United States District Court, M.D. Florida, Tampa Division
VIRGINIA M. HERNANDEZ COVTNGTON, UNITED STATES DISTRICT
cause comes before the Court in consideration of Plaintiff
Derrel Leonard Thomas's Motion for Recusal of Trial Judge
(Doc. # 51), filed on June 6, 2017. Plaintiff filed two
notices of appeal on June 8, 2017. (Doc. ## 48, 49). This
motion was deferred until the appeal was resolved. (Doc. #
52). Plaintiff's appeal was dismissed for lack of
jurisdiction on March 27, 2018, and this case was returned to
active status. (Doc. # 62). For the reasons stated below,
Plaintiff's Motion is denied.
28 U.S.C. § 455, a United States justice, judge or
magistrate judge must “disqualify [her]self in any
proceeding in which [her] impartiality might reasonably be
questioned.” The purpose of this statute is to
“to promote confidence in the judiciary by avoiding
even the appearance of impropriety whenever possible.”
Liljeberg v. Health Servs. Acquisition Corp., 486
U.S. 847, 865 (1988).
455(a) embodies an objective standard. Parker v. Connors
Steel Co., 855 F.2d 1510, 1523-24 (11th Cir. 1988). In
determining whether a judge should disqualify himself, the
test is “whether an objective, disinterested, lay
observer fully informed of the facts underlying the grounds
on which recusal was sought would entertain a significant
doubt about the judge's impartiality.” Id.
“[A]ny doubts must be resolved in favor of
recusal.” United States v. Patti, 337 F.3d
1317, 1321 (11th Cir. 2003). However, “a judge, having
been assigned to a case, should not recuse himself on
unsupported, irrational, or highly tenuous
speculation.” In re Moody, No. 13-12657, 2014
WL 948510, at *3 (11th Cir. Mar. 12, 2014)(quoting United
States v. Greenough, 782 F.2d 1556, 1558 (11th Cir.
Motion contains unsupported and highly tenuous speculation.
Plaintiff claims, with no support, that the undersigned
allowed “defendants to lie in this case.” (Doc #
51 at 2). Plaintiff also claims, again with no support, that
the undersigned has sided with Defendants by quashing
service. (Id. at 1). But this action by the Court
was not one of bias; rather, it was required under Rule 4.
Plaintiff has repeatedly failed to serve multiple Defendants
in this case. (Doc. # 42). Rule 4 permits service to be
accomplished under applicable state law or by one of three
methods. Fed.R.Civ.P. 4(e). Section 48.031, Fla. Stat.,
prescribes the manner by which service must be perfected in
Florida. Section 48.031 states that service of process is
made by delivering a copy of it to the person to be served
with the copy of the complaint, petition, or other initial
pleading, or paper or by leaving the copies at his or her
usual place of abode with any person residing therein who is
15 years of age or older and informing the person of their
Rule 4(e)(2) allows service to be accomplished by
“delivering a copy of the summons and of the complaint
to the individual personally, ” “leaving a copy
of each at the individual's dwelling or usual place of
abode with someone of suitable age and discretion who resides
there, ” or by “delivering a copy of each to an
agent authorized by appointment or by law to receive service
of process.” Fed.R.Civ.P. 4(e)(2)(A)-(C).
has not complied with any of the permissible methods of
service. Personal service was not made. Plaintiff did not
leave a copy of summons and complaint at Defendants'
usual places of abode. There is no indication that the
individual that was given the summons was an authorized agent
of the Defendants, as required by law. The undersigned has
fairly applied the law requiring proper service of process.
the undersigned has given Plaintiff repeated chances to
correctly serve Defendants. The Court sua sponte gave
Plaintiff an extra 60 days to serve the Amended Complaint.
(Doc. # 6). Also, rather than dismiss outright for failure to
serve, the Court provided Plaintiff with an opportunity to
show cause as to why the action should not have been
dismissed against various Defendants who had not yet been
served. (Doc. ## 36, 42, 64).
short, the undersigned has not shown bias and prejudice to
either Plaintiff or Defendants in this case. The Order
quashing service of which Plaintiff complains was the result
of Plaintiff's repeated failure to execute service of
process as required by the Federal Rules of Civil Procedure.
Despite Plaintiff's arguments, the undersigned actions in
this case would not cause a reasonable person to question her
impartiality. Accordingly, Plaintiff's Motion is denied.