Gilbert v. Cortazzo ( 2022 )

Case: 21-30176 Document: 00516158094 Page: 1 Date Filed: 01/07/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
January 7, 2022
No. 21-30176 Lyle W. Cayce
Summary Calendar Clerk
Dean E. Gilbert,
Plaintiff—Appellant,
versus
Thomas J. Cortazzo, individually, and as counsel for
the Succession of Bernadette Gaines Gilbert; Darryl
M. Gilbert, individually, and as an heir to the
Succession of Bernadette Gaines Gilbert; Dwight A.
Gilbert, individually, and in his capacity as
Administrator for the Succession of Bernadette
Gaines Gilbert; Debra Dave, an agent to the Succession
of Bernadette Gaines Gilbert; Sidney H. Cates, IV,
individually, and in his capacity as Judge of the
Orleans Parish Civil District Court,
Defendants—Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:20-CV-3428
Before Clement, Haynes, and Higginson, Circuit Judges.
Case: 21-30176 Document: 00516158094 Page: 2 Date Filed: 01/07/2022
No. 21-30176
Per Curiam:*
This case is the fifth lawsuit brought by Dean Gilbert (“Gilbert”)
concerning the succession proceedings of Bernadette Gaines Gilbert,
Gilbert’s mother. After the case was removed to the United States District
Court for the Eastern District of Louisiana, Gilbert filed separate motions to
disqualify district court Judge Vitter and Magistrate Judge Roby from
presiding over his case. Gilbert alleged that both judges were biased against
him. Judge Vitter denied the motion against her and then remanded the case
to state court, finding a lack of federal jurisdiction. No judgment was entered
on the motion to disqualify Magistrate Judge Roby. Gilbert now appeals,
arguing that the district court abused its discretion in: (1) denying his motion
to disqualify Judge Vitter; and (2) “precluding” a response to his motion to
disqualify Magistrate Judge Roby. We disagree and affirm the district court.
First, we consider the district court’s denial of Gilbert’s motion to
disqualify Judge Vitter. We review the denial of a motion to disqualify for
abuse of discretion. See Matassarin v. Lynch, 174 F.3d 549, 571 (5th Cir. 1999).
Pursuant to 28 U.S.C. § 455(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.” See also 28 U.S.C. § 144(proscribing procedure for bias or prejudice challenges). When considering
accusations of bias, “[t]he Court asks not whether a judge harbors an actual,
subjective bias, but instead whether, as an objective matter, the average judge
in his position is likely to be neutral, or whether there is an unconstitutional
potential for bias.” Williams v. Pennsylvania, 579 U.S. 1, 9 (2016) (cleaned
up) (quoting Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 881
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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Case: 21-30176 Document: 00516158094 Page: 3 Date Filed: 01/07/2022
No. 21-30176
(2009)). We find the record devoid of any facts that would, as an objective
matter, suggest bias.
That leaves only the motion to disqualify Magistrate Judge Roby
remaining. “The courts of appeals . . . have jurisdiction of appeals from all
final decisions of the district courts of the United States.” 28 U.S.C. § 1291.
Absent a final decision—i.e., a judgment or an order, see Fed. R. App. P.
4(a)(7)—we lack jurisdiction. See First RepublicBank Fort Worth v. Norglass,
Inc., 958 F.2d 117, 119 (5th Cir. 1992). The district court did not enter
judgment on Gilbert’s motion to disqualify Magistrate Judge Roby; thus, we
cannot consider Gilbert’s appeal on that front.
Affirmed.
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