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Magdaluyo v. MGM Grand Hotel, LLC

United States District Court, D. Nevada

July 16, 2018

DANTE B. MAGDALUYO, JR., Plaintiff
v.
MGM GRAND HOTEL, LLC, Defendant

          ORDER SUSTAINING PLAINTIFF'S OBJECTIONS IN PART AND DENYING PLAINTIFF'S MOTION FOR “RECLARIFICATION” [ECF NOS. 220, 221]

          ANDREW P. GORDON UNITED STATES DISTRICT JUDGE

         In October 2014, pro se plaintiff Dante Magdaluyo filed this lawsuit against MGM Grand Hotel, alleging that MGM directed its employees to engage in an extended campaign of harassment against him. In his second amended complaint, Magdaluyo brought claims for discrimination and retaliation under Title VII of the 1964 Civil Rights Act, defamation, workplace violence, intentional infliction of emotional distress (IIED), and numerous counts of invasion of privacy. ECF No. 21.

         In February 2017, I granted MGM's motion for summary judgment on Magdaluyo's Title VII, defamation, workplace violence, and IIED claims, and on all but one of his invasion of privacy claims. ECF No. 159. I construed one of those claims as alleging intrusion upon seclusion, and denied MGMs' summary judgment motion as to that claim. The parties eventually settled that claim and Magdaluyo voluntarily dismissed it, with “each party to bear its own attorneys' fees and costs.” ECF Nos. 199, 200.

         Upon entry of the clerk's judgment, MGM filed its bill of costs under Rule 54(d). ECF No. 204. Weeks later Magdaluyo filed his own bill of costs and an objection to MGM's. ECF Nos. 205, 208. The Clerk awarded $9, 396.70 in costs to MGM and nothing to Magdaluyo. ECF Nos. 214, 216. Magdaluyo filed an objection and “motion for reclarification” disputing both of the clerk's awards. ECF Nos. 220, 221.

         Because Magdaluyo is not the prevailing party in this case and because his bill of costs was untimely, I overrule Magdaluyo's objections to the clerk's decision to not award his costs. And while MGM is entitled to some of its costs, various considerations weigh in favor of awarding only a portion of the amount MGM seeks. So I sustain in part Magdaluyo's objections to MGM's bill of costs and deny the motion for “reclarification” as moot.

         I. DISCUSSION

         A. Peremptory Challenge

         Before I address Magdaluyo's specific objections, I must first dispose of his contention that I am biased against him and should be removed from this case. In April 2017, Madgaluyo filed a “Motion for Reclarification of Plaintiff's Peremptory Challenge of Judge, ” in which he conclusorily contended that I was prejudiced against him. ECF No. 174. I denied that motion, explaining that “the plaintiff does not have a right to make a peremptory change of the judge. That mechanism exists in the Nevada state court system, not in this federal court.” ECF No. 177.

         Magdaluyo now contends that denying his peremptory challenge shows that I am biased against him for three reasons. Construed liberally, he first argues that I should have treated his motion as one for disqualification under 28 U.S.C. § 455. And because I failed to notice that he was seeking this relief, and not a peremptory challenge, I have shown my bias against him. He also contends that I engaged in ex parte communications with MGM before ruling on his peremptory challenge motion. Finally, Magdaluyo argues that my summary judgment ruling shows bias against him. He therefore contends that I should not have been the judge presiding over this case, and my summary judgment ruling in favor of MGM should not have been entered.

         Even if I were to consider Magdaluyo's motion as one for disqualification, I would have denied it. Under 28 U.S.C. § 455, “any . . . judge . . . shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” I should also disqualify myself if I have a “personal bias or prejudice concerning a party.” 28 U.S.C. § 455(b)(1). A motion to disqualify “must be decided by[] the very judge whose impartiality is being questioned.” In re Bernard, 31 F.3d 842, 843 (9th Cir. 1994). I must determine “whether a reasonable person with knowledge of all the facts would conclude that my] impartiality might reasonably be questioned.” Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir. 2008) (citing United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997)). Alleged bias cannot be based solely on information gained in the course of judicial proceedings; it must arise from an extra-judicial source. Id. (citing Liteky v. United States, 510 U.S. 540, 554-56 (1994)). “Judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.” In re Focus Media, Inc., 378 F.3d 916, 930 (9th Cir. 2004).

         My denial of Magdaluyo's peremptory challenge motion does not implicate my impartiality. His initial attempt to disqualify me included only the conclusory statement that I am “prejudiced” against him. See ECF Nos. 164, 174. He did not provide any evidence of bias arising from extra-judicial sources.

         Magdaluyo's new assertions of bias would also not cause a reasonable person to question my impartiality. Magdaluyo alleges that I engaged in ex parte communications with MGM when I denied his peremptory challenge motion. Magdaluyo apparently told MGM's counsel that he was going to file a peremptory challenge. ECF No. 220 at 11. MGM's counsel responded that peremptory challenges of judges could take place only in state court, not federal court. Because I later denied his motion for that same reason, Magdaluyo concludes that MGM must have told me to rule that way. But the fact that I and MGM's counsel both relayed the same accurate statement of law to Magdaluyo does not demonstrate bias or the existence of ex parte communications. It is simply a fact that this federal court does not allow peremptory challenges against judges.

         Finally, Magdaluyo contends that I showed prejudice against him when I granted MGM's summary judgment motion. But the fact that I ruled against Magdaluyo does not constitute a valid basis for disqualification. If every denial of a motion gave rise to disqualification, almost no judge could ever sit on a case to its conclusion. Magdaluyo presents no valid arguments to conclude that a reasonable person would question my impartiality in this case.

         B. Review ...


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