 21 transcript of everything that goes on in any hearing, as well as anything that is filed. But the Court rules from the bench based on argument presented by 22 the parties all the time; at trial on evidentiary issues, sometimes at dispositive motion hearings, although rarely, sometimes at motions to dismiss and things 23 like that.

24 And the record is what the record is. And that is part of the – part and parcel of the ruling or the order that may become appealable. And it is the basis, 25 and it is adequate for a court to review on appeal. That’s why my practice is what it is. It is in the service of the efficiency and minimization of expenses 26 to the parties that is called for in Rule 1 of the Federal Rules of Civil Procedure. 27 28 (Doc. 115 at 4-7.) 1 In the meantime, the case was referred to Magistrate Judge Willett, who was 2 randomly drawn for the purpose of conducting a settlement conference (Doc. 101) in 3 accordance with the parties’ stipulation (Doc. 96). Judge Willett set the settlement 4 conference for June 10, 2019. (Doc. 106.) After Shalaby filed a motion to expedite the 5 settlement conference (Doc. 117), Judge Willett held a status conference to discuss the 6 timing of the settlement conference (Doc. 137). Afterward, Judge Willett affirmed the June 7 10, 2019 date, based on the parties’ submissions. (Doc. 147.) 8 On March 22, 2019, Shalaby filed a motion to cancel the settlement conference 9 because, during confidential settlement negotiations in a different case pending before a 10 different court, an attorney who served as defense counsel in both that action and this one 11 conditioned settlement of that case on Shalaby not receiving attorneys’ fees. (Doc. 155.) 12 On March 29, 2019, Defendants filed a motion to revoke Shalaby’s pro hac vice 13 admission. (Doc. 158.) 14 On July 10, 2019, following full briefing (and then some),2 Judge Tuchi held a 15 hearing on the revocation motion. (Doc. 210.) 16 On January 7, 2020, Judge Tuchi issued a 40-page order granting Defendants’ 17 motion to revoke Shalaby’s pro hac vice status. (Doc. 231.) A detailed summary of this 18 order is necessary here because it provides much of the foundation for the current dispute: 19 ▪ The order begins by noting that Shalaby himself once “suffered a serious burn 20 while using a Bernzomatic gas-fueled torch manufactured by the Worthington Defendants’ 21 predecessors in interest” and that Shalaby thereafter filed a series of unsuccessful lawsuits 22 in state and federal court in California based on that injury. (Id. at 2-4.) Eventually, Judge 23 Battaglia of the U.S. District Court for the Southern District of California entered a 24 “vexatious litigant pre-filing order” against Shalaby that was upheld by the Ninth Circuit 25 in 2014 and remains in place to this day. (Id.) 26 ▪ Next, the order notes that Shalaby filed a different benzene torch lawsuit on behalf

27 2 On July 2, 2019, Judge Tuchi resolved 12 pending motions, including a motion to allow Defendants to file a surreply to Plaintiff’s unauthorized surreply. (Doc. 203.) This 28 order also granted a stipulation to file a second amended complaint (“SAC”) (filed at Doc. 204). 1 of a client in 2016 in the U.S. District Court for the Northern District of Illinois. (Id. at 4- 2 6.) In February 2019, the judge in that case (Judge Reinhard) issued a 48-page order 3 revoking Shalaby’s pro hac vice application on the grounds that (1) Shalaby had made 4 misrepresentations in his pro hac vice application regarding a 2015 order in a different case 5 in which a bankruptcy judge (Judge Johnston) determined that Shalaby had committed 6 sanctionable misconduct; (2) Shalaby had made several factual misrepresentations in the 7 course of seeking the recusal of the magistrate judge assigned to his case in the Northern 8 District of Illinois; (3) Shalaby had repeated those misrepresentations regarding the 9 magistrate judge in filings in other matters; and (4) Shalaby had been less than truthful in 10 his pro hac vice application by failing to mention the sanctions order issued by Judge 11 Johnston and the vexatious litigant order issued by Judge Battaglia. (Id.) Afterward, the 12 Seventh Circuit upheld the revocation order and chastised Shalaby for misrepresenting the 13 law. (Id.) 14 ▪ Next, the order discusses Shalaby’s litigation conduct during the first two-plus 15 years of this case. (Id. at 6-8.) Specifically, the order notes that (1) in his pro hac vice 16 application, Shalaby avowed under penalty of perjury that he was not “currently the subject 17 of a disciplinary investigation or proceeding by any Bar or Court” and had never “been 18 disbarred from practice in any Court”; (2) the docket in this case includes over 100 docket 19 entries “relate[d] either to Plaintiff’s attempts to re-litigate aspects of the matter on which 20 the Court already has ruled—cardinally the scope of discovery—or to Mr. Shalaby’s 21 attempts to put before the Court what he believes to be substantive evidence underlying his 22 arguments for a finder of fact on the ultimate issue of liability in this matter”; and (3) a few 23 weeks after Shalaby’s pro hac vice admission was revoked in the Northern District of 24 Illinois, Shalaby propounded discovery requests in this matter that were intended “to assist 25 in his defense against Judge Reinhard’s revocation order.” (Id.) 26 ▪ Having established these background facts, the order next discusses whether 27 Shalaby violated any applicable standards of professionalism and/or rules of professional 28 responsibility. The order concludes that Shalaby committed the following violations: (1) 1 he violated the prohibition against making unfounded accusations of impropriety 2 (Standards for Professional Conduct, No. 4) by creating and maintaining website that 3 identified, by name, various lawyers who are purportedly “dishonest and do not care that 4 others have been injured and killed by these products,” including defense counsel in this 5 case (id. at 8-11); (2) he repeatedly violated the duty of candor to the tribunal (ER 3.3) via 6 his “failure to disclose the requested prior discipline and any pending discipline, both at 7 the time of application for pro hac vice admission to this Court, and thereafter on a 8 continuing basis” (id. at 11-19); (3) he twice violated the prohibition against conflicts of 9 interest (ER 1.7), first by seeking to cancel the settlement conference in this matter because 10 a settlement offer in the Northern District of Illinois matter contained a term that was 11 unfavorable to him personally, and then again by using the discovery process in this matter 12 to seek information that was relevant only to the Northern District of Illinois matter (id. at 13 19-27); (4) he repeatedly violated the duty of competence (ER 1.1) by, inter alia, exceeding 14 applicable page limits, displaying “a basic inability to understand rudimentary procedure 15 and litigation practice,” filing motions while a stay was in place, and attempting to relitigate 16 settled issues (id. at 27-33)3; and (5) he violated the duty to promptly report the imposition 17 of discipline by other courts (LRCiv 83.2) by failing to report the various orders of the 18 Southern District of California, the Northern District of Illinois, and the bankruptcy court 19 (id. at 33-35). 20 ▪ Finally, the order addresses whether, in light of these findings, Shalaby’s pro hac 21 vice admission should be revoked. (Id. at 35-40.) As an initial matter, the order notes that 22 Judge Reinhard’s order revoking Shalaby’s pro hac vice admission in the Northern District 23 of Illinois would, due to its “detailed description of Mr. Shalaby’s actions and behavior 24 involving false statements” and “sound analysis of the legal and ethical implications of 25 those actions,” provide “sufficient basis standing alone to revoke Mr. Shalaby’s admission 26 in the instant matter.” (Id. at 35.) Nevertheless, the order goes on to identify other reasons

27 3 The order separately expressed concern about Shalaby’s “own repeated acknowledgement that he is suffering from a combination of physical and mental issues 28 that call his competence to represent Mr. Peralta in this matter into question.” (Doc. 231 at 31.) 1 why Shalaby’s pro hac vice admission should be revoked, including “the specific violations 2 found above” and “the findings of other courts, including the Southern District of 3 California in issuing its pre-filing order, and more recently its contempt citation for 4 violating that order; the Northern District of California Bankruptcy Court in issuing its own 5 consequences; and to a lesser extent the orders of the Seventh Circuit and the JPMDL 6 [United States Judicial Panel on Multidistrict Litigation]; all of which noted actions or 7 patterns of actions by Mr. Shalaby that demonstrate failures to follow rules and orders, 8 and/or misrepresentations to the court on issues of fact or law.” (Id.) The order concludes:

9 Upon consideration of all of the above, as well as Mr. Shalaby’s responses to the Order to Show Cause and his presentation at the OSC hearing, the 10 Court finds that revocation of Mr. Shalaby’s pro hac vice admission in this matter is warranted. The fact that his conduct in the [Southern District of 11 California] matter, which resulted in . . . the pre-filing order nearly eight years ago, mirrors closely his conduct as observed by all of the other courts 12 listed above in the ensuing years, and was present in the instant action as well, demonstrates that it is unlikely to change, and continued admission on 13 this matter with other lesser sanctions are wholly unlikely to drive compliance with the ethical rules, the Local Rules or this Court’s Orders. 14 15 (Id. at 35-36.) Finally, the order notes that “[t]his is not a decision the Court undertakes 16 lightly. The Court understands the serious professional consequences to an attorney for 17 being so disciplined . . . . It so orders only after the conclusion, announced above, that a 18 lesser sanction will not suffice.” (Id. at 37.) 19 Following the issuance of the revocation order in January 2020, attorney David 20 Chen (“Chen”), who first appeared as Plaintiff’s counsel in late 2018 (Doc. 100), took the 21 lead in the representation of Plaintiff. In July 2020, Chen represented Plaintiff at a 22 settlement conference, but a settlement was not reached. (Doc. 244.) 23 A few weeks later, Shalaby sent a settlement-related letter to Judge Willett, who had 24 overseen the settlement conference, but Judge Willett “reject[ed] the correspondence and 25 forward[ed] it unopened to counsel for Plaintiff for any action deemed appropriate” in light 26 of the fact that Shalaby was “not counsel in the case or a named party.” (Doc. 247.) 27 In August 2020, Defendants filed another motion related to Shalaby. (Doc. 248.) 28 The motion noted that, in the case in the Northern District of Illinois, Shalaby had 1 continued participating in the case in an indirect manner following the revocation of his 2 pro hac vice status by acting as “personal counsel” for the plaintiff’s experts, including 3 appearing at and defending their depositions. (Id. at 2.) The motion further noted that, 4 through an email exchange with Chen, Defendants’ counsel had learned that “Mr. Shalaby 5 is planning to act as the personal counsel for Plaintiff’s experts Roston and Marieiro in this 6 matter, just as he is attempting to do in the [Northern District of Illinois] matter.” (Id. 3.) 7 The motion sought to bar Shalaby from doing so. (Id.) 8 In October 2020, after Plaintiff failed to respond, Judge Tuchi issued an order 9 granting the motion to preclude Shalaby from acting as Plaintiff’s experts’ personal 10 counsel. (Doc. 250.) In addition to noting that the motion could be granted under the Local 11 Rules based on Plaintiff’s failure to respond to it, the order explained that the motion should 12 be granted on the merits because, inter alia, “[t]he notion of an expert witness in a civil 13 matter having, and consulting with, his or her own counsel in the course of a deposition is 14 very curious, even without the added ingredient of that counsel having been disbarred 15 previously in the matter.” (Id. at 2.) 16 The next relevant Shalaby-related development occurred on December 8, 2020, 17 when Shalaby sent an unsolicited email to Judge Tuchi’s chambers. (Doc. 253 at 2-3.) 18 Among other things, the email “request[ed] permission to sit and listen to the deposition of 19 Worthington’s expert Jeff Pfaendtner, scheduled for 12/11/2020” because Shalaby 20 considered himself “more familiar with the expert evidence then the others involved and 21 would be able to identify improper expert evidence and opinions if introduced.” (Id.) In 22 response, Judge Tuchi issued an order on December 9, 2020 that simply notified the parties 23 of this development and clarified that the Court would “take no action on this email absent 24 a motion from one or more of the parties.” (Doc. 253 at 1.) 25 Nevertheless, Shalaby continued to contact Judge Tuchi. On April 30, 2021, Judge 26 Tuchi issued an order that Shalaby “shall cease all attempts to communicate with the Court 27 on this matter.” (Doc. 267 at 4.) The order noted that between December 9, 2020 and 28 April 30, 2021, Shalaby “sent eight more communications to the Court, including emails 1 and physical mailings. The emails appear to be copied to counsel for Defendant, but not to 2 counsel for Plaintiff; the Court is unaware whether the mailing also was sent to either 3 party.” (Doc. 267 at 1.) Judge Tuchi determined that:

4 Mr. Shalaby’s continued attempts to influence the Court and the direction of this matter make clear that the prohibitions of the many local and federal 5 rules at issue are not obvious to him. The Court will clarify: The Court has revoked Mr. Shalaby’s admission before the District of Arizona, so he is not 6 counsel for Plaintiff in this matter. Nor is he a party in this matter. He therefore holds no status under which the Court will recognize his ability to 7 communicate with it on this matter. The Court will not consider any communications to it from Mr. Shalaby in this matter. If Mr. Shalaby 8 attempts to communicate with the Court about this matter again, the Court will proceed as appropriate under LRCiv 83.1(e). 9 10 (Id. at 2.) 11 It appears that, even after the issuance of this April 30, 2021 order, Shalaby 12 continued attempting to participate in the case by filing materials with the Clerk of Court 13 and/or sending emails to Judge Tuchi’s chambers. As a result, on May 24, 2021, Judge 14 Tuchi issued an order that provided as follows:

15 The Court has spent a great deal of time and effort attempting to patiently explain to Mr. Shalaby that because he is not a party to the instant matter, 16 and this Court having revoked his admission pro hac vice to appear as counsel in this matter[,] [h]e has no role in the matter and no standing to 17 attempt to participate in the litigation of the matter. Mr. Shalaby continues undeterred, repeatedly disregarding not only the Court’s Orders but also the 18 Federal Rules of Civil Procedure, the Local [R]ules of Practice for the District of Arizona and now the Federal Rules of Appellate Procedure. 19 IT IS ORDERED directing the Clerk of Court that it shall accept no 20 communications from Mr. Shalaby in relation to the instant action, in whatever form he may attempt to submit them. The Clerk and chambers staff 21 shall return any mailings from Mr. Shalaby or his firm unopened and shall similarly dispose of any emails from Mr. Shalaby or his firm. 22 23 (Doc. 287.) 24 On January 13, 2022, Judge Tuchi issued an order granting Defendants’ motion for 25 summary judgment. (Doc. 308.) That same day, the Clerk of Court entered judgment in 26 Defendants’ favor, seemingly bringing this case to a conclusion. (Doc. 309.) 27 One day later, on January 14, 2022, Shalaby sent an email to Judge Tuchi’s 28 chambers stating that he was representing Plaintiff on appeal and also planned to appeal 1 the revocation of his pro hac vice admission. (Doc. 310 at 1.) 2 On January 18, 2022, Judge Tuchi issued an order clarifying that, notwithstanding 3 the previous orders revoking Shalaby’s pro hac vice status and barring the Clerk from 4 accepting any future filings from Shalaby, Shalaby would be allowed to file a notice of 5 appeal and a request for any transcripts needed to pursue an appeal. (Docs. 310.) On 6 January 24, 2022, Judge Tuchi issued another order allowing Shalaby to use the Court’s 7 electronic filing system (“ECF”) for appellate-related documents only. (Doc. 312.) 8 On January 24, 2022, Shalaby filed a notice of appeal. (Doc. 313.) 9 That same day, Judge Tuchi issued an order explaining that Shalaby sent emails to 10 his chambers “requesting that the Court give him unrestricted filing status so he can file 11 post-judgment motions in this district court matter.” (Doc. 314 at 1.) Judge Tuchi denied 12 this request, explaining that the recent order authorizing Shalaby to file a notice of appeal 13 “did not rescind the revocation of his pro hac vice status in the District of Arizona. . . . If 14 counsel of record for Plaintiff, David Chen, wishes to file post-judgment motions that he 15 has prepared and for whose content he is responsible, he may do so.” (Id.) The order 16 further prohibited Shalaby from engaging in “any further attempts to communicate with 17 this Court, by e-mail or otherwise, about this case”:

18 After more than four years, a lengthy and exhaustive Order revoking Mr. Shalaby’s pro hac vice admission to this Court and explaining precisely why, 19 and eight subsequent Orders repeatedly explaining that Mr. Shalaby is not counsel, nor expert witness nor party in this matter, he may not participate in 20 its litigation in any form, the Court has exhausted its patience. Should Mr. Shalaby ignore this Order and send further e-mails or other communication 21 about this matter, the Court will not respond to or considerate in this matter.

22 (Id. at 2) (citations omitted). 23 On April 12, 2022, Shalaby violated this order by sending an email to Judge Tuchi’s 24 chambers in which he “respectfully mov[ed] for readmission PHV so that [he could] file a 25 post‐judgment Rule 60 motion on behalf of Mr. Peralta in relation to the pending appeal.” 26 (Doc. 321 at 2.) 27 On April 21, 2022, Judge Tuchi issued an order that provided as follows: 28 Mr. Shalaby has again violated this court’s Orders prohibiting him from 1 communicating with the Court on behalf of Plaintiff in his district court matter. Now Mr. Shalaby seeks readmission pro hac vice to this Court to 2 ‘file a post-judgment Rule 60 motion on behalf of Mr. Peralta in relation to the pending appeal.’ (See attached email.) Plaintiff is represented in the 3 district court matter by Mr. Chen. If Plaintiff in fact requires any matters addressed by filings in this Court, he may do so through his admitted counsel, 4 Mr. Chen. The Court having revoked Mr. Shalaby’s admission pro hac vice upon a finding of cause in this matter, it will not reverse course. 5 (Id. at 1.) 6 On April 27, 2022, Chen filed a motion to withdraw as Plaintiff’s counsel with 7 Plaintiff’s consent. (Doc. 322.) This motion was granted. (Doc. 323.) 8 On May 29, 2022, Shalaby filed the motion now pending before the Court—a 9 motion to disqualify Judge Tuchi based on allegations of bias. (Doc. 324.) 10 On June 1, 2022, Judge Tuchi issued an order referring the motion to a randomly 11 assigned judge. (Doc. 326.)4 12 DISCUSSION 13 Shalaby seeks the disqualification of Judge Tuchi under 28 U.S.C. § 455(a) and 14 (b)(1). (Doc. 324 at 2.)5 Shalaby argues that the “strain of the attorney-judge relationship 15 began” in January 2018 when Shalaby “called into question the validity of [Judge Tuchi’s] 16 Chamber rule dispensing with discovery motions,” prompting Judge Tuchi to make 17 “angry,” “derogatory,” and ‘unjustifiably inflammatory” statements suggesting that 18

19 4 Shalaby has since filed a motion for reconsideration of Judge Tuchi’s rulings related to his pro hac vice status and filing privileges. (Doc. 327.) That motion is now fully 20 briefed. (Docs. 329, 330.) The undersigned judge takes no action on this motion because it falls outside the scope of the referral order, which relates only to the disqualification 21 motion. 5 Shalaby asserts that “Judge Tuchi should not rule on the motion, but instead, the 22 matter should first be reassigned as a matter of law.” (Doc. 324 at 2.) The motion, however, relies solely on 28 U.S.C. § 455 as the basis for recusal. That provision is 23 “directed to the judge, rather than the parties, and is self-enforcing on the part of the judge”—it invokes the judge’s “duty to recuse himself” and “includes no provision for 24 referral of the question of recusal to another judge.” United States v. Sibla, 624 F.2d 864, 867-68 (9th Cir. 1980). If a party wishes to seek a district judge’s recusal, an affidavit can 25 be brought pursuant to 28 U.S.C. § 144, which provides that the “judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.” “Although 26 the substantive test for bias or prejudice is identical in sections 144 and 455, the procedural requirements of the two sections are different.” Sibla, 624 F.2d at 867. Shalaby never 27 explicitly invoked § 144, and even if his declaration (Doc. 324 at 11) combined with his request for the assignment of another judge to hear the motion could be construed as 28 implicitly invoking § 144, the procedural requirements of that section are not met. Nevertheless, the motion having been referred, the undersigned judge will resolve it. 1 Shalaby was “insubordinate.” (Id. at 2-3.) According to Shalaby, judges in the Northern 2 District of Illinois improperly used Judge Tuchi’s January 2018 statements against him to 3 make their own “factually inaccurate and disparaging statements about Shalaby,” which 4 Judge Tuchi then relied upon in circular fashion to revoke his pro hac vice status. (Id. at 5 3-5.) Next, Shalaby argues that “[e]vidence of Judge Tuchi’s dislike towards Shalaby (i.e. 6 prejudice) is ample” from the January 2020 revocation order, both because of the content 7 of the order and because it was issued “without any order to show cause or opportunity to 8 respond,” and that these considerations “facially prove Judge Tuchi’s prejudice to the point 9 where recusal was mandatory under 28 USC § 455(b)(1).” (Id. at 5.) Next, Shalaby argues 10 Judge Tuchi’s April 30, 2021 order, which reaffirmed that Judge Tuchi would not consider 11 any future email communications from Shalaby, revealed “prejudice beyond dispute” 12 because it was legally incorrect and issued without adequate prior notice. (Id. at 5-6.) 13 Next, Shalaby argues that Judge Tuchi’s actions also interfered with his ability to be heard 14 and to file a notice of appeal. (Id. at 6-7.) Next, Shalaby argues that Judge Tuchi’s January 15 2022 orders, which allowed him to file a notice of appeal, were also legally flawed and 16 also issued without adequate prior notice. (Id. at 7-8.) According to Shalaby, “the anger 17 and prejudice Judge Tuchi bore towards him caused all parties to this action to waste an 18 inordinate amount of time . . . . Shalaby believes Judge Tuchi is aware he cannot by law 19 prevent a party impacted by an adverse order from filing a motion for relief from that order, 20 yet out of anger and prejudice, has refused to abide by the law by striking Shalaby’s 21 efforts.” (Id. at 8-9.) Shalaby also accuses Judge Tuchi of making “a latent threat” to 22 dismiss the action if Plaintiff continued to communicate with Shalaby and of making 23 “slanderous accusation[s] about Shalaby.” (Id. at 9.) Shalaby concludes by arguing that 24 Judge Tuchi must have known that his rulings were legally incorrect, which in turn 25 qualifies as “a clear show of a prejudice which rises to the level that mandates self-recusal.” 26 (Id. at 10.) 27 Shalaby’s disqualification request is denied. As an initial matter, the motion is 28 procedurally impermissible and violates clear and repeated court orders. By the time 1 Shalaby filed this motion in May 2022, his pro hac vice status had been revoked for over 2 two years, such that, as a non-party to the suit, he had no standing to seek disqualification 3 of the judge presiding over it. If Plaintiff’s remaining counsel, Chen, had filed a motion to 4 disqualify Judge Tuchi—presumably while the case was still being litigated6—such a 5 motion would warrant consideration on its merits. But once Shalaby was no longer 6 Plaintiff’s counsel, he had no right to file a motion seeking Judge Tuchi’s recusal. This 7 was true even before he was expressly ordered, multiple times, to stop attempting to 8 participate in this case (except with respect to appellate matters). Shalaby was granted 9 limited access to ECF “for appellate-related documents only” (Doc. 312) and has been 10 otherwise prohibited from filing motions with the district court. 11 At any rate, the motion fails on the merits. The disqualification provisions invoked 12 in Shalaby’s motion, 28 U.S.C. § 455(a) and (b)(1), only require recusal when a judge’s 13 “impartiality might reasonably be questioned” or when a judge “has a personal bias or 14 prejudice concerning a party, or personal knowledge of disputed evidentiary facts 15 concerning the proceeding.” Thus, “to state a successful case for recusal, . . . a party must 16 allege bias or prejudice stemming from an extrajudicial source.” United States v. 17 Hernandez-Escarsega, 886 F.2d 1560, 1581 (9th Cir. 1989). Here, Shalaby does not allege 18 any bias or prejudice stemming from an extrajudicial source, such as a personal interest in 19 the litigation or exposure to extrajudicial information, and nothing would cause an 20 objective observer to reasonably question Judge Tuchi’s impartiality or conclude that Judge 21 Tuchi harbors bias or prejudice against Shalaby. 22 At most, Judge Tuchi has (like many other judges) made adverse rulings against 23 Shalaby that include criticisms of the underlying litigation conduct that gave rise to the 24 adverse rulings. But as the Ninth Circuit has emphasized, “judicial rulings alone almost 25 6 In re Anwiler, 958 F.2d 925, 930 (9th Cir. 1992) (“When the evidence on which a 26 motion to disqualify is based is known beforehand, waiting until after the case . . . has been decided before bringing a disqualification motion raises the spectre of judge shopping. 27 Imposing a timeliness requirement prevents a waste of judicial resources. If there is no such requirement, a party can wait until the trial or appeal is over and if unhappy with the 28 result then bring the motion to disqualify.”). 1 never constitute a valid basis for a bias or partiality motion, and expressions of impatience, 2 dissatisfaction, annoyance, and even anger alone are insufficient to establish bias or 3 partiality.” United States v. McChesney, 871 F.3d 801, 807 (9th Cir. 2017) (cleaned up). 4 This rule applies with particular force in cases in which a sanctioned litigant or attorney 5 seeks the recusal of the judge who issued the sanctions order—to the extent the underlying 6 order includes language criticizing the sanctioned party, such language is often necessary 7 to explain the basis for the order and is not, on its own, proof of impermissible bias and 8 prejudice. See, e.g., Forte v. Schwartz, 791 F. App’x 674, 675 (9th Cir. 2020) (“The judge’s 9 imposition of a Fed. R. Civ. P. 11 sanction for filing a request ‘filled with offensive 10 commentary’ and the referral of Forte for criminal contempt proceedings . . . were rulings 11 on matters before the court and did not show that the judge’s impartiality might reasonably 12 be questioned.”); Matter of Yagman, 796 F.2d 1165, 1181-82 (9th Cir. 1986) (“[T]here is 13 no support in the record for the claim that Judge Real was personally biased or prejudiced 14 against Yagman. . . . [A]lthough it is obvious that Yagman and Judge Real clashed several 15 times during the trial over various objections, evidentiary matters, and rule violations, we 16 find none of it remarkable enough to indicate a need for Judge Real to disqualify himself 17 from deciding the issue of sanctions. A judge may impose sanctions such as those at bar 18 on his or her own initiative. When this occurs, the judge will obviously be dissatisfied with 19 some aspect of the offending attorney’s conduct. Often the judge may be angry with the 20 attorney for violating one or more rules. Without more, this natural responsive attitude 21 does not provide reasonable grounds to question the judge’s impartiality, either because of 22 the appearance or the fact of bias or prejudice, in presiding over the sanctions 23 proceeding.”). See generally Liteky v. United States, 510 U.S. 540, 550-51 (1994) (“The 24 judge who presides at a trial may, upon completion of the evidence, be exceedingly ill 25 disposed towards the defendant, who has been shown to be a thoroughly reprehensible 26 person. But the judge is not thereby recusable for bias or prejudice, since his knowledge 27 and the opinion it produced were properly and necessarily acquired in the course of the 28 proceedings . . . . Impartiality is not gullibility. Disinterestedness does not mean child- 1 like innocence. If the judge did not form judgments of the actors in those court-house 2 dramas called trials, he could never render decisions.”) (citation and internal quotation 3 marks omitted). 4 Moreover, having carefully reviewed the docket, the Court is struck by the patience 5 and restraint that Judge Tuchi displayed when dealing with repeated violations of clear, 6 unambiguous orders by an attorney whose similar conduct in other cases has prompted 7 other judges to restrain his litigation and filing privileges. The challenged orders are replete 8 with passages that an objective observer would view as evidence of fairness and even- 9 handedness, not bias and anger. (See, e.g., Doc. 231 at 25 [“Mr. Shalaby [has a] close 10 personal connection to his burn clients’ experiences due to his own experiences both 11 suffering burns and litigating over that injury. The Court does not minimize these 12 circumstances, and understands how traumatic burn injuries and their long—even 13 lifetime—aftermaths can be, both in terms of physical pain and psychic trauma. But it is 14 clear that Mr. Shalaby’s closeness to the issue has affected him so profoundly as to impact 15 his performance of duties in serving his client in this case, and has eroded his judgment, 16 perspective and circumspection about conflicts and other issues in this case, however good 17 his intentions may be.”]; id. at 37 [“This is not a decision the Court undertakes lightly. The 18 Court understands the serious professional consequences to an attorney for being so 19 disciplined . . . .”]; Doc. 287 at 1 [“The Court has spent a great deal of time and effort 20 attempting to patiently explain to Mr. Shalaby that because he is not a party to the instant 21 matter, and this Court having revoked his admission pro hac vice to appear as counsel in 22 this matter . . . [h]e has no role in the matter and no standing to attempt to participate in the 23 litigation of the matter.”].) 24 As for Shalaby’s contention that his pro hac vice status was revoked “without any 25 order to show cause or opportunity to respond” (Doc. 324 at 5), this is simply false. The 26 revocation order was issued only after full briefing of Defendants’ motion requesting this 27 exact relief, additional briefing after Shalaby filed an unauthorized surreply, and a hearing. 28 (Doc. 210.) Following the revocation of Shalaby’s pro hac vice status, he was no longer 1 || allowed to participate in the action because he was not a party and no longer represented one. Thus, Shalaby is wrong in his contention that he somehow deserved to have a 3|| “charging document, such as an order to show cause” (Doc. 324 at 5) before Judge Tuchi 4|| could enter orders attempting to stop Shalaby from continuing to participate in litigation in 5 || which he had no right to participate. 6 Finally, Shalaby’s contention that Judge Tuchi “issued an injunction order, 7 || purporting to restrain the non-party Andrew Shalaby from communicating with the entirety 8 || of the Federal Court” (id. at 6) is also false. Judge Tuchi ordered that Shalaby “shall cease 9|| all attempts to communicate with the Court on this matter.” (Doc. 267 at 4, emphasis || added.) When Shalaby repeatedly violated that order, Judge Tuchi ordered the Clerk of 11 || Court of the District of Arizona to “accept no communications from Mr. Shalaby in relation to the instant action.” (Doc. 287, emphasis added.) Later, Judge Tuchi again ordered that 13 || Shalaby was prohibited “from any further attempts to communicate with this Court, by e- 14]| mail or otherwise, about this case.” (Doc. 314 at 2, emphasis added.) The orders were 15 || limited in scope to this action only. 16 Accordingly, 17 IT IS ORDERED that Shalaby’s motion for disqualification (Doc. 324) is denied. 18 Dated this 25th day of July, 2022. 19 20 fm ee” 21 f : _o—— Dominic W. Lanza 22 United States District Judge 23 24 25 26 27 28

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