Kung v. Chex Systems, Inc. ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 KIN WAH KUNG, Case No. 20-cv-04885-LHK (VKD) 9 Plaintiff, ORDER DENYING MOTION FOR 10 v. RECUSAL 11 CHEX SYSTEMS, INC., et al., Re: Dkt. No. 17 Defendants. 12 13 14 Pro se plaintiff Kin Wah Kung moves to recuse the undersigned magistrate judge from 15 serving as the referral judge for discovery disputes and settlement conferences in this action.1 Dkt. 16 No. 17. Defendant Chex Systems, Inc. did not file an opposition to the motion. Defendant 17 Citizens Equity First Credit Union (“CEFCU”) filed a statement of non-opposition. Dkt. No. 20. 18 The presiding judge referred this motion to the undersigned magistrate judge on October 15, 2020. 19 Dkt. No. 33. The Court finds the matter suitable for resolution without oral argument. Civ. L.R. 7- 20 1(b). For the following reasons, Mr. Kung’s motion for recusal is denied. 21 In this action, Mr. Kung alleges that defendant ChexSystems and/or defendant CEFCU 22 violated the Fair Credit Reporting Act (“FCRA”), California’s Consumer Credit Reporting 23 Agencies Act, and other obligations arising under California law. Dkt. No. 1. Mr. Kung seeks to 24 25 1 This matter has been referred to the undersigned magistrate judge for purposes of discovery and settlement. Dkt. No. 28; see also Dkt. No. 17 at 3 (“Per the ECF Docket Report of this action, 26 Honorable DeMarchi was referred as the settlement judge. Despite the lack of ECF entry, Plaintiff believes this Court, in her own initiative, pursuant to N.D. ADR L.R. 7-2, referred this action to a 27 settlement conference.”). Mr. Kung’s motion focuses on the referral for settlement purposes, but 1 recuse the undersigned magistrate judge pursuant to 28 U.S.C. § 455(a), (b)(1), and/or (b)(2). Dkt. 2 No. 17 at 4. Section 455(a) states: “Any justice, judge, or magistrate judge of the United States 3 shall disqualify [her]self in any proceeding in which [her] impartiality might reasonably be 4 questioned.” The statute further mandates recusal where a judge “has a personal bias or prejudice 5 concerning a party, or personal knowledge of disputed evidentiary facts concerning the 6 proceeding,” or where “in private practice [s]he served as lawyer in the matter in controversy, or a 7 lawyer with whom [s]he previously practiced law served during such association as a lawyer 8 concerning the matter, or the judge or such lawyer has been a material witness concerning it.” 28 9 U.S.C. § 455(b)(1)-(2). A § 455 motion requires a judge to determine “whether all the 10 circumstances call for recusal under the self-enforcing provisions of section 455(a) & (b)(1), a 11 matter which rests within the sound discretion of the judge.” United States v. Hughes, No. 18-CV- 12 05931-JCS, 2020 WL 1531374, at *3 (N.D. Cal. Mar. 31, 2020) (citing United States v. Sibla, 624 13 F.2d 864, 868 (9th Cir. 1980); United States v. Schreiber, 599 F.2d 534, 536 (3d Cir. 1979), cert. 14 denied, 444 U.S. 843 (1979)) (internal quotation marks omitted). 15 Mr. Kung contends that, as a former partner, general counsel, and Executive Committee 16 member of Fenwick & West LLP, the undersigned “may have knowledge about Plaintiff” or one 17 of Mr. Kung’s other FCRA actions, Kung v. Experian Information Solutions, Inc. et al., Case No. 18 18-cv-00452-WHA (N.D. Cal.), in which Fenwick represented defendant Intuit, Inc. Dkt. No. 17 19 at 4. Mr. Kung candidly acknowledges that the he has no information suggesting that the 20 undersigned has any knowledge of Mr. Kung or of his prior FCRA matters, but he expresses 21 concern on that point and raises the question for consideration. Id. at 4–5. 22 The undersigned magistrate judge has no prior knowledge of Mr. Kung or his prior FCRA 23 actions involving Intuit or any other party, and she has formed no impression of him or this action, 24 let alone a bias or prejudice against him. In her time in private practice, the undersigned did not 25 represent any clients in any FCRA actions and had no occasion, as general counsel of Fenwick or 26 otherwise, to be informed of any facts concerning Mr. Kung or his prior FCRA matter. No 27 Fenwick attorneys, including those who represented Intuit in the action to which Mr. Kung refers, 1 all of the circumstances presented, there is no basis on which the undersigned’s impartiality in this 2 || matter reasonably may be questioned, and no basis for recusal or disqualification under 28 U.S.C. 3 || § 455(a), (b)(1), and/or (b)(2). 4 For the foregoing reasons, the Court denies Mr. Kung’s motion to recuse the undersigned 5 magistrate judge. The hearing noticed for October 27, 2020 is hereby VACATED. 6 IT IS SO ORDERED. 7 Dated: October 19, 2020 8 9 VIRGINIA K. DEMARCHI 10 United States Magistrate Judge 11 15 16 it 4 18 19 20 21 22 23 24 25 26 27 28