McCoy v. SC Tiger Manor, LLC

LYDIA McCOY v. SC TIGER MANOR, LLC, et al.

CIVIL ACTION NO. 19-723-JWD-SDJ

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

January 28, 2021

NOTICE

Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court.

In accordance with 28 U.S.C. § 636(b)(1), you have fourteen (14) days after being served with the attached Report to file written objections to the proposed findings of fact, conclusions of law and recommendations therein. Failure to file written objections to the proposed findings, conclusions, and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions of the Magistrate Judge which have been accepted by the District Court.

ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

Signed in Baton Rouge, Louisiana, on January 28, 2021.

/s/_________

SCOTT D. JOHNSON

UNITED STATES MAGISTRATE JUDGE

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Before the Court are a Motion for Disqualification pursuant to 28 U.S.C. §§ 144 and 455 (R. Doc. 106), filed on November 30, 2020, and a Motion to Change Venue (R. Doc. 107), filed on December 1, 2020, both by pro se Plaintiff Lydia McCoy. Defendant Equifax Information Services LLC ("Equifax") filed oppositions to both Motions (R. Docs. 124, 126). For the reasons set forth below, it is recommended that Plaintiff's Motions be denied.

I. Background

Plaintiff filed her Complaint (R. Doc. 1) against Defendants, SC Tiger Manor, LLC; Equifax; Experian Information Solutions, Inc. ("Experian"); and IQ Data Int., Inc., on October 16, 2019, in which she alleges Defendants violated the Fair Credit Reporting Act and the Fair Debt Collections Practices Act.¹ The dispute arises from an alleged debt Plaintiff incurred while a resident at Tiger Manor Apartments, which debt subsequently was reported to the "major credit bureaus."² Plaintiff disputes the validity of the debt.³

The parties currently are engaged in discovery. Multiple motions to compel currently are pending before this Court, four filed by Plaintiff (R. Docs. 78, 85, 86, 119) and one filed byDefendant Experian (R. Doc. 116), as are myriad other discovery-related motions, all of which have been filed by Plaintiff.⁴ In the midst of this contentious discovery process, Plaintiff filed the instant Motion for Disqualification, seeking to disqualify the entire Middle District of Louisiana,⁵ as well as the Motion to Change Venue, seeking to transfer this litigation to the District of Oregon.⁶ Both Motions are addressed, in turn, below.

II. Law and Analysis

A. Motion for Disqualification

In her Motion for Disqualification, Plaintiff requests that "this district court / judicial district" disqualify itself "due to prejudice against Plaintiff."⁷ According to a "Declaration" by Plaintiff attached to her Motion, Plaintiff claims that this District Court is prejudiced against her based on a prior case she filed with this Court "against local public officials" in which, according to Plaintiff, this Court "denied [her] access to courts by unlawfully suppressing [her] legal action."⁸ Plaintiff further alleges that this Court improperly dismissed that prior action with prejudice and that after that ruling was reversed on appeal by the Fifth Circuit Court of Appeal, "the district court started again to misapply the law to the facts, keep unseeing the facts, and do anything it could in order to asphyxiate [her] legal action against corrupt local public officials, in order to shield them from any liability and public embarrassment."⁹

With regard to her grievances against this Court pertaining to the current litigation, Plaintiff claims that while she has been trying "to obtain responsive discoverable information" in this case, "the district court has been ignoring [her] filings, delaying to address them for as long as possible, dismissing [her] evidence and assertions, and openly favoring [her] opponents that have been engaged in discovery obstruction."¹⁰ Per Plaintiff, this Court "has a preconceived opinion regarding [her] and [her] action, and has already made up its mind and ruled on [her] case, although there is no final judgment yet."¹¹

In its Opposition, Defendant Equifax responds "that Plaintiff has failed to produce any shred of evidence of a bias, impropriety, or other valid reason for this Court to recuse itself (over ten months into this case)."¹² In opposing both disqualification and transfer, Equifax further asserts that "personal displeasure does not afford [Plaintiff] the right to forum shop."¹³

Plaintiff seeks recusal here under either 28 U.S.C. § 144 or 28 U.S.C. § 455.¹⁴ According to § 144:

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

Courts have held that a pro se litigant may not obtain disqualification of a presiding judge under § 144 because a pro se litigant cannot meet the plain language of the statute requiring "a certificate of counsel of record stating that it [the affidavit in support of recusal] is made in good faith." See Williams v. Magnolia Café, No. 18-1020, 2019 WL 7343507, at *2 (M.D. La. Dec. 30, 2019) (finding "recusal under § 144 is not applicable" because "a pro se litigant cannot meet the plain language of the statute requiring 'a certificate of counsel of record stating that it [the affidavit in support of recusal] is made in good faith'"); Gibson v. Gusman, No. 14-2273, 2014 WL 6469507, at *3 (E.D. La. Nov. 17, 2014) (concluding that "a pro se litigant may not use 28 U.S.C. § 144 as a means to seek recusal"); Larsen v. "Eleged" Fish & Wildlife Serv./or Outlaws, No. 04-1919, 2004 WL 1698670, at *1 (E.D. La. July 28, 2004) ("§ 144 is inapplicable in the case of a pro se litigant"). As such, Plaintiff here cannot seek disqualification of any of the Judges assigned to this case under § 144.

The second statute governing disqualifications is 28 U.S.C. § 455, which provides, in pertinent part:

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He 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....

"Judicial disqualification is solely a question of law." Larsen, 2004 WL 1698670, at *1, citing In re City of Houston, 745 F.2d 925, 927 (5th Cir. 1984). "The burden of proof on the litigant in this regard is substantial, because a judge is presumed to be impartial." Id., citing NJIE v. Lubbock County Tex., 999 F.Supp. 858, 860 (N.D. Tex. 1998). In determining whether recusal is appropriate under § 455, the Fifth Circuit has stated that the standard is an objective one, with the "relevant inquiry" being "whether a reasonable man, were he to know all the circumstances,would harbor doubts about the judge's impartiality. Trevino v. Johnson, 168 F.3d 173, 178 (5th Cir. 1999) (internal quotations omitted); Green v. Stevenson, No. 12-432, 2012 WL 2154123, at *3 (E.D. La. June 13, 2012). This showing must be based on specific facts so as to avoid giving a party a "random veto over the assignment of judges." Capizzo v. State of Louisiana, No. 99-138, 1999 WL 539439, at *1 (E.D. La. July 22, 1999) (citation omitted). Also, a § 455 claim "must not be so broadly construed that it becomes, in effect, presumptive, so that recusal is mandated upon the merest unsubstantiated suggestion of personal bias or prejudice." Green, 2012 WL 2154123, at *3, citing U.S. v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993). "Judicial rulings alone almost never constitute a valid basis for a bias or partiality motion." U.S. v. Landerman, 109 F.3d 1053, 1066 (5th Cir. 1997).

Plaintiff here, rather than seeking disqualification of a particular judge, instead seeks disqualification of this entire judicial district. Because the statutes invoked do not contemplate such disqualification, and because the undersigned has no knowledge of or connection with the prior case in this Court that Plaintiff claims is the root of the discrimination she allegedly is suffering, the Court here will—and can—only focus on the instant litigation and the individual Judges assigned thereto.

First, Plaintiff has wholly failed to allege any facts to support her belief that there is any bias or prejudice against her by the District Judge assigned to this case because he has not yet issued any substantive rulings in this matter.¹⁵ Similarly, Plaintiff has in no way shown bias or prejudice against her by Magistrate Judge Wilder-Doomes, to whom the case originally was assigned before being transferred to the undersigned. None of Plaintiff's alleged grievancesinvolve any of the rulings by Magistrate Wilder-Doomes prior to this case being transferred to the undersigned. Further, none of the Judges currently or previously assigned to this case had any involvement with the prior litigation that Plaintiff referenced as the basis for the instant Motion.

Plaintiff's litany of grievances, rather, primarily pertain to this Court's handling...