Valente v. Keeler Williams Realty, Inc.

• Decision Date: 08 September 2017
• Docket Number: Case No.: 1:17-cv-00218 - LJO - JLT
• Parties: ROBERT VALENTE, Plaintiff, v. KEELER WILLIAMS REALTY, INC., Defendant.
• Court: U.S. District Court — Eastern District of California

ROBERT VALENTE, Plaintiff, v. KEELER WILLIAMS REALTY, INC., Defendant.

Case No.: 1:17-cv-00218 - LJO - JLT

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

September 8, 2017

ORDER DENYING PLAINTIFF'S MOTION TO DISQUALIFY (Doc. 4)

ORDER DISMISSING THE COMPLAINT WITH LEAVE TO AMEND (Doc.1)

In this action, the plaintiff alleges that he purchased a home in Tennessee in a housing development named for the founder of the KKK. (Doc. 1 at 3) In addition, Plaintiff asserts the home has "hate based and obscene images of a criminal nature in the artwork of the home's fireplace mantle." (Id.) He asserts many entities, including the real estate broker who handled the purchase for him, are liable for civil rights violations, deceit, negligent misrepresentation, constructive fraud, negligence, loss of consortium, intentional infliction of emotional distress, and negligent infliction of emotional distress. (See id. at 2-7) For the reasons set forth below, the complaint is dismissed with leave to amend.

I. Motion to Disqualify¹

As an initial matter, Plaintiff requests that the assigned magistrate judge "be disqualified under 28 U.S.C.A § 455(a)." (Doc. 4 at 1)

A. Legal Standards

Pursuant to 28 U.S.C. § 455(a), "[a]ny justice, judge, or magistrate [magistrate judge] of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." In addition, a magistrate judge "shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;

(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(i) Is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) Is acting as a lawyer in the proceeding;

(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;

(iv) Is to the judge's knowledge likely to be a material witness in the proceeding."

28 U.S.C.§ 455(b). Thus, "Section 455(a) covers circumstances that appear to create a conflict of interest, whether or not there is actual bias," while "Section covers situations in which an actual conflict of interest exists, even if there is no appearance of one." Herrington v. Sonoma County, 834 F.2d 1488, 1502 (9th Cir. 1987) (emphasis in original, citations omitted).

The purpose of Section 455 is "to avoid even the appearance of partiality." Liljeberg v. Health Serv. Acquisition Corp., 486 U.S. 847, 860 (1988) (citation omitted). Thus, the standard for disqualification "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. Studley, 783 F.2d 934, 939 (9th Cir. 1986) (internal quotation marks, citations omitted). The "reasonable person" is a "well-informed, thoughtful observer" and not an individual who is "hypersensitive or unduly suspicious." United Statesv. Holland, 519 F.3d 909, 913 (9th Cir. 2008) (internal quotations omitted).

Furthermore, disqualification pursuant to 28 U.S.C. § 455 is required only if the alleged bias stems "from an extra-judicial source." Toth v. Trans World Airlines, Inc., 862 F.2d 1381 (9th Cir. 1988). Thus, "conduct or rulings made during the course of the proceeding" alone will not support a motion to disqualify." Id.; see also Liteky v. United States, 510 U.S. 540, 553 (1994) ("judicial rulings alone almost never constitute a valid basis for a bias or partiality motion, because "they cannot possibly show reliance upon an extrajudicial source").

B. Discussion and Analysis

Plaintiff seeks recusal based upon the Court's prior order denying the motion to seal the action. (Doc. 4 at 2) Plaintiff disagrees with the order of the Court, asserting the persons who paced the artwork in the mantle of his home "were serious" and "[a] great deal of time and skill were employed." (Id.) He asserts "mischaracterizations" of the facts alleged, "demonstrates [the] Magistrate's bias." (Id. at 2-3) Further, he contends the Court failed to consider that he is a pro se litigant, and to "consider all pleadings in a favourable light." (Id. at 4) Thus, Plaintiff argues the order denying his request to seal demonstrates "an underlying bias that Plaintiff is prone to hyperbole and [his] civil rights claims are exaggerated." (Id. at 5)

Significantly, as noted above, disagreement with the prior order of the Court is not sufficient to support Plaintiff's motion for disqualification. The legal standards governing his request for the action to be sealed were explained, as were both the procedural and substantive deficiencies of the motion. (See Doc. 4) Further, his assertions that he did not use the word "image" in his complaint and the magistrate judge mischaracterized his allegations is clearly contradicted by the record, as Plaintiff alleged his "home contained hate based and obscene images." (Doc. 1 at 6) As a result, the record does not support a conclusion that a reasonable person would believe the magistrate judge has exhibited bias in the action.

C. Conclusion

Plaintiff has not identified any "extra-judicial source" for the alleged bias, and the order denying the motion to seal the action alone does not support his motion for disqualification. Therefore, Plaintiff's motion for disqualification is DENIED.

II. Sufficiency of the Complaint

The Court has a duty to dismiss a case at any time it determines an action fails to state a claim, "notwithstanding any filing fee that may have been paid." 28 U.S.C. § 1915e(2). Accordingly, a court "may act on its own initiative to note the inadequacy of a complaint and dismiss it for failure to state a claim." See Wong v. Bell, 642 F.2d 359, 361 (9th Cir. 1981) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure, § 1357 at 593 (1963)).

A. General Pleading Standards

General rules for pleading complaints are governed by the Federal Rules of Civil Procedure. A pleading stating a claim for relief must include a statement affirming the court's jurisdiction, "a short and plain statement of the claim showing the pleader is entitled to relief; and . . . a demand for the relief sought, which may include relief in the alternative or different types of relief." Fed. R. Civ. P. 8(a). The Federal Rules adopt a flexible pleading policy, and pro se pleadings are held to "less stringent standards" than pleadings by attorneys. Haines v. Kerner, 404 U.S. 519, 521-21 (1972).

A complaint must give fair notice and state the elements of the plaintiff's claim in a plain and succinct manner. Jones v. Cmty Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). Further, a plaintiff must identify the grounds upon which the complaint stands. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). The Supreme Court noted,

Rule 8 does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.

Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (internal quotation marks and citations omitted). Conclusory and vague allegations do not support a cause of action. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). The Court clarified further,

[A] complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." [Citation]. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. [Citation]. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. [Citation]. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'

Iqbal, 566 U.S. at 678 (citations omitted). When factual allegations are well-pled, a court should assume their truth and determine whether the facts would make the plaintiff entitled to relief; legal conclusions in the pleading are not entitled to the same assumption of truth. Id.

B. Heightened Pleading Standards

When the complaint asserts that the defendants engaged in "a unified course of fraudulent conduct" and relies upon that conduct to support a claim, the claim is "grounded in fraud" and must satisfy the particularity requirement of Rule 9. Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009). The heightened pleading standards apply even where fraud is not an element of a claim. See Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1105 (9th Cir. 2003). Rule 9(b) requires the complaint to state "with particularity the circumstances constituting fraud." Fed. R. Civ. P. 9(b). The factual allegations must be "specific enough to give defendants...