1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

 To the extent plaintiff seeks disqualification and/or recusal of Magistrate Judge

Larson, the matter is not properly brought before the undersigned. 

United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

ZATREA EVANS,

Plaintiff,

 v.

ALLIED BARTON SECURITY SERVICES,

LLP, et al.,

Defendants.

 /

No. C-08-4993 MMC

ORDER DENYING PLAINTIFF’S MOTION

TO DISQUALIFY AND/OR RECUSE;

VACATING HEARING

Before the Court is plaintiff’s “Motion to Disqualify and/or Recuse the Honorable

Maxine M. Chesney and the Honorable James Larson,”1 filed February 3, 2010, pursuant to

28 U.S.C. § 144 and 28 U.S.C. § 455. Joint oppositions have been filed, respectively, by

defendants AlliedBarton Security Services, LLP and Kelly Murcray (collectively,

“AlliedBarton/Murcray”) and defendants Bayer HealthCare LLC and Christopher Loo 

(collectively, “Bayer/Loo”), to which oppositions plaintiff has filed a single reply. Having

read and considered the papers filed in support of and in opposition to the motion, the

Court hereby VACATES the hearing set for March 12, 2010, and rules as follows.

Plaintiff seeks disqualification and/or recusal based on the Court’s issuance of

rulings adverse to plaintiff. (See Singal Aff. at 2-10.) “[J]udicial rulings alone,” however,

Case 3:08-cv-04993-MMC Document 126 Filed 03/10/10 Page 1 of 3
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

“almost never constitute a valid basis for a bias or partiality motion”; rather, “opinions

formed by the judge on the basis of facts introduced or events occurring in the course of

the current proceedings, or of prior proceedings, do not constitute a basis for a bias or

partiality motion unless they display a deep-seated favoritism or antagonism that would

make fair judgment impossible” or “derive[] from an extrajudicial source.” See Liteky v.

United States, 510 U.S. 540, 555 (1994) (holding same test for “personal bias or prejudice”

applicable irrespective of whether motion brought under § 144 or § 455). “Almost

invariably,” rulings made during the course of judicial proceedings “are proper grounds for

appeal, not for recusal.” See id. at 555.

Even “judicial remarks during the course of a trial that are critical or disapproving of

or even hostile to counsel, the parties or their cases, ordinarily do not support a bias or

partiality challenge,” and will do so only where “they reveal such a high degree of

favoritism or antagonism as to make fair judgment impossible.” See id.; see, e.g., Berger

v. United States, 255 U.S. 22, 28 (1921) (finding disqualification proper where district

judge presiding over case against German-American defendants stated: “One must have

a very judicial mind, indeed, not to be prejudiced against the German-Americans in this

country[;] their hearts are reeking with disloyalty.”); Liteky, 540 U.S. at 555-56 (finding

asserted grounds for recusal “inadequate” where motion based on “judicial rulings, routine

trial administration efforts, and ordinary admonishments (whether or not legally

supportable) to counsel and witnesses”; citing, as example of disqualifying bias, statement

made by district judge in Berger); see also Berger, 255 U.S. at 30, 36 (holding judge as to

whom party seeks recusal under § 144 has “lawful right to pass upon the sufficiency of the

[ ] affidavit of his prejudice”). 

Here, the affidavit submitted by plaintiff in support of the instant motion is legally

insufficient as it relies exclusively on rulings made by the Court. Under such

circumstances, plaintiff’s challenge is to the ruling, not to the judge who made it. 

//

//

Case 3:08-cv-04993-MMC Document 126 Filed 03/10/10 Page 2 of 3
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

Accordingly, plaintiff’s Motion to Disqualify and/or Recuse the undersigned is

hereby DENIED.

IT IS SO ORDERED.

Dated: March 10, 2010 MAXINE M. CHESNEY

United States District Judge

Case 3:08-cv-04993-MMC Document 126 Filed 03/10/10 Page 3 of 3