USA v. Eklund

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
LOUIS HOLGER EKLUND,
Defendant.
Case No. 3:18-cr-00035-SLG-MMS
ORDER REGARDING MOTION TO TAKE JUDICIAL NOTICE
Before the Court at Docket 444 is defendant Louis Holger Eklund’s pro se Motion
for the Court to Take Judicial Notice Pursuant to Fed. R. Evid. Rule 201(b)(2)(c)(2). No
response from the government is necessary.1 The Court construes Mr. Holger’s motion
as both a motion for judicial notice and as a motion for judicial recusal.
Mr. Holger seeks to have the Court to take judicial notice of eight purported facts
related to his filings in the Ninth Circuit Court of Appeals in case number 20-35966.2 The
Ninth Circuit case is an appeal of a civil case Mr. Holger filed against several defendants,
including the undersigned judge in the District of Alaska, which was “dismissed with
prejudice for being frivolous” in 2018.3 The Court has reviewed Mr. Holger’s assertions
and finds that they are not “facts” subject to judicial notice because they are not relevant
to the substance of this criminal case and would not be admissible in trial. The Court will
1 See Docket 197 (text order stating that “the government need not respond to any filing by the
defendant unless the Court orders a response.”).
2 Docket 444 at 5–6.
3 Case No. 3:18-cv-00079-RRB at Docket 5, page 3.
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Case No. 3:18-cr-00035-SLG-MMS, United States v. Eklund
Order Re Motion to Take Judicial Notice
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not take judicial notice of any of the eight alleged “facts” Mr. Holger sets forth in his motion,
and that portion of the motion is denied.
To the extent the motion seeks judicial recusal pursuant to 28 U.S.C. §§ 455,4 the
motion is denied. No provision of 28 U.S.C. § 455(a) or (b) applies in this case.5
Moreover, a litigant cannot force the recusal of an assigned district court judge merely by
filing or appealing a meritless lawsuit naming the judge as a defendant.6
In light of the foregoing, IT IS ORDERED that the motion at Docket 444 is DENIED.
DATED this 9th day of March, 2021, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
4 Docket 444 at 4, 6. Mr. Holger asserts that he will be filing a “forthcoming motion, with
supporting affidavit,” for recusal pursuant to 28 U.S.C. § 144. Docket 444 at 5. Accordingly, the
Court does not address § 144 in this order.
5 The standard for recusal pursuant to 28 U.S.C. § 455 is “whether a reasonable person with
knowledge of all the facts would conclude that the judge’s impartiality might reasonably be
questioned.” United States v. Nelson, 718 F.2d 315, 321 (9th Cir. 1983); U.S. v. McTierman, 695
F.3d 882, 891 (9th Cir. 2012). Recusal is required if a reasonable third-party would perceive a
“significant risk” that the judge would resolve the case on a basis other than the merits. Liljeberg
v. Health Serv. Acquisition Corp., 486 U.S. 847, 860 (1988). “The reasonable person in this
context means a well-informed, thoughtful observer, as opposed to a hypersensitive or unduly
suspicious person.” Clemens v. U.S. Dist. Court for the Central Dist. of Nevada, 428 F.3d 1175,
1178 (9th Cir. 2005) (internal quotations and citations omitted). This standard is not met here.
6 United States v. Studley, 783 F.2d 934, 940 (9th Cir. 1986) (“A judge is not disqualified by a
litigant’s suit or threatened suit against him, or by a litigant’s intemperate and scurrilous
attacks.”) (internal citations omitted); United States v. Bundy, Case No. 2:16-cr-046-GMN-PAL,
2016 WL 3012041, at *2 (D. Nev. May 24, 2016) (a defendant “cannot, for reason of
disqualification, name a judge in a new lawsuit with the purpose of disqualifying her from the
instant case. While a judge cannot act in her own case, neither may [defendant] file ‘specious
pleadings’ solely for the purpose of disqualifying her.”) (citations omitted).
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