United States v. Stephen Lindsey , 416 F. App'x 602 ( 2011 )

FILED
NOT FOR PUBLICATION JAN 21 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-55363
Plaintiff - Appellee, D.C. No. 8:06-cv-00476-DOC-
RNB
v.
STEPHEN J. LINDSEY, an individual, MEMORANDUM *
and as co-trustee of Lindsey Family
Revocable Trust and PATRICIA L.
LINDSEY,
Defendants - Appellants,
and
LINDSEY FAMILY REVOCABLE
TRUST, dated September 8, 1989, a
California Trust; et al.,
Defendants.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted January 10, 2011 **
Before: BEEZER, TALLMAN, and CALLAHAN, Circuit Judges.
Defendants Stephen J. Lindsey and Patricia L. Lindsey appeal pro se from
various district court orders, including the district court’s orders denying the
Lindseys’ motion for recusal and motion to set aside the clerk’s entry of default,
and granting the government’s motion for default judgment. We have jurisdiction
under 28 U.S. C. § 1291. We review for an abuse of discretion the denial of a
motion to set aside an entry of default, Franchise Holding II, LLC v. Huntington
Rests. Group, Inc., 375 F.3d 922, 925 (9th Cir. 2004), and the denial of a motion to
disqualify or recuse a judge, Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir.
2008). We affirm.
Contrary to the Lindseys’ contention, the district court had subject matter
jurisdiction over this proceeding. See 26 U.S.C. §§ 7402(a), 7403; 28 U.S.C.
§§ 1340, 1345.
The district court did not abuse its discretion in denying the Lindseys’
motion to set aside the clerk’s entry of default because the purported “new
evidence” relied upon by the Lindseys did not provide “good cause” for setting
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 08-55363
aside the entry of default. See Fed. R. Civ. P. 55(c); Franchise Holding II, LLC,
375 F.3d at 925-26 (discussing the factors for establishing good cause).
The district court did not abuse its discretion in denying the Lindseys’
motion for recusal because the Lindseys failed to set forth facts demonstrating that
the judge had a personal bias or prejudice that stemmed from an extrajudicial
source and that was not based solely on information gained in the course of the
proceedings. See 28 U.S.C. § 455(b)(1) (a judge must disqualify himself if he has
a personal bias or prejudice); Hasbrouck v. Texaco, Inc., 842 F.2d 1034, 1045-46
(9th Cir. 1987) (“The bias must stem from an extrajudicial source and not be based
solely on information gained in the course of the proceedings.”).
AFFIRMED.
3 08-55363