United States District Court, W.D. Washington, Seattle
C. COUGHENOUR, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiff's motion to
vacate order pursuant to Federal Rule of Civil Procedure
60(b), to reopen the case, and for recusal (Dkt. No.
Having thoroughly considered the parties' briefing and
the relevant record, the Court finds oral argument
unnecessary and hereby DENIES the motion for the reasons
November 2, 2018, the Court dismissed Plaintiff's claims
without prejudice, and entered judgment dismissing
Plaintiff's complaint. (Dkt. Nos. 28, 29.) On January 22,
2019, Plaintiff moved to vacate the judgment and for leave to
amend his complaint, which the Court denied. (Dkt. Nos. 30,
32.) Plaintiff filed a motion for reconsideration, which the
Court also denied. (Dkt. Nos. 33, 35.)
appealed the Court's orders dismissing his complaint, his
motion to vacate, and his motion for reconsideration, along
with the Court's judgment dismissing his complaint. (Dkt.
No. 39.) Plaintiff moved for leave to appeal in forma
pauperis (“IFP”). (Dkt. No. 38.) The report
and recommendation (“R&R”) of the Honorable
Brian A. Tsuchida, United States Magistrate Judge,
recommended that Plaintiff's request be denied, finding
that Plaintiff's appeal was not taken in good faith.
(See Dkt. No. 42.) Objections to the R&R were
due by April 26, 2019. (Id.) Plaintiff's
objections were filed with the Court on April 29, 2019
although they were postmarked on April 26. (Dkt. No. 49.) On
April 30, 2019, the Court adopted the R&R and denied
Plaintiff's request to appeal IFP. (Dkt. No. 43.)
Plaintiff now moves to vacate the Court's order adopting
the R&R, to reopen his case, and for recusal. (Dkt. No.
Motion to Vacate
contends that he inadvertently filed his objections to the
R&R after the deadline had passed, as he was not in
Washington between April 12 and April 30, relied on a family
member to send his objections to the R&R, and in his
experience court filings are treated as timely when
postmarked by the filing deadline under the United States tax
code. (See id. at 1.) A court may relieve a party
from an order for “mistake, inadvertence, surprise, or
excusable neglect.” Fed.R.Civ.P. 60(b)(1). The Court
finds that Plaintiff's alleged inadvertence in failing to
timely file his objections to the R&R does not merit
vacation of the Court's order adopting the R&R
pursuant to Federal Rule of Civil Procedure 60(b)(1).
also argues that vacation of the Court's order is merited
under Federal Rule of Civil Procedure 60(b)(3). (Dkt. No. 46
at 2-4.) A court may relieve a party from an order for
“fraud . . ., misrepresentation, or misconduct by an
opposing party.” Fed.R.Civ.P. 60(b)(3). Plaintiff
alleges that he “believes that the Honorable Brian A.
Tsuhida, Chief Magistrate Judge, is doing something
improper” and that “it is the belief of the Pro
Se Plaintiff that the Honorable Brian A. Tsuchida, Chief U.S.
Magistrate Judge in connection with
Defendant Capital One Bank's counsels' non-motion
response and declaration . . . is
misrepresenting Pro Se
Plaintiff's IFP filing(s) and Complaint(s) in an
erroneous and exaggerated matter [sic] and is not presenting
it in a proper context as both were filed.” (Dkt. No.
46 at 2-3) (emphasis in original). Plaintiff's
speculative allegations of fraud or misrepresentation by
Judge Tsuchida and Defendant are insufficient to merit relief
under Federal Rule of Civil Procedure 60(b)(3).
remainder of Plaintiff's arguments challenge Judge
Tsuchida's evaluation of his IFP application.
(See Dkt. No. 46 at 2-4.) The Court construes these
arguments as a motion for reconsideration. Motions for
reconsideration are generally disfavored. W.D. Wash. Local
Civ. R. 7(h)(1). Reconsideration is only appropriate where
there is “manifest error in the prior ruling or a
showing of new facts or legal authority which could not have
been brought to [the Court's] attention earlier with
reasonable diligence.” Id. “A motion for
reconsideration should not be used to ask the court to
rethink what the court had already thought through-rightly or
wrongly.” Premier Harvest LLC v. AXIS Surplus
Insurance Co., No. C17-0784-JCC, Dkt. No. 61 at 1 (W.D.
Wash. 2017) (quoting U.S. v. Rezzonico, 32 F.Supp.2d
1112, 1116 (D. Ariz. 1998)). Plaintiff argues that Judge
Tsuchida erred in evaluating Plaintiff's present
financial status and his responses on the IFP application.
(See Dkt. No. 46 at 2-3.) But Plaintiff has not
identified a manifest error in the R&R, or presented new
facts or legal authority meriting reconsideration. Moreover,
Judge Tsuchida's primary conclusion was that
Plaintiff's appeal was not taken in good faith-not that
Plaintiff failed to allege indigency. (See Dkt. No.
Plaintiff has not established a ground meriting vacation or
reconsideration of the Court's order adopting the R&R
and denying his request to proceed IFP on appeal, and his
motion is DENIED on this ground.
Motion for Recusal
asks the Court to recuse itself from the case pursuant to 28
U.S.C. § 455(a). (Dkt. No. 46 at 4-5.) “Any
justice, judge, or magistrate judge of the United States
shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.” 28 U.S.C.
§ 455(a). “[A] judge's prior adverse ruling is
not sufficient cause for recusal.” Taylor v.
Regents of Univ. of California, 993 F.2d 710, 712 (9th
Cir. 1993) (quoting United States v. Studley, 783
F.2d 934, 939 (9th Cir. 1986)). Plaintiff asserts that
recusal is warranted because the Court has made several
adverse rulings against him. However, that is not a valid
basis for recusal. See Taylor, 993 F.2d at 712.
Therefore, Plaintiff's motion is DENIED on this ground.
The Clerk is DIRECTED to refer Plaintiff's motion for
recusal to Chief United States District Judge Ricardo S.
Martinez for further consideration. See W.D. Wash.
Local Civ. R. 3(g).