729 F.2d 605 (9th Cir. 1984), 82-6002, Mayes v. Leipziger

Docket Nº:82-6002.
Citation:729 F.2d 605
Party Name:Raisa R. MAYES, Plaintiff-Appellant, v. David A. LEIPZIGER and Levy, Leipziger & Norminton, Defendants-Appellees.
Case Date:March 27, 1984
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 605

729 F.2d 605 (9th Cir. 1984)

Raisa R. MAYES, Plaintiff-Appellant,

v.

David A. LEIPZIGER and Levy, Leipziger & Norminton,

Defendants-Appellees.

No. 82-6002.

United States Court of Appeals, Ninth Circuit

March 27, 1984

        Argued Dec. 8, 1983.

Page 606

        Bruce Wexler, Sidney S. Bobbe, New York City, Walter K. Rosen, MacCarley, Phelps & Rosen, Toluca Lake, Cal., for plaintiff-appellant.

        Barry Kaiman, Lewis, D'Amato, Brisbois & Bisgard, Los Angeles, Cal., for defendants-appellees.

        Appeal from the United States District Court for the Central District of California.

        Before SKOPIL, FERGUSON and CANBY, Circuit Judges.

        SKOPIL, Circuit Judge:

        Mayes appeals from an order of the district court dismissing her legal malpractice complaint against her former attorney. We conclude that the court improperly denied Mayes' right to amend. We reverse.

        FACTS AND PROCEEDINGS BELOW

        In 1976 Mayes, a New York resident, brought an action in federal district court in California. A California attorney represented her. Dissatisfied with the result, Mayes retained another California attorney, David Leipziger, to represent her in a motion for new trial. When the motion was denied, Leipziger agreed to pursue an appeal in the California case, but failed to file a timely notice of appeal. Mayes sued Leipziger in New York for legal malpractice, but the district court dismissed for lack of personal jurisdiction. The Court of Appeals for the Second Circuit affirmed. Mayes v. Leipziger, 674 F.2d 178 (2d Cir.1982).

        Shortly thereafter, Mayes brought this action in California alleging the same cause of action. Mayes moved to have the case

Page 607

reassigned to another judge because Judge Real previously heard Mayes' 1976 case. Leipziger moved to dismiss the action under Fed.R.Civ.P. 12(b)(6) on the ground that the action was barred by California's one year statute of limitations for legal malpractice. Cal.Civ.Proc.Code Sec. 340.6. Mayes, in opposition to the motion, claimed that the New York action equitably tolled the statute of limitations. She requested that if the complaint was dismissed, leave to amend be granted to allege equitable tolling.

        The district court granted Leipziger's motion and ordered the complaint dismissed without leave to amend and the action dismissed with prejudice. The court then denied Mayes' motion to reassign on the ground that it was moot.

        This appeal followed.

        ISSUES

  1. Did the district court err in not reassigning the case to another judge?

  2. Did Mayes have a right to amend her complaint?

            DISCUSSION

  3. Recusal

            The standard for recusal is "whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned." United States v. Nelson, 718 F.2d 315, 321 (9th Cir.1983). To provide grounds for recusal, prejudice must result from an extrajudicial source. United States v. Azhocar, 581 F.2d 735, 739 (9th Cir.1978), cert. denied, 440 U.S. 907, 99 S.Ct. 1213, 59 L.Ed.2d 454 (1979). A judge's previous adverse ruling alone is not sufficient bias. Nelson, 718 F.2d at 321. We find no abuse of...

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