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Krain v. Kahn

filed*fn*: December 1, 1992.

LAWRENCE C. KRAIN, M.D., PLAINTIFF-APPELLANT,
v.
ALLEN KAHN, M.D., ET AL., DEFENDANTS, AND HERBERT FORMAN, M.D., SEYMOUR SIEGEL, M.D., HAROLD VISOTSKY, M.D., IRVING KAGEN, M.D., JACK BERGER, M.D., AND LESLIE LEE, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Central District of California. D.C. No. CV-90-305-LEW. Laughlin E. Waters, Senior District Judge, Presiding

Before: Fletcher and Canby, Circuit Judges, and Reed,**fn** District Judge.

MEMORANDUM AND ORDER

Plaintiff-Appellant Lawrence S. Krain appeals from a Judgement of dismissal entered by the district court pursuant to Fed.R.Civ.P. 54(b) in favor of the defendants-appellees Herbert Forman, M.D., Seymour Siegel, M.D., Harold Visotsky, M.D., Irving Kagen, M.D., Jack Berger, M.D., and Leslie Lee. Previously, appellant appealed an earlier district court judgment of dismissal of his claims against the defendant doctors. This Court originally affirmed the district court's earlier decision, but then vacated its memorandum decision and remanded to allow the district court to address its initial failure to make a Rule 54(b) determination.

On February 21, 1992, in accordance with our remand order, the district court issued an order finding that "the Court makes a determination pursuant to Fed.R.Civ.P. 54(b) that there is no just reason for delay and directs entry of judgment dismissing all claims against [appellees]."

In response to the Court's order filed August 12, 1992, appellant filed his opening brief on August 21, 1992. Appellees filed their opening brief, pursuant to Court extension, on October 19, 1992. Appellant did not file a reply brief. We now address the merits of the appeal.

Propriety of Rule 54(b) Ruling

The district court has exclusive discretion in deciding whether to enter judgment on fewer that all the claims and parties under Fed.R.Civ.P. 54(b). Purdy Mobile Homes, Inc. v. Champion Home Builders, 594 F.2d 1313 (9th Cir. 1979); Illinois Tool Works, Inc. v. Brunsing, 378 F.2d 234 (9th Cir. 1967). The appellate court will uphold the district court's decision to enter judgment under Rule 54(b) absent an abuse of discretion. Davis v. Fendlen, 650 F.2d 1154 (9th Cir. 1981).

Appellant argues that the district court did not have jurisdiction to enter judgment under Rule 54(b). He alleges that Judge Waters, the district Judge, has a conflict of interest with appellant because appellant has a case pending against Judge Waters. We reject this argument. A Judge is not disqualified by a litigant's suit against him. Toyota of Berkeley v. Automobile Salesmen's Union, Local 1095 834 F.2d 751 (9th Cir 1987) cert. denied 486 U.S. 1043 (1988); U.S. v. Studley, 783 F.2d 934, 940 (9th Cir. 1986).

Second, appellant alleges that Judge Waters is a Republican and an anti-semite. The fact that Judge Waters is a Republican does not create a conflict of interest. As to the claim of anti-semitism, there is not even a scintilla of evidence substantiating such a claim. Appellant's mere accusation of anti-semitism does not entitle appellant to a reversal.

Next, appellant argues that other panels of this Circuit faced with the same 54(b) issue we face concluded that the district Judge could not enter judgment under 54(b). Appellant, however, cites no cases or other authority supporting this allegation. Therefore, we reject this contention.

Finally, appellant argues that because Judge Waters never held a competency hearing as to appellant's competency, the district court did not have jurisdiction to enter judgment under Rule 54(b). We reject this argument. Appellant never requested a competency hearing. Along the same lines, no party suggested that the district court conduct a competency hearing or that appellant was incompetent to proceed on any basis. In absence of notice that plaintiff desired a competency hearing, the district court did not have any information which would have provided the basis to hold a competency hearing.

Appellant might argue that his papers indicated that he might be incompetent. We reject this hypothetical argument as well. First, while the allegations in appellant's complaint and other briefs might be highly unlikely, possibly indicating incompetency, appellant's arguments have been quite lucid, analytical, and logical. That is, appellant's papers have been adequate. Therefore, we reject appellant's claim of incompetency.

Appellant has not shown that the district court abused its discretion in entering judgment under Fed.R.Civ.P. 54(b). Therefore, we conclude that the district court properly entered Rule 54(b) judgment as to appellees. As such, we conclude that we should reinstate our prior memorandum ...


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