Rothschild v. The Pacific Companies

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MAYER AMSCHEL ROTHSCHILD, Case No. 23-cv-01721-LJC

8 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART MOTION TO 9 v. RELATE AND FOR CONSOLIDATION; DENYING 10 THE PACIFIC COMPANIES, MOTION FOR RECUSAL Defendant. Re: ECF Nos. 50, 51 11

12 13 Pending before the Court is Defendant The Pacific Companies’ Motion to Relate and for 14 Consolidation (ECF No. 50) as well as Plaintiff Mayer Amschel Rothschild’s “Motion for 15 Magistrate Judge Lisa J. Cisneros to recuses herself and a Federal Court Judge to replace Judge 16 Cisneros” (hereinafter, Motion for Recusal) (ECF No. 51). Oppositions to both motions were 17 filed. ECF Nos. 52, 53. The Court finds the motions suitable for determination without oral 18 argument pursuant to Civil Local Rule 7-1(b). For the reasons stated below, the Court GRANTS 19 IN PART and DENIES IN PART the Motion to Relate and For Consolidation and DENIES the 20 Motion for Recusal. 21 I. BACKGROUND 22 Mr. Rothschild brought this action in forma pauperis (IFP) against The Pacific Companies 23 on April 20, 2023. ECF No. 1. The Court screened Mr. Rothschild’s Complaint pursuant to 28 24 U.S.C. § 1915(e)(2)(B) and found that it did not sufficiently allege a basis for subject matter 25 jurisdiction. ECF No. 16. Mr. Rothschild was granted leave to amend. He filed the First 26 Amended Complaint (FAC) on June 30, 2023. ECF No. 18. On August 8, 2023, he filed the 27 1 Second Amended Complaint (SAC).1 ECF No. 22. The SAC joined additional defendants— 2 Caleb Roope, Stephanie Ann Gildred, Lorton Management Corporation (Lorton), and Byldan 3 Corporation (Byldan). See id. The Court once again screened the SAC pursuant to 28 U.S.C. 4 § 1915(e)(2)(B) and found that it failed to allege a basis for subject matter jurisdiction. ECF No. 5 23. In addition, the Court found that the SAC failed to state a claim on which relief could be 6 granted. Id. at 5. Mr. Rothschild was given leave to amend. 7 On September 29, 2023, Mr. Rothschild filed the Third Amended Complaint (TAC). ECF 8 No. 25. The TAC is the current operative complaint in this action. Mr. Rothschild dropped Mr. 9 Roope, Ms. Gildred, Byldan, and Lorton as defendants, leaving The Pacific Companies as the sole 10 remaining defendant. See id. The TAC brings claims for fraud, civil conspiracy, tortious 11 interference with business expectancy, breach of contract, nuisance, and personal injury. Id. It 12 also alleges that The Pacific Companies is incorporated and has its principal place of business in 13 Eagle, Idaho, and that Mr. Rothschild lives in and is domiciled in Florida.2 Id. 14 In terms of the substance of Mr. Rothschild’s claims, he alleges that Mr. Roope, as CEO of 15 The Pacific Companies, drafted a terms sheet which Mr. Rothschild and Ms. Gildred signed and 16 executed to build a five-story condominium development on a Burlingame, California property 17 that Mr. Rothschild had resided in with Ms. Gildred for ten years. Id. at 4. This condominium 18 development would be adjacent to a five-story parking garage already being developed by The 19 Pacific Companies. Id. Mr. Rothschild further alleges that Ms. Gildred decided to not move 20 forward with the development and proceeded to sell the property without his involvement, thus 21 depriving him of “both the development and the sales proceeds of the property.” Id. According to 22 1 Mr. Rothschild filed the SAC without leave of court. However, he filed the FAC pursuant to the 23 Court’s Section 1915(e)(2)(B) screening order, and the Ninth Circuit allows a party to make its one amendment as of right under Federal Rule of Civil Procedure 15 after it has previously 24 amended with leave of court. See Fed. R. Civ. P. 15 advisory committee notes; see also Ramirez v. Cnty. of San Bernardino, 806 F.3d 1002 (9th Cir. 2015) (“[Rule 15] does not mandate that the 25 matter of course amendment under 15(a)(1) be exhausted before an amendment may be made under 15(a)(2), nor does it state that the ability to amend under 15(a)(1) is exhausted or waived 26 once a 15(a)(2) amendment is made.”) 2 Mr. Rothschild simultaneously alleges that he lives in and is domiciled in Arizona, but only 27 provides an address in Cape Coral, Florida. ECF No. 25 at 2. In deference to his pro se status, the 1 Mr. Rothschild, The Pacific Companies conspired with Ms. Gildred to “deprive” him of the 2 “Future Business Expectancy” of selling the property. Id. Finally, Mr. Rothschild alleges that the 3 parking garage construction next door to where he and Ms. Gildred resided led to “substantial and 4 unreasonable interference” with his “use and enjoyment” of the property. Id. at 11. The 5 “interference” was related to “noise, odors, vibrations, pollution or other factors” which caused 6 Mr. Rothschild emotional and physical injuries. Id. at 11–12. 7 After screening the TAC pursuant to 28 U.S.C. § 1915(e)(2)(B), and liberally construing it 8 in deference to Mr. Rothschild’s pro se status, see United States v. Qazi, 975 F.3d 989, 993 (9th 9 Cir. 2020), the Court found that the TAC states cognizable claims against The Pacific Companies, 10 and ordered the Clerk to issue summons and the U.S. Marshal to proceed with service pursuant to 11 Rule 4(c)(3) of the Federal Rules of Civil Procedure. ECF No. 28. The Pacific Companies was 12 served on March 5, 2024. ECF No. 39. On March 26, 2024, the Court granted The Pacific 13 Companies’ request for an extension of time to file a response to the TAC. ECF No. 45. Its 14 response is due by May 24, 2024. Id. 15 On April 12, 2024, The Pacific Companies filed the Motion to Relate and for 16 Consolidation. ECF No. 50. On April 14, 2024, Mr. Rothschild filed the Motion for Recusal. 17 ECF No. 51. That same day, Mr. Rothschild also filed his Opposition to the Motion to Relate and 18 for Consolidation. ECF No. 52. On April 18, 2024, The Pacific Companies filed its Opposition to 19 the Motion for Recusal. ECF No. 53. 20 II. DISCUSSION 21 A. Motion to Relate and for Consolidation 22 The Pacific Companies requests that this case be considered related to Rothschild v. 23 Gildred et al, Case No. 23-cv-02105-AGT pursuant to Civil Local Rule 3-12, and that the cases be 24 consolidated pursuant to Rule 42 of the Federal Rules of Civil Procedure. ECF No. 50. In his 25 Opposition to the Motion to Relate and for Consolidation, Mr. Rothschild opposes consolidation 26 (ECF No. 52 at 1) but does not present any argument for the Court’s consideration as to why 27 relating or consolidating the cases is not appropriate. He does, however, request that: (1) The 1 atmosphere both in and out of the courtroom”; and (2) The case be transferred to “the Tampa U.S. 2 District Court,” though he does not specify which of the two cases he would like transferred. Id. 3 at 2. 4 1. Civil Local Rule 3-12 Relatedness 5 Civil Local Rule 3-12 provides that “[a]n action is related to another when: (1) The actions 6 concern substantially the same parties, property, transaction, or event; and (2) It appears likely that 7 there will be an unduly burdensome duplication of labor and expense or conflicting results if the 8 cases are conducted before different Judges.” Civ. L.R. 3-12(a)(1)–(2). An Administrative 9 Motion to Consider Whether Cases Should be Related must be filed in the lowest-numbered case, 10 and the Judge who is assigned to the lowest-numbered case will decide if the cases are or are not 11 related. See Civ. L.R. 3-12(b), (f). 12 The Pacific Companies argues that the actions are related because they concern the same 13 parties—the defendants in Gildred are Ms. Gildred and Lorton (see Case No. 23-cv-02105-AGT, 14 ECF No. 12), who were previously defendants in this case. The two actions also concern the same 15 “property (the parking garage and adjacent multi-family complex), alleged transactions and events 16 (the construction of the garage and the alleged negotiations for development), and contended 17 grievances (alleged health problems/loss of monetary gain).” ECF No. 50 at 2. Counsel for 18 defendants in both actions is the same. The Pacific Companies argues that the two cases should be 19 related “[g]iven this substantial overlap between these cases,” to avoid duplication of labor or 20 conflicting results. Id. 21 As the Judge assigned to the lowest-numbered case, the undersigned finds that Rothschild 22 v. Gildred et al, Case No. 23-cv-02105-AGT is related and that the case should be reassigned to 23 me. Although the cases no longer concern the same defendants, they do concern the same 24 Burlingame, California property, and the same alleged contract between Mr. Rothschild, Ms. 25 Gildred, and The Pacific Companies. The Court also finds that relating the two cases will avoid 26 any unduly burdensome duplication of labor and expense or conflicting results. Accordingly, the 27 request to relate the two cases is GRANTED. 1 2. Consolidation 2 “If actions before the court involve a common question of law or fact, the court may: (1) 3 join for hearing or trial any or all matters at issue in the actions; (2) consolidate the actions; or (3) 4 issue any other orders to avoid unnecessary cost or delay.” Fed. R. Civ. P. 42(a)(1)–(3). “For 5 convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial 6 of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims.” Fed. R. 7 Civ. P. 42(b). 8 The Pacific Companies requests that the two actions be consolidated pursuant to Rule 42. 9 However, it conflates the analysis on consolidation with its analysis as to whether the cases should 10 be related pursuant to Civil Local Rule 3-12. The Pacific Companies does not present any 11 argument specific to consolidation, nor does it indicate one way or another whether the two cases 12 “involve a common question of law or fact.” The request to consolidate the cases is, therefore, 13 DENIED without prejudice as to The Pacific Companies’ ability to bring a future motion for 14 consolidation. The Court will discuss the possibility of consolidation with all parties from both 15 cases at the next Case Management Conference. Parties in both related cases shall address in their 16 respective Joint Case Management Statements whether any specific part of pretrial proceedings 17 should be consolidated. The Court may direct the parties to file a motion to consolidate that 18 provides a more specific proposal for what aspects of the proceedings should be consolidated. 19 3. Plaintiff’s Request for Court Oversight 20 Mr. Rothschild’s request that the Court “oversee communications” between the parties is 21 DENIED. It is not the Court’s job to “oversee communications” between parties. All individuals 22 litigating before the Court, whether an attorney or a pro se party, are bound by the Federal Rules 23 of Civil Procedure as well as the Civil Local Rules. See Civ L.R. 3-9(a), 11-1. Attorneys are 24 separately bound by the standards of professional conduct required of members of the State Bar of 25 California, and the Guidelines for Professional Conduct in the Northern District of California 26 apply to all attorneys who practice before this Court. See Civ. L.R. 11-1(c), 11-4(a). These rules 27 are sufficient to ensure the fair and efficient administration of justice as to these proceedings. 1 4. Plaintiff’s Request for Transfer 2 Mr. Rothschild’s request for a transfer to the “Tampa U.S. District Court” is DENIED. 3 Requests for transfer to another U.S. District Court must be brought pursuant to the change of 4 venue process governed by 28 U.S.C. § 1404(a). Mr. Rothschild has submitted no argument nor 5 cited to any supporting legal authority demonstrating why a change of venue would be appropriate 6 under Section 1404(a). Moreover, Mr. Rothschild himself represents in another portion of his 7 Opposition to the Motion to Relate and for Consolidation that “[i]t is the contention of the Plaintiff 8 that this court, due to considerations of diversity, serves as the appropriate venue for these 9 proceedings.” ECF No. 52 at 1. The denial is without prejudice as to Mr. Rothschild’s ability to 10 bring another more substantive request for change of venue, if appropriate. 11 B. Motion for Recusal 12 Mr. Rothschild requests that the undersigned recuse herself from this matter because she 13 has “cast dispersions” on him as the Plaintiff and cast “doubt” as to his ability to “respond and 14 stay abreast of hearings.” ECF No. 51 at 1. He argues that the Court “does not like him” and has 15 included “rhetoric” and “negative comments” in orders “disparaging” Mr. Rothschild. Id. at 2. 16 Mr. Rothschild references only a Report and Recommendation that the undersigned issued in 17 another case, Rothschild v. Wagstaffe et al, Case No. 23-cv-05739-CRB, with a recommendation 18 to dismiss the complaint and all his claims.3 Id. Finally, he provides a long list of approximately 19 forty cases (see id.) but offers no argument as to how these cases support his request for recusal. 20 In its Opposition, The Pacific Companies presumes that Mr. Rothschild’s request for 21 recusal is pursuant to 28 U.S.C. § 144. The Court notes that recusal is also governed by 28 U.S.C. 22 § 455. “Under both statutes, recusal is appropriate where ‘a reasonable person with knowledge of 23 all the facts would conclude that the judge’s impartiality might reasonably be questioned.’” 24 Harper v. Lugbauer, No. C 11-01306 JW, 2012 WL 734167, at *1 (N.D. Cal. Mar. 6, 2012) 25 (quoting Yagman v. Republic Ins., 987 F.2d 622, 626 (9th Cir.1993)). Recusal is justified “either 26

27 3 On April 15, 2024, Judge Charles R. Breyer, the newly assigned Judge in the Wagstaffe case, 1 by actual bias or the appearance of bias.” Id. Under either statute, Mr. Rothschild has failed to 2 demonstrate that recusal is justified here. 3 1. Section 144 4 Section 144 provides that “[w]henever a party to any proceeding in a district court makes 5 and files a timely and sufficient affidavit that the judge before whom the matter is pending has a 6 personal bias or prejudice either against him or in favor of any adverse party, such judge shall 7 proceed no further therein, but another judge shall be assigned to hear such proceeding.” 28 8 U.S.C. § 144. The affidavit shall, inter alia, “state the facts and the reasons for the belief that bias 9 or prejudice exists.” Id. “Conclusory statements alleging personal bias or prejudice are not 10 statements of fact, and do not provide a basis for disqualification.” Harper, 2012 WL 734167, at 11 *2 (citation omitted). 12 As The Pacific Companies notes, Mr. Rothschild “failed to submit an affidavit, which is 13 fatal” to his request. ECF No. 53 at 1. More importantly, “[a]n adverse judicial ruling is not an 14 adequate basis for recusal.” Stebbins v. Polano, No. 21-CV-04184-JSW, 2021 WL 8532245, at 15 *1 (N.D. Cal. Oct. 22, 2021). The party requesting recusal pursuant to Section 144 must prove 16 facts “that fairly support the contention that the judge exhibits bias or prejudice directed toward a 17 party that stems from an extrajudicial source.” United States v. Sibla, 624 F.2d 864, 868 (9th Cir. 18 1980); see Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1388 (9th Cir. 1988) (defining an 19 extrajudicial source as a source other than “conduct or rulings made during the course of the 20 proceeding”). “Absent some evidence of bias or prejudice originating outside of a proceeding, 21 favoritism or antagonism exhibited in a judge’s rulings may be considered as a basis for 22 disqualification ‘only in the rarest circumstances.’” Stebbins, 2021 WL 8532245, at *1 (quoting 23 Liteky v. United States, 510 U.S. 540, 555 (1994)). 24 Mr. Rothschild claims that the Court has cast “dispersions” and “doubt” on him and made 25 “negative comments” about him. ECF No. 51 at 1–2. But he relies only on the Court’s orders and 26 recommendations in this case and in the Wagstaffe case. These are not extrajudicial sources. The 27 Court’s orders and recommendations were issued as part of its duty to screen Mr. Rothschild’s 1 deficiencies in Mr. Rothschild’s complaints and provided him with opportunities to fix those 2 deficiencies by filing amended complaints. In cases where Mr. Rothschild did not fix those 3 deficiencies, the undersigned recommended dismissal of the complaint. This is part of the process 4 for IFP litigants. That Mr. Rothschild has not liked the Court’s orders and recommendations does 5 not mean that recusal is appropriate in this instance. See Mikhak v. Univ. of Phoenix, No. 21-CV- 6 06919-CRB, 2022 WL 1150840, at *2 (N.D. Cal. Mar. 1, 2022), appeal dismissed sub nom. 7 Mikhak v. Univ. of Phoenix, Inc., No. 22-16201, 2022 WL 16831927 (9th Cir. Aug. 19, 2022) 8 (“Rulings that a party disagrees with do not demonstrate bias.”) 9 2. Section 455 10 Section 455 provides that “[a]ny justice, judge, or magistrate judge of the United States 11 shall disqualify himself in any proceeding in which his impartiality might reasonably be 12 questioned,” or “[w]here he has a personal bias or prejudice concerning a party.” 28 U.S.C. 13 § 455(a), (b)(1). “As with § 144, the provisions of § 455(a) & (b)(1) require recusal only if the 14 bias or prejudice stems from an extrajudicial source and not from conduct or rulings made during 15 the course of the proceeding.” Malberg v. Cashen, No. 22-CV-01788-BLF, 2022 WL 16839486, 16 at *2 (N.D. Cal. Nov. 9, 2022) (quoting Toth, 862 F.2d at 1388). And “as with § 144, it is 17 appropriate for a judge to deny a recusal motion if the motion is legally insufficient.” Id. 18 Recusal is not justified under Section 455(a) and (b)(1) for the same reasons given above 19 as to why recusal is not justified under Section 144. Mr. Rothschild’s Motion for Recusal is 20 “legally insufficient.” He relies only on extrajudicial sources in support of his request for recusal, 21 which are not a basis for disqualification. Accordingly, Mr. Rothschild’s Motion for Recusal is 22 DENIED. 23 III. CONCLUSION 24 For the foregoing reasons, The Pacific Companies’ Motion to Relate and for Consolidation 25 is GRANTED IN PART and DENIED IN PART. The Clerk of the Court is directed to reassign 26 Case No. 23-cv-02105-AGT to the undersigned. Once the case is reassigned, the Clerk shall set a 27 Case Management Conference for July 25, 2024, at 1:30 p.m. via Zoom videoconference. The 1 instructed that all future filings in any reassigned care are to bear the initials of the newly assigned 2 || judge immediately after the case number. Mr. Rothschild’s Motion for Recusal is DENIED. 3 IT IS SO ORDERED. 4 || Dated: April 26, 2024 > po 6 Abe rire 7 LI¥A 4. CISNEROS Uhit¢d States Magistrate Judge 8 9 10 11 12

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