Raiser v. San Diego County

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 AARON RAISER, Case No.: 19-cv-0751-GPC-KSC 12 Plaintiff, ORDER: 13 v. (1) DENYING PLAINTIFF’S 14 SAN DIEGO COUNTY, et al., MOTION FOR RECUSAL; AND 15 Defendants. (2) SUA SPONTE GRANTING THE 16 FILING OF SUR-REPLY 17 [ECF Nos. 187, 190, 196] 18 19 INTRODUCTION 20 Before the Court is Plaintiff’s Motion for Recusal, initially filed on May 21, 2021, 21 and amended on May 24, 2021. ECF Nos. 187, 190. Defendants filed an Opposition, 22 ECF No. 192, and Plaintiff filed a Reply afterwards,1 ECF Nos. 194, 197. Upon 23 considering the moving documents and the case record, the Court DENIES Plaintiff’s 24 25 26 1 Plaintiff moved to amend/correct the Reply brief, see ECF No. 196, which the Court accepts and thus considers the Amended Reply, ECF No. 197. 27 1 Motion for Recusal, but sua sponte GRANTS the filing of Plaintiff’s proposed Sur- 2 Reply, ECF No. 173, so that the Sur-Reply is deemed filed and taken into consideration. 3 DISCUSSION 4 The standard for recusal under 28 U.S.C. §§ 144, 455 is “whether a reasonable 5 person with knowledge of all the facts would conclude that the judge’s impartiality might 6 reasonably be questioned.” Mayes v. Leipziger, 729 F.2d 605, 607 (9th Cir. 1984) 7 (quoting United States v. Nelson, 718 F.2d 315, 321 (9th Cir. 1983)). The alleged 8 prejudice must result from an extrajudicial source; a judge’s prior adverse ruling is not 9 sufficient cause for recusal. See id. Here, Plaintiff does not allege prejudice from an 10 extrajudicial source. Instead, Plaintiff claims that the Court is biased against him because 11 he was not permitted to file a sur-reply, whereas in other cases which the Court has 12 adjudicated, the litigants were given permission. For the reasons stated herein, the Court 13 concludes that Plaintiff has failed to prove prejudice from an extrajudicial source or that 14 the Court’s impartiality might reasonably be questioned. 15 With respect to the filing of a sur-reply, the Local Civil Rules do not provide for 16 the filing of sur-replies but district courts have the discretion to permit or preclude such a 17 filing. See, e.g., United States ex rel Meyer v. Horizon Health Corp., 565 F. 3d 1195, 18 1203 (9th Cir. 2009). And although this Court has granted permission in some cases, this 19 Court has also denied sur-reply briefings in other cases. See, e.g., SEC v. Schooler, No. 20 3:12-CV-2164-GPC-JMA, 2014 WL 12026076, at *2 (S.D. Cal. Oct. 20, 2014); Cottle- 21 Banks v. Cox Commc’ns, Inc., No. 10CV2133-GPC WVG, 2013 WL 2244333, at *3 22 (S.D. Cal. May 21, 2013). 23 In granting leave to file a sur-reply, what matters are the reasons offered to justify 24 the filing of a sur-reply and a review of the record to determine whether those reasons 25 warrant a sur-reply. Discretion for leave to file a sur-reply should be exercised in favor 26 of allowing a movant’s request for a sur-reply only where a valid reason for additional 27 1 briefing exists, such as where the reply brief introduces new evidence and argument. See 2 United States v. Venture One Mortg. Corp., No. 13-CV-1872-W (JLB), 2015 WL 3 12532139, at *2 (S.D. Cal. Feb. 26, 2015) (citations omitted). 4 In this case, the Court initially rejected the proposed sur-replies because it 5 concluded that they were unnecessary in resolving the summary judgment. For example, 6 Plaintiff’s sur-reply responds to Defendants’ claims on whether Plaintiff complied with 7 the Chambers Rules. Specifically, Defendants’ reply brief asserted that Plaintiff failed to 8 follow the Chambers Rules as to the content of his opposition to the statement of 9 undisputed facts and that the Court should grant summary judgment on that basis. ECF 10 No. 167 at 2–4. In support, Defendants argued that Plaintiff submitted a “prolix mass of 11 responses that throw in legal argument, objections, case cites, and citations to a self- 12 serving declaration.” Id. at 2–3. The Court disagrees with Defendants’ description. 13 Under the Court’s Chambers Rules governing motions for summary judgment, where a 14 fact is disputed, the opposing party must state “the reasons for the dispute and cite the 15 evidence that supports the position that the fact is controverted.” Plaintiff’s opposition 16 does that, is not needlessly prolix, and to a limited extent presents argument that should 17 be made in the memorandum of points and authorities in opposition to the motion for 18 summary judgment. Overall, Defendants’ separate statement and Plaintiff’s opposition 19 allow the Court to pinpoint the disputed material facts and the basis for the dispute. See 20 Chambers Rules 3 (discussing how the “Separate statements are merely used as an aid to 21 assist the Court in pinpointing the material facts”). In view of this record, the Court 22 concluded that a sur-reply was unnecessary on the argument that Plaintiff had not 23 complied with the Court’s Chambers Rules. 24 Further, Plaintiff’s proposed sur-replies state the following: “As to qualified 25 immunity at ECF 167 3:11 – 4:19 Plaintiff cited to many more cases than simply 2 cases 26 showing on multiple fronts qualified immunity is improper, and did some very good legal 27 1 analysis of the issue, none of which Defendants address, and they only ignore it.” ECF 2 No. 173 at 4; ECF No. 177-2 at 4. Having read the briefs already filed, the Court is 3 capable of assessing whether Plaintiff cited to more than 2 cases or not, whether 4 Plaintiff’s legal analysis was “very good” or not, and whether Defendants “ignored” 5 Defendants’ arguments or not. A sur-reply would have added nothing to the Court’s 6 analysis. 7 Plaintiff also points to certain out-of-circuit cases and an unpublished district court 8 case that were cited in the reply by the Defendants as justifying a sur-reply. ECF No. 173 9 at 8–10. The cases do not present new legal arguments or evidence. At the same time, 10 upon further inspection, the court finds that certain cases cited by Defendants in their 11 reply brief, such as United States v. Wallace, 937 F. 3d 130, 139-140 (2nd Cir. 2019), 12 cert. denied, 140 S.Ct. 2551 (2020), reh’g denied, 140 S.Ct. 2799 (2020), and United 13 States v. Bustamonte, No. 1:19-CR-00172-DCN, 2021 WL 861702, at *1 (D. Idaho Mar. 14 8, 2021), are salient to the motion for summary judgment issues, and, upon 15 reconsideration, the Court will exercise its discretion to permit Plaintiff’s sur-reply, ECF 16 No. 173, to be filed to address these cases. 17 Ultimately, Plaintiff has not demonstrated that the Court’s impartiality might 18 reasonably be questioned in the light of the facts of this case. Plaintiff has not presented 19 any extrajudicial evidence of bias and has relied on a claim of disparity in treatment 20 based upon a prior adverse ruling. However, a court ruling does not ordinarily evidence 21 bias. See Clemens v. U.S. Dist. Ct. for Cent. Dist. of California, 428 F.3d 1175, 1178–79 22 (9th Cir. 2005) (discussing matters not ordinarily sufficient for recusal, which includes 23 “prior rulings in the proceeding, or another proceeding, solely because they were 24 adverse”); cf. Raiser v. Ventura Coll. of L., No. CV 09-254 RGK, 2014 WL 12774847, at 25 *1 (C.D. Cal. July 25, 2014) (“All of plaintiff’s complaints relate to the judge’s or the 26 Clerk’s Office handling of his motions. As such, they provide no basis for 27 1 || disqualification.”). Finally, given the Court’s reconsideration of its earlier ruling to 2 || ensure that Plaintiff was given a full opportunity to respond to cases newly raised in 3 || Defendants’ reply brief, Plaintiff cannot demonstrate any prejudice. 4 CONCLUSION 5 For the reasons discussed above, the Court DENIES Plaintiff's Motion for Recusal 6 upon sua sponte reconsideration, GRANTS the filing of Plaintiff's proposed Sur- 7 ||Reply, ECF No. 173. Relatedly, the Court VACATES the hearing on the matter, 8 ||currently scheduled for July 30, 2021. 9 IT IS SO ORDERED. 10 11 Dated: July 8, 2021 72 12 Hon. athe Coke 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ; 28 19-cv-0751-GPC-KSC