Dragomir v. Nationwide Mutual Insurance Company et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Gratian Antoniu Dragomir,
Plaintiff,
v.
Nationwide Mutual Insurance Company, et
al.,
Defendants.
No. CV-24-03729-PHX-DJH
ORDER
On August 26, 2025, Defendants Nationwide Mutual Insurance Company and NCS
Arizona LLC (collectively, “Defendants”) filed a Motion to Dismiss Plaintiff’s Claim VII,
defamation per se (Doc. 75). Pro se Plaintiff Gratian Antoniu Dragomir (“Plaintiff”) filed
a Response in Opposition (Doc. 84) as well as a Motion to Amend the Third Amended
Complaint. (Doc. 83). Defendants addressed both Plaintiff’s Response and Motion to
Amend in their Reply. (Doc. 86).
The Court will first address Defendants’ Motion to Dismiss followed by Plaintiff’s
Motion to Amend. Additionally, the Court will rule on Plaintiff’s Motion to Disqualify
Judge, which has been fully briefed (see Docs. 109, 113, 116) as well as Plaintiff’s Motion
to Subpoena Witnesses for Depositions (Doc. 119). At the outset, the Court notes that
Plaintiff has filed a subsequent case against Defendants (see Case No. 25-cv-4148), and
there are now several pending motions in that case, including a Motion to Dismiss the First
Amended Complaint in that case. The Court will consider those motions in a separate
Order.
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For the reasons set out below, the Court denies Defendants’ Motion to Dismiss,
Plaintiff’s Motion to Amend, Plaintiff’s Motion to Disqualify, and Plaintiff’s Motion to
Subpoena. The Court will additionally lift the stay that was previously placed on this case
(see Doc. 124) and has determined that all further pretrial matters in this case will be
referred to a Magistrate Judge. The Magistrate Judge will rule on the parties’ outstanding
Joint Discovery Dispute (Doc. 122) that is not resolved by this Order.
I. Motion to Dismiss
Plaintiff was previously employed by Defendants as a security officer, and this case
arises generally from alleged misconduct during his employment. (Doc. 65 at ¶ 7). While
Plaintiff’s Third Amended Complaint (“TAC”) provides details into the alleged
discrimination and harassment that he experienced, for brevity’s sake, this background
section will focus solely on the allegations underpinning Plaintiff’s defamation per se
claim.
A. Background
In filing his TAC, Plaintiff alleges that newly found evidence revealed that
Defendants made “statements falsely accusing [Plaintiff] of criminal conduct” and “falsely
alleged that [Plaintiff] possessed recordings of coworkers engaging in sexual activity,
leading to fabricated claims of voyeurism under ARS § 13-1424.” (Id. at ¶ 41). Plaintiff
alleges that his co-workers, Brittany Collins and Antonio Arellano, made these claims, and
his “direct leader,” Rob Lanning, escalated them into a complaint, resulting in an
investigation by Defendants’ human resources department, the Office of Associate
Relations (“OAR”). (Id. at ¶ 2, 7, 42). Specifically, Plaintiff alleges:
• On “February 20, 2024 (1:49 AM) – Lanning, despite knowing that the text
and photos at issue were sent on January 19, 2024, submits an ‘urgent ‘ [sic]
complaint to OAR and his direct leader, Larry Zahn, falsely alleging that
Plaintiff engaged in felony stalking, harassment, and created a hostile work
environment, all while conspicuously omitting any mention of recordings,”
(id. at ¶ 50);
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• On “February 20, 2024 (8:00 AM) – Less than seven hours later, Lanning
abruptly informs OAR that Plaintiff ‘Gratian allegedly said he has
‘recordings’ of Antonio and Brittany having sex,’ falsely implicating
Plaintiff in a violation of ARS § 13-1424 (Voyeurism),” (id. at ¶ 51); and
• On “February 21, 2024 (at 7:39 PM) – Following after Lanning, Arellano
sends a formal complaint via email to Lanning, reinforcing false allegations
against the Plaintiff,” (id. at ¶ 52).
Based on the foregoing statements, Plaintiff claims that he has been accused of
conduct that violates the following criminal statutes “ARS § 13-2923 (Stalking),” “ARS
§ 13-2921 (Harassment),” “ARS § 13-1424 (Voyeurism),” “ARS § 13-2904 (Disorderly
Conduct),” and “ARS § 12-1810 (Workplace Harassment Injunctions).” (Id. at ¶ 53).
In alleging his defamation per se claim, Plaintiff asserts:
Defendants knowingly and maliciously published false and defamatory
statements about Pro se, falsely accusing him of criminal conduct and
workplace misconduct, including, but not limited to: a) Falsely alleging that
Pro se stalked and harassed coworkers Antonio Arellano (“Arellano”) and
Brittany Collins (“Collins”), including claims that Pro se yelled at Collins at
work; b) Falsely asserting that Pro se took photographs of Arellano’s vehicle
at Collins’ apartment, recorded Arellano and Collins engaging in sexual
activity, and sent such recordings to Arellano’s wife, thereby implying an
affair between them; c) Wrongfully claiming that Pro se posed a workplace
threat due to alleged aggressive behavior, anger issues, and possession of a
firearm and taser, deliberately creating a false perception that Pro se made
others feel unsafe. These false allegations, initially reported by Lanning and
supported by statements from Arellano and Collins, were later escalated to
the Office of Associate Relations (“OAR”). They were fabricated with
malicious intent to harm Pro se’s reputation. The accusations of anger issues,
aggressive behavior, stalking, harassment, and voyeurism constitute
Defamation Per Se, as they falsely impute criminal behavior—including
felony stalking under Arizona law—and directly damage Pro se’s
professional reputation. Moreover, Lanning falsely alleged that Pro se
possessed recordings of coworkers engaging in sexual activity, leading to
baseless accusations of voyeurism under A.R.S. § 13-1424. These fabricated
claims were intentionally exaggerated to falsely portray Pro se as a criminal.
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(Id. at ¶ 98). 1 After the alleged defamatory statements were brought to OAR, it conducted
an investigation that “ultimately confirmed that no evidence supported these allegations,
and that Collins and Arellano falsely accused Pro se in an attempt to have Pro se’ [sic]
terminated.” (Id. at ¶ 98). Due to the alleged defamation, Plaintiff claims that he has
suffered damages, such as emotional distress and lost wages. (Id. at ¶ 101). Defendants
have now moved to dismiss Plaintiff’s defamation per se claim.
B. Legal Standard
A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a claim.
Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011). Complaints must make a short and
plain statement showing that the pleader is entitled to relief for its claims.
Fed. R. Civ. P. 8(a)(2). This standard does not require “‘detailed factual allegations,’ but
it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)). There must be “more than a sheer possibility that a defendant has acted
unlawfully.” Id. A plaintiff must allege facts sufficient to “raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555. A complaint must “state a claim to relief
that is plausible on its face.” Id. at 570. “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “Determining
whether a complaint states a plausible claim for relief will . . . be a context-specific task
that requires the reviewing court to draw on its judicial experience and common sense.”
Id. at 679.
Dismissal of a complaint for failure to state a claim may be based on either the “lack
of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable
legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). In
reviewing a motion to dismiss, courts will “accept factual allegations in the complaint as
true and construe the pleadings in the light most favorable to the nonmoving party.”
1 Plaintiff refers to himself as “Pro se” in the TAC.
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Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But
courts are not required “to accept as true a legal conclusion couched as a factual allegation.”
Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
C. Discussion
Defendants’ challenges to Plaintiff’s defamation per se claim largely do not relate
to the elements of said claim.2 Instead, Defendants argue that several qualified privileges
apply to the alleged statements, Plaintiff did not adequately plead actual malice, and
Plaintiff has not and cannot plead Defendants’ ratification of the alleged statements.
(Doc. 75 at 3–8).
Initially, the Court addresses Plaintiff’s argument that Defendants are precluded
from filing this Motion to Dismiss because they did not oppose Plaintiff’s Motion for Leave
to file a TAC. (Doc. 84 at 4–5). Defendants assert that their non-opposition to the filing
of the TAC does not act as a waiver of their right to move to dismiss. (Doc. 86 at 2). And
the Court agrees. “Defendants’ assertion[] that Plaintiffs fail to state claims for relief is
not inconsistent with their failure to oppose the motion to amend, and Defendants do not
waive their right to contest the sufficiency of a complaint when they fail to oppose a motion
to amend.” Warren v. Fisher, 2013 WL 1164492, *6 (D.N.J. 2013); Facciola v. Greenberg
Traurig LLP, 2012 WL 910379, *1 (D. Ariz. 2012) (“The Federal Rules of Civil
Procedure…do not require a party to oppose a motion to amend instead of filing a motion
to dismiss.”). Therefore, the Court will turn to the arguments presented in Defendants’
Motion.
1. Qualified Privilege
Defendants first argue that Plaintiff’s defamation claim should be dismissed because
one or more qualified privileges apply to the alleged defamatory statements, and Plaintiff
2 To establish a defamation per se claim, Plaintiff must show that Defendants published a
statement that would impute to him “conduct constituting a criminal offense … if the
offense imputed is of a type which, if committed in the place of publication, would be (a)
punishable by imprisonment in a state or federal institution, or (b) regarded by public
opinion as involving moral turpitude.” Isles v. Family Dollar, Inc., 2025 WL 363705, *8
(Ariz. Ct. App. 2025) (citing Restatement (Second) of Torts, § 571 (1977)) (internal
quotation marks omitted).
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has not alleged that any privilege has been abused. (Doc. 75 at 3–6). Plaintiff disagrees,
arguing that “[e]ven if a conditional privilege initially applied to internal communications,
that privilege was forfeited when Lanning knowingly fabricated a criminal accusation of
Voyeurism[.]” (Doc. 84 at 5).
The existence of a qualified or conditional privilege is a defense to a defamation
action. Green Acres Tr. v. London, 688 P.2d 617, 624 (Ariz. 1984). This defense is based
on “the social utility of protecting statements required to be made in response to a legal,
moral or social duty.” Id. Under Arizona law, a two-part analysis is used for determining
whether a qualified privilege exists. Id. “The court must first determine whether a
privileged occasion arose, and, if so, whether the occasion for the privilege was abused.”
Id. The existence of a privilege is a question of law for the Court, whereas the latter
consideration is a question of fact for a jury. Id.
a. Existence of Privilege
“To establish that a privileged occasion arose, a defamation defendant must
establish that the circumstances in which the communication was made created an
obligation to speak.” Id.
In Miller v. Servicemaster by Rees, the plaintiff brought a defamation claim against
an employer whose employee believed that the plaintiff was sexually harassing her. 851
P.2d 143, 144 (Ariz. Ct. App. 1992). The defendant employer reported the incident to
plaintiff’s employer, and plaintiff brought suit against the defendant, claiming “that the
written and verbal reports of the incident are defamatory as a matter of law because they
adversely damaged his professional reputation.” Id. at 144–45. The court determined that
“a conditional privilege exist[ed] because public policy dictates that employees must be
protected from workplace sexual harassment.” Id. at 145. In so ruling, the court explained
“[t]hat interest can only be protected if employees can report perceived acts of sexual
harassment regardless whether the acts were intended to harass.” Id. Therefore, the report
of the incident and the defendant’s conveyance of it “were for the benefit of protecting []
from unwanted harassment, real or perceived, and [were] conditionally protected.” Id.
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The Court finds that the qualified privilege described in Miller applies to the present
circumstances. The alleged defamatory statements here were made in the course of an
internal investigation to determine the validity of the sexual harassment claims. (See
Doc. 65 at ¶ 51). As in Miller, employees must be protected from workplace sexual
harassment, and thus the reporting of and investigation into claims of such conduct are
conditionally privileged. To the extent that the alleged defamatory statements do not
pertain to sexual harassment, Arizona courts have more broadly recognized that “a
communication is protected by a conditional privilege when the speaker has a duty to make
the communication, and it is made in the performance of this duty.” Aspell v. Am. Contract
Bridge League of Memphis, Tenn., 595 P.2d 191, 192 (Ariz. Ct. App. 1979). “The duty
may be a legal, moral or social one.” Id. All of the statements alleged by Plaintiff were
made in furtherance of the OAR investigation, and, as Lanning was Plaintiff’s supervisor,
it can reasonably be seen that he had an obligation to report instances of stalking,
harassment, and aggressive behavior, even if they turned out to be false. (See Doc. 65 at
¶ 39). Therefore, a qualified privilege applies to the alleged defamatory statements here.
b. Abuse of Privilege
Nonetheless, a fact issue remains as to whether Plaintiff has alleged that Defendants’
privilege was abused. An abuse of a qualified privilege occurs by publication with “actual
malice” or by excessive publication. London, 688 P.2d at 624. “An abuse through ‘actual
malice’ occurs when the defendant makes a statement knowing its falsity or actually
entertaining doubts about its truth.” Id. There is no allegation of excessive publication in
the TAC, so the parameters of excessive publication are not relevant here.
At this juncture, the Court reminds both parties that this is a Rule 12(b)(6) Motion,
which means that factual considerations are inappropriate and determining whether an
element has been alleged in no way means that it has been proven. With those points in
mind, here, Plaintiff has alleged that “Defendants knowingly and maliciously published
false and defamatory statements about [Plaintiff]” and that “[t]he defamatory statements
were exacerbated by Defendants’ malicious intent[.]” (Doc. 65 at ¶¶ 98–99). While these
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allegations are relatively conclusory, they give Defendants sufficient notice that Plaintiff
is claiming that the defamatory statements were made with actual malice.3 Whether
Plaintiff carries his burden of demonstrating actual malice is a consideration for a later
stage of proceedings.
2. Ratification or Authority
Because the alleged defamatory statements were made by Defendants’ employees,
Defendants next argue that the TAC does not contain allegations that Defendants
authorized or ratified the defamatory statements. (Doc. 75 at 7). Plaintiff generally argues
that the facts alleged in the TAC, when taken together, plausibly allege ratification. (See
Doc. 84 at 8–9). The Court again notes that whether an agency relationship exists is
generally a question of fact. Corral v. Fid. Bankers Life Ins. Co., 630 P.2d 1055, 1058
(Ariz. Ct. App. 1981).
Under Arizona law, “a ‘principal is subject to direct liability to a third party harmed
by an agent’s conduct’ when ‘the agent acts with actual authority or the principal ratifies
the agent’s conduct” and “the agent’s conduct is tortious, or the agent’s conduct, if that of
the principal, would subject the principal to tort liability[.]’ ” Griego v. Arizona Dental
Ass’n, 2014 WL 5463931 (Ariz. Ct. App. 2014) (citing Restatement (Third) of Agency
§ 7.03 (2006)).
The Court appreciates Defendants’ argument that the TAC fails to identify whether
Collins, Arellano, or Lanning was acting as an agent of either Defendant NCS or Defendant
Nationwide when any defamatory statements were made. (Doc. 86 at 4; see generally Doc.
65). To satisfy Fed. R. Civ. P. 8(a)(2), “Plaintiff must specify the claims he is raising
against each defendant, what facts form the basis of each claim against each defendant,
what each defendant did that makes him or her liable for violating Plaintiff’s rights, and
how Plaintiff was injured by a particular defendant's conduct.” Myron v. Terhune, 2012
WL 4483102, *5 (N.D. Cal. 2012); In re Bello, 2013 WL 2367796 (Bankr. App. 9th Cir.
2013), aff’d, 622 Fed. App’x. 663 (9th Cir. 2015) (unpublished) (“When a plaintiff asserts
3 Defendants address actual malice in their discussion of Plaintiff’s ability to plead fault.
(See Doc. 75 at 7–8). The Court’s conclusion here applies equally to those arguments.
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multiple claims against multiple defendants, this fair notice standard requires that the
allegations in the complaint must show which defendants are liable to the plaintiff for
which wrongs.”). However, the TAC universally suffers from the defect of collectively
attributing actions to “Defendants.” (See generally Doc. 65). As Defendants have not
argued the insufficiency of Plaintiff’s six other claims on these grounds, the Court will not
dismiss Plaintiff’s defamation claim for this issue. Nevertheless, Plaintiff should note that,
moving forward, he will be required to produce sufficient evidence as to each Defendant’s
liability and consider whether he will be able to do so. Plaintiff’s inability to establish that
Collins, Arellano, or Lanning were each acting as an agent of NCS or Nationwide when
the alleged defamatory remarks may be grounds for dismissal on summary judgment.
a. Ratification
In their briefing, the parties primarily discuss whether Plaintiff sufficiently alleged
that Defendants ratified the alleged defamatory statements. “In order to hold an employer
liable for the consequences of an employee’s tort on the ground of ratification, there must
be clear evidence of the approval of the wrongful conduct.” Scott v. Allstate Ins. Co., 553
P.2d 1221, 12226 (Ariz. Ct. App. 1976). Obviously, on a motion to dismiss, the issue is
not whether Plaintiff has produced evidence of approval, rather whether Plaintiff alleged
that Defendants approved of the defamatory statements. Plaintiff has not done so here.
(See generally Doc. 65). Moreover, Plaintiff attached the results of OAR’s investigation
as an exhibit to his TAC. (Doc. 65-2 at 10–11). The findings of the investigation are clear
that the defamatory statements were discredited by the OAR, Defendants’ human resources
division, and Plaintiff was recommended to return to his role. (Id. at 11). As a result, even
if Plaintiff had pled ratification, such an allegation would be contradicted by his own
exhibits. See Bronson v. Green Tree Servicing, LLC, 2009 WL 546159, *8 (E.D. Cal.
2009) (“When an exhibit contradicts facts alleged in the complaint, the facts in the exhibit
take precedence.”).
b. Authority
That said, ratification is not the only means of establishing a principal’s liability for
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its agent’s act. A principal can be liable for an agent’s tortious acts when that agent is
acting with actual or apparent authority. See Huffman v. JP Morgan Chase Bank, NA, 2023
WL 2691455, *11-12 (D. Ariz. 2023). “An agent acts with actual authority when. . . the
agent reasonably believes, in accordance with the principal’s manifestations to the agent,
that the principal wishes the agent so to act.” Restatement (Third) of Agency § 2.01; see
also Corral, 630 P.2d at 1058 (“Agency may be proved by direct evidence of express
contract of agency between the principal and agent or by proof of facts implying such
contract or the ratification thereof.”). By contrast, apparent authority arises when “the
principal has intentionally or inadvertently induced third persons to believe that such a
person was his agent although no actual or express authority was conferred on him as
agent.” Reed v. Gershweir, 772 P.2d 26, 28 (Ariz. App. 2d Div. 1989).
Here, Plaintiff has alleged that Lanning served as his “direct leader” during his
employment with Defendants and that Lanning reported to OAR that Plaintiff possessed
recordings of his co-workers engaging in sexual activities. (Doc. 65 at ¶ 7, 51). Based on
Plaintiff’s allegations, Lanning as well as his co-workers Collins and Arellano were
employed by Defendants, and, although it is not explicitly alleged, the existence of such an
employment relationship presumably means that they were subject to Defendants’ control
and bound by some employment contract. See Sheppard v. David Evans and Assoc., 694
F.3d 1045, 1051 (9th Cir. 2012) (drawing reasonable inferences in favor of the non-moving
party on a motion to dismiss). While no express contract is required to demonstrate actual
authority, the ability to infer the existence of an express contract between Lanning and
Defendants further allows one to infer that Lanning was making the reported statements
with actual authority and within the scope of his employment. See Brown v. Arizona Dept.
of Real Est., 890 P.2d 615, 621 (Ariz. App. 1st Div. 1995) (“Agency may be proven by an
express contract between the parties or by facts implying a contract.”); see also Phoenix
Newspapers, Inc. v. Church, 537 P.2d 1345, 1359 (Ariz. Ct. App. 1975) (concluding that
there is nothing in Times v. Sullivan or its progeny “which would purport to change in any
way well-settled principles of agency law making the employer liable for defamatory
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statements made by an employee acting within the scope of his employment.”). Therefore,
Plaintiff may proceed with his defamation claim under the alleged agency relationship.
Although the long-term viability of Plaintiff’s defamation claim remains to be seen,
especially given the results of the OAR investigation, Plaintiff has pled a defamation per
se claim sufficient to withstand a 12(b)(6) motion.
II. Motion to Amend
In addition to his Response in Opposition to Defendants’ Motion to Dismiss,
Plaintiff filed a Motion for Leave to File a Fourth Amended Complaint (Doc. 83). Plaintiff
attached a redlined version of his proposed Fourth Amended Complaint. (See Doc. 83-1).
Defendants responded to the Motion to Amend in their Reply to their Motion to Dismiss,
generally arguing that the proposed amendments do not change their above arguments or
are otherwise futile. (See Doc. 86 at n.1).
The court has discretion to grant or deny leave to amend a complaint, Swanson v.
United States Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996), though leave should be “freely
give[n] when justice so requires.” Fed. R. Civ. P. 15(a)(2). “In exercising this discretion,
a court must be guided by the underlying purpose of Rule 15 to facilitate a decision on the
merits, rather than on the pleadings or technicalities.” United States v. Webb, 655 F.2d
977, 979 (9th Cir. 1981). Consequently, the policy to grant leave to amend is applied with
extreme liberality. Id. However, there is no abuse of discretion “in denying a motion to
amend where the movant presents no new facts but only new theories and provides no
satisfactory explanation for his failure to fully develop his contentions originally.” Bonin
v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995).
Having reviewed the Motion to Amend and the proposed amendments, the Court
denies Plaintiff’s Motion for the following reasons. First, the only explanation Plaintiff
gives for seeking further amendment is that the amendments “reflect[] newly developed
factual allegations and a refined legal theory under Defamation Per Se and Cyberstalking.”
(Doc. 83 at 1). Plaintiff’s Motion was filed on September 5, 2025, a day after the deadline
to amend. (See Doc. 64). Plaintiff does not undertake any discussion of why any of his
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proposed amendments could not have been previously made.
Second, the amendments to Plaintiff’s defamation per se claim do not raise new
factual allegations. Instead, they are largely responsive to the arguments raised in
Defendants’ Motions to Dismiss and revise preexisting claims to more expressly state
certain elements. (See, e.g., Doc. 83-1 at 11 (“Defendants’ selective disclosure and
manipulation of exculpatory evidence reflect actual malice and institutional ratification of
false accusations.”)). However, the Court has allowed Plaintiff to proceed with its
defamation claim, based on the above ruling, so further amendment of the claim is not
necessary.
Third, Plaintiff’s remaining amendments are made for the purpose of bringing a
cyberstalking claim against Defendants under 18 U.S.C. § 2261A. As Defendants noted,
18 U.S.C. § 2261A is a criminal statute, and no private right of action has been
acknowledged under the statute. (See Doc. 86 at n.1); see also Kruska v. Perverted Justice
Found. Incorporated.Org, 2010 WL 4791666, *8 (D. Ariz. 2010) (“Nowhere does 18
U.S.C. § 2261(a)(2) provide a private right of action or recovery. Because there is not a
private right of action or recovery under 18 U.S.C. § 2261A(2), Plaintiff’s claim under this
statute is dismissed with prejudice.”). Thus, Plaintiff’s cyberstalking amendments are
futile. See, e.g., McDonald v. Donofrio, 2023 WL 4306309, *3 (D. Nev. 2023) (“Because
Plaintiff cannot bring a civil claim under a criminal statute, this claim is futile and,
therefore, supports denying Plaintiff’s Motion to Amend.”).
III. Motion to Disqualify
Plaintiff seeks to disqualify the undersigned under 28 U.S.C. § 455. (See Doc. 109).
Plaintiff argues that there is an appearance of bias and unequal treatment in this case that
warrants the Court’s recusal. (See generally id.). Defendants oppose disqualification,
contending that Plaintiff has not demonstrated bias or prejudice stemming from an
extrajudicial source. (See Doc. 113).
“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.A.
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§ 455(a). “[R]ecusal is appropriate where a reasonable person with knowledge of all the
facts would conclude that [the] judge’s impartiality might reasonably be questioned.”
Kulas v. Flores, 255 F.3d 780, 787 (9th Cir. 2001) (citing Moideen v. Gillespie, 55 F.3d
1478, 1482 (9th Cir.1995)) (internal quotes omitted). However, “[a]dverse rulings alone
do not support a finding that the judges were biased.” McNamara v. Cooley, 72 Fed. Appx.
727, 728 (9th Cir. 2003) (unpublished). “To provide grounds for recusal, prejudice must
result from an extrajudicial source.” Mayes v. Leipziger, 729 F.2d 605, 607 (9th Cir. 1984).
Here, Plaintiff identifies various grounds that he believes serve as reasons for the
Court’s disqualification. First, Plaintiff points to a “pattern of rulings demonstrating bias.”
(Doc. 109 at 3). Specifically, he claims that the Court ruled favorably on four of
Defendants’ discovery disputes and unfavorably on three discovery disputes brought by
Plaintiff. (Id. at 4–5). He argues that the Court inconsistently applied the term “fishing
expedition” to discovery requests brought by Plaintiff and Defendants. (Id. at 5–7). Next,
Plaintiff asserts that the Court refused to entertain his spoliation concerns. (Id. at 7–8).
Plaintiff further takes issue with what he believes is the Court’s unequal treatment of
Plaintiff and Defendants, again primarily based on the Court’s rulings. (See id. at 8–14).
Recusal is solely warranted when alleged bias or partiality stemmed from an
extrajudicial source. See U.S. v. Raymond, 10 Fed. App’x. 513, 514 (9th Cir. 2001)
(unpublished). The only suggestion of bias Plaintiff provides is the Court’s prior rulings.4
Morissette v. Yu, 21 F.3d 1114, *1 (9th Cir. 1994) (“The prior decisions do not demonstrate
bias from an extrajudicial source, so they cannot support recusal.”); Federal National
Mortgage Association v. Willis, 2018 WL 3544073, *3 (D. Nev. 2018) (“[Plaintiff’s]
motion sets forth his disagreements with the court’s findings based on his
4 Plaintiff also believes that the undersigned’s courtroom management demonstrates bias,
but a review of the record demonstrates that both parties have received full and fair
opportunities to litigate their disputes in this case. Indeed, the Court has expended
considerable time and energy on this case. Furthermore, “[a] judge's ordinary efforts at
courtroom administration—even a stern and short-tempered judge’s ordinary efforts at
courtroom administration—remain immune [from recusal].” Liteky v. U.S., 510 U.S. 540,
555 (1994). Additionally, Defendants effectively rebut Plaintiff’s claims of biased
courtroom behavior and clarify what transpired during the parties’ hearings before the
Court. (See Doc. 113 at 3–5).
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misunderstanding of the law and the misconstrued and unsubstantiated notion that the
court's findings are the result of the judge’s biases.”). The Court will not re-explain the
rationale for all the rulings that have been issued on the parties’ many discovery disputes
but will state that they were the result of the Court’s interpretation of the applicable law
and facts. Plaintiff may not agree with the Court’s rulings, but this is not a scenario that is
unique to Plaintiff. The Court is perpetually in a role to render decisions that create
unfavorable results for one or even both parties. “To the extent plaintiff disagrees with the
undersigned’s determinations, such issues are properly raised through an appeal to the
Ninth Circuit, not a motion to recuse.” Chiat v. Washington, 2020 WL 8617399, *2 (W.D.
Wash. 2020). In all, Plaintiff has not demonstrated the existence of legitimate deep-seated
favoritism or antagonism that would render fair judgment impossible as necessary to
support a § 455 recusal. Liteky, 510 U.S. at 555.
IV. Motion for Subpoena
On November 21, 2025, Plaintiff filed a Motion to Subpoena Witnesses for
Depositions (Doc. 119). The parties then filed a Joint Discovery Dispute (Doc. 122) with
the Court, regarding the parties’ disagreements on the order of depositions, the timing of
depositions, and which depositions are needed. The Court stayed all discovery in this case
on December 3, 2025 (Doc. 124), so both these issues have remained unresolved.
The Court denies Plaintiff’s Motion to Subpoena without prejudice because, in
ruling on the pending motions in this case, the stay will be lifted and the forthcoming
resolution of the Joint Discovery Dispute will likely impact the subpoenas Plaintiff
requires. Plaintiff may later refile his Motion if needed, but it is first necessary to resolve
the parties’ Dispute. On a final note, the Court emphasizes that meet and confer
requirements are taken seriously, and the parties must engage in good faith efforts to
resolve their issues before bringing further disputes to the Court.
Accordingly,
IT IS ORDERED that Defendants’ Motion to Dismiss Claim VII (Defamation Per
Se) (Doc. 75) is DENIED. Plaintiff may proceed with his defamation per se claim.
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IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to File a Fourth
Amended Complaint (Doc. 83) is DENIED. The Third Amended Complaint is the
operative Complaint in these proceedings.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Disqualify Judge pursuant
to 28 USC § 455(a) and for Reassignment (Doc. 109) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Subpoena Witnesses for
Depositions (Doc. 119) is DENIED without prejudice.
IT IS FURTHER ORDERED that the stay of discovery and other relevant
deadlines in this matter 9Doc. 124) is LIFTED.
IT IS FINALLY ORDERED that all further pretrial matters in this case, including
the Joint Discovery Dispute (Doc. 122), will be referred to a Magistrate Judge by separate
Order.
Dated this 24th day of March, 2026.
Honorable Diane J. Humetewa
United States District Judge
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