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Following a biased Report and Recommendation and Order denying the Plaintiffs' Motion to Compel which requested that Defendant Bank of America provide the required initial disclosure information for discovery, the Plaintiffs filed the following Motion to Disqualify Magistrate Judge Gregory J. Kelly, who is clearly biased and not only provides an umbrella of protection to the defendants but is also a former employer of Akerman Senterfitt, the attorneys who represented Bank of America i prior litigation against the Plaintiffs and whom the Plaintiffs have claimed in this current action that fraud and misconduct was committed against them in prior litigation. The Plaintiffs have reason to believe, and the records prove it, that Judge Kelly is protecting his former employer Akerman Senterfitt and their client Bank of America in this current case.
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Echeverria vs Bank of America Motion to Disqualify Magistrate Judge_Privacy
Following a biased Report and Recommendation and Order denying the Plaintiffs' Motion to Compel which requested that Defendant Bank of America provide the required initial disclosure information for discovery, the Plaintiffs filed the following Motion to Disqualify Magistrate Judge Gregory J. Kelly, who is clearly biased and not only provides an umbrella of protection to the defendants but is also a former employer of Akerman Senterfitt, the attorneys who represented Bank of America i prior litigation against the Plaintiffs and whom the Plaintiffs have claimed in this current action that fraud and misconduct was committed against them in prior litigation. The Plaintiffs have reason to believe, and the records prove it, that Judge Kelly is protecting his former employer Akerman Senterfitt and their client Bank of America in this current case.
Following a biased Report and Recommendation and Order denying the Plaintiffs' Motion to Compel which requested that Defendant Bank of America provide the required initial disclosure information for discovery, the Plaintiffs filed the following Motion to Disqualify Magistrate Judge Gregory J. Kelly, who is clearly biased and not only provides an umbrella of protection to the defendants but is also a former employer of Akerman Senterfitt, the attorneys who represented Bank of America i prior litigation against the Plaintiffs and whom the Plaintiffs have claimed in this current action that fraud and misconduct was committed against them in prior litigation. The Plaintiffs have reason to believe, and the records prove it, that Judge Kelly is protecting his former employer Akerman Senterfitt and their client Bank of America in this current case.
FOR THE MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION
ABDIEL ECHEVERRIA and ISABEL SANTAMARIA
Plaintiffs, CASE NO: 6:14-cv-00486-CEM-GJK
BANK OF AMERICA, N.A., URBAN SETTLEMENT SERVICES d/b/a URBAN LENDING SOLUTIONS and CARLISLE & GALLAGHER CONSULTING GROUP, INC.
Defendants, ________________________/
PLAINTIFFS MOTION FOR DISQUALIFICATION OF MAGISTRATE JUDGE GREGORY J. KELLY
Plaintiffs Abdiel Echeverria and Isabel Santamaria move the Court to disqualify The Honorable Magistrate Judge Gregory J. Kelly from participation in this case pursuant to 28 USC 455 on the grounds that the magistrate is disqualified under 28 USC 455(a) and (b). In support of this Motion, Plaintiffs respectfully present the attached Memorandum of Law.
499 Cellini Ave NE Palm Bay, Florida 32907 (321) 676-4198 (321) 750-6697 Email: andyecorso@yahoo.com
CERTIFICATE OF SERVICE
I do hereby CERTIFY that a true and correct copy of the foregoing has been furnished to Marc T. Parrino. Esq.; Kevin W. Cox, Esq.; Gary Soles; and Meghan D. Engle by: ( ) mail ( ) fax ( ) mail and fax ( ) email on this_______ day of____________________, 20______.
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION
ABDIEL ECHEVERRIA and ISABEL SANTAMARIA
Plaintiffs, CASE NO: 6:14-cv-00486-CEM-GJK
BANK OF AMERICA, N.A., URBAN SETTLEMENT SERVICES d/b/a URBAN LENDING SOLUTIONS and CARLISLE & GALLAGHER CONSULTING GROUP, INC.
Defendants, ________________________/
MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR DISQUALIFICATION OF MAGISTRATE JUDGE GREGORY J. KELLY
Plaintiffs Abdiel Echeverria and Isabel Santamaria, pro se plaintiffs in this instant action, pursuant to 28 U.S.C.A. 455(a)(b)(1)(2), hereby file this Motion and supporting Memorandum of Law to show that the Honorable Magistrate Judge Gregory J. Kelly, has demonstrated a personal bias and prejudice against them and has a conflict of interest in the current case. Based on the Motion and supporting Memorandum of Law and for the reasons specified in the Plaintiffs Opposition To Magistrate Judge Gregory J. Kellys Report and Recommendation dated October 2, 2014 1 , Plaintiffs Abdiel Echeverria and Isabel Santamaria respectfully request that the Honorable Magistrate Judge Gregory J. Kelly proceed no further in this action, that all motions assigned to him and decided in this action be vacated and that all his
1 As of the date this Motion for Disqualification was mailed, Plaintiffs Opposition to Magistrate Judge Gregory J. Kellys Report and Recommendation (Doc. 68) had yet to be docketed by the clerk or assigned a docket number. 4
opinions and reports be vacated in its entirety due to bias, partiality and conflict of interest and that another magistrate judge that has had no affiliation with Akerman Senterfitt or to the Defendants, be assigned in his place. INTRODUCTION The integrity of our judicial system rests, in large part, upon the assumption that judges will regard the matters set before them with impartiality. The United States Constitution contains various safeguards to ensure that, where a judge is unable to regard a particular matter impartially, that judge shall be removed from considering the case. It is not enough that judges be impartial; the public must perceive them to be so. The Code of Conduct for United States Judges therefore admonishes judges to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary and to avoid impropriety and the appearance of impropriety in all activities 2 . So it is with disqualification requirements for federal judges, which require disqualification when a judges impartiality might reasonably be questioned. 3
During the preparation of their Opposition to Magistrate Judge Kellys Report and Recommendation, the Plaintiffs became aware of Judge Kellys prior work history. Therefore, this recusal motion has been filed "at the earliest possible moment after obtaining the facts demonstrating a basis for recusal." See U.S. v. Occhipinti, 851 F. Supp. 523, 567 (So. Dist., NY 1993). Judge Kellys adamant behavior and his refusal to acknowledge the facts or the evidence of this current case raised the suspicions of the Plaintiffs and upon further investigation, the
2 Code of Conduct for United States Judges, Canon 2A. 3 28 U.S.C. 455(a). 5
Plaintiffs realized his affiliation with Akerman Senterfitt, his former employer, which represented Bank of America in prior litigation with the Plaintiffs and which prior representation comes into question in this current case. The Plaintiffs have strongly alleged in this current action, in which Judge Kelly refused to address in his Report and Recommendation, that Defendant Bank of America and its co-conspirators (Urban & CGCG) committed fraud and misconduct in prior litigation. Plaintiffs filed documents signed by Akerman Senterfitt attorneys (some were notarized) 4 in this current case in which Judge Kelly refused to address in his recommendation. Again, Plaintiffs file a timely motion requesting recusal after learning of the relevant facts, which collectively formed a basis for recusal. See Apple v. Jewish Hosp. & Med. Ctr., 829 F.2d at 333 (noting that a party should generally raise a recusal issue at the earliest possible moment after obtaining knowledge of facts demonstrating the basis for such a claim) (emphasis added). Plaintiffs now turn to the legal basis under which Magistrate Judge Kellys actions merits his disqualification from the instant action. LEGAL STANDARD
Any justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. Liteky v.United States,510 US 540, 547 (Citing 28 U.S.C. 455(a)). Under 28 U.S.C. 455(a), what matters is not the reality of bias or prejudice but its appearance. Id. at 548. Though there is an extrajudicial source factor one which examines whether the evidence of bias on the part of a judge came from an extrajudicial source this factor has several exceptions, one of which is the pervasive bias
4 See Judicial Notice, Doc. 40 & 57. 6
exception. Id.at 551 (Citing Davis v. Board of School Commrs of Mobile County, 517 F. 2d 1044, 1051(CAS 1975)). The Davis Court defined the exception as follows: there is an exception where such pervasive bias and prejudice is shown by otherwise judicial conduct as would constitute bias against a party. Davis v. Board of School Commrs of Mobile County, 517 F. 2d 1044, 1051. By statute, a federal judge is duty-bound to disqualify him- or herself from any proceeding on which that judges impartiality might reasonably be questioned, or where the judge has exhibited personal bias against a party: (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. (b) He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party[.] 28 U.S.C.A. 455(a),(b) (emphasis added). Added to the clear language of Section 445, which requires disqualification where the court's impartiality might reasonably be questioned, is the forceful holding of the U.S. Supreme Court in Liteky v. U.S., 510 U.S. 540, 557 (1994), clearly requiring disqualification under the circumstances presented here: Section 455(a) provides that a judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." For present purposes, it should suffice to say that Section 455 (a) is triggered by an attitude or state of mind so resistant to fair and dispassionate inquiry as to cause a party, the public, or a reviewing court to have reasonable grounds to question the neutral and objective character of a judge's rulings or finding". 7
ARGUMENT I. CONFLICT OF INTEREST, BIAS, PARTIALITY. Several circuits have ruled that, pursuant to 455(a), judges have an ethical duty to disclose on the record information which the judge believes the parties or their lawyers might consider relevant to the question of disqualification. American Textile Mfrs. Inst., Inc. v. Limited, Inc., 190 F.3d 729, 742 (6th Cir. Ohio 1999) (quotation marks omitted); see also U.S. v. Murphy, 768 F.2d 1518, 1536-37 (7th Cir. 1985) (same); Parker v. Connors Steel Co., 855 F.2d 1510, 1525 (11th Cir. 1988) (same). In discussing the import of Section 455(b), Chief Justice Rehnquist noted, in his dissent, in Lilyeberg v. Health Services Acquisition Corp., 486 U.S. 847, 871 (1988) that: "Subsection (b) of 455 sets forth more particularized situations in which a judge must disqualify himself. Congress intended the provisions of Section 455 (b) to remove any doubt about recusal in cases where a judge's interest is too closely connected with the litigation to allow his participation." The goal of Section 455 is to avoid even the appearance of partiality. Inherent in 455(a)s requirement that a judge disqualify himself if his impartiality might reasonably be questioned is the principle that our system of justice must satisfy the appearance of justice. See Parker v. Connors Steel Co., 855 F.2d 1510, 1523 (11th Cir. 1988) (quoting Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11 (1954)). The very purpose of 455(a) is to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible. See Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 865, 108 S.Ct. 2194, 2205 8
(1987) (citing H.R.Rep. No. 93-1453, at 5). Thus, it is critically important ... to identify the facts that might reasonably cause an objective observer to question [the judges] impartiality. Id. Judge Kellys actions take him far beyond the impartiality that a judge should exhibit - 28 USC 455(a) & (b). He has created for himself a strong appearance of partiality and bias in favor of the defendants, particularly BANA. And actually, it's not just an appearance of partiality and bias. In truth and fact, he has gone out of his way to defy the Supreme Court and the docket to help his former boss Akerman Senterfitt and former clients Bank of America. This sets forth the origins of the Court's bias: an extrajudicial episode and prior association. U.S. v. Zagaire, 419 F. Supp. 494 (No. Dist. Cal. 1976), and documents with particularity the manifestation of bias as reflected in the current proceeding. On August 8, 2014, presiding Judge Carlos E. Mendoza rightfully issued a Scheduling Order (Doc. 58) for this current case. This case was assigned a trial by jury and referred to mediation (Doc. 59). This case is currently in discovery with a deadline of December 31, 2014 and Plaintiffs have already submitted an Expert Witness Report by October 1, 2014. The Plaintiffs were in the process of preparing their interrogatories and document request when, out of the blue, Judge Kelly steps in and issues a pushy Report and Recommendation. This would be a saving grace for the defendants thereby saving discovery time and expenses for his friends and avoiding further exposure that the Plaintiffs have in store for them in discovery. This is truly a manifest injustice to the Plaintiffs in this case. The Plaintiffs have already suffered enough abuse and damages at the hands of the defendants and injustice during prior litigation. Instead of rightfully allowing this case to develop through discovery and proceed to mediation and likely to trial by jury, Magistrate Judge Kelly wouldnt have it! It was imperative 9
that he stop it NOW and interject his erroneous Report and Recommendation with the intention of assisting the Defendants, especially Bank of America and his former employer Akerman Senterfitt who is somewhat implicated in this case 5 . In their complaints and responses, the Plaintiffs have brought prior summary judgments into question as being issued based on fraud and misconduct by the Defendants, particularly Bank of America while being represented by Akerman Senterfitt. As the Plaintiffs have thoroughly explained in their Opposition to Magistrate Judge Gregory J. Kellys Report and Recommendation, there is more than enough reason to believe that judge Kellys partiality is not only reasonably questioned but clearly evident. II. HONORABLE MAGISTRATE JUDGE KELLYS IMPARTIALITY MIGHT REASONABLY BE QUESTIONED.
In light of the facts presented herein and in the Plaintiffs Opposition to Magistrate Judge Gregory J. Kellys Report and Recommendation 6 , it is indisputable that an objective analysis of these facts would reasonably call into question Judge Kellys impartiality. The Judges conduct in entering his Report and Recommendation (Doc. 68) and most recently in his Order (Doc. 70) regarding Plaintiffs Motion to Compel causes the Plaintiffs a well-reasoned fear that he is not neutral and detached, necessitating the instant motion. Clearly, Magistrate Judge Kelly has essentially bent over backwards to provide his input in this case and make sure that it gets dismissed. His consistent input is quite disturbing. After issuing his Report and Recommendation, his most recent Order (Doc. 70) denying the Plaintiffs Motion to Compel the following day it was filed, his very first words in this Order were:
5 See Judicial Notices, Doc. 40 & 57. 6 Docket number had not yet been assigned when the Plaintiffs mailed this Motion for Disqualification. 10
On September 23, 2014, the undersigned entered a report and recommendation recommending that the Court dismiss this action with prejudice as barred by the doctrine of res judicata. That is how Judge Kelly starts his introduction in denying Plaintiffs Motion to Compel, which by the way, whether he likes it or not, the Plaintiffs are in fact in discovery. We can definitely assume that he is saving his favorite defendants some much needed time, money and aggravation. Nonetheless, he denies the Plaintiffs Motion to Compel 7 with his Order 8 and states for doing so reason that the deadline for objections has not yet passed and due to the pending recommendation that the case be dismissed with prejudiced, the Court finds that in the interest of the parties 9 and the Courts efficiency, the Motion should be denied. The Plaintiffs filed their Motion to Compel requesting that the Defendants provide Initial Disclosures which are required by this Court and by the Federal Rules of Civil Procedure early in discovery. The Plaintiffs have demonstrated Defendant BANAs careless demeanor and misconduct in this regard and still, Judge Kelly continues to provide an umbrella of protection for Defendant Bank of America, thereby violating Rule 26 and Rule 37 of the Federal Rules of Civil Procedure and violating the Plaintiffs due process rights under these rules in the process. It is clearly evident that Judge Kelly is going above and beyond with his involvement in this particular case by emphatically recommending this case wrongfully dismissed, not once but
7 Doc. 69 8 Doc.70 9 The interest in the parties that he is clearly biased in favor for, BANA and its co-conspirators along with the documents and accusations that might implicate his former employer Akerman Senterfitt. 11
twice, and paving an easy highway for Defendant BANA and its co-conspirators in the process. The only thing missing in Judge Kellys written Order 10 and his Recommendation 11 are flashing neon lights showing his bias and partiality in favor of the Defendants. He will not let it go and has now made it his personal mission to have the Plaintiffs claims wrongfully dismissed. CONCLUSION One of the foundational underpinnings of our judicial system is equality under the law Plaintiffs will be deprived of this constitutional guarantee and would suffer another manifest injustice should its cases be contaminated by a biased magistrate judge whos Order against the Plaintiffs is of a personal nature and has already deemed the Plaintiffs current action as barred by res judicata even though he has clearly not reviewed their complaints, their new causes of action which includes events and exhibits after litigation, their exhibits, their judicial notices, their new facts, and their new claims of fraud which implicates their former employer and likely the clients that he used to represent, Bank of America 12 . All of these factors cause the Plaintiffs, and would cause a casual observer, to reasonably question the partiality of the Honorable Judge Gregory J. Kelly and therefore, the Plaintiffs respectfully request that this Court disqualify Judge Kelly from this case and all his biased orders and recommendations be vacated in the process. This motion should be granted.
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10 Doc. 70. 11 Doc. 68. 12 For many years, Bank of America has been one of Akerman Senterfits biggest clients. It is almost impossible that Judge Kelly did not represent several Bank of America cases during his employment as an attorney with Akerman Senterfitt. 12
499 Cellini Ave NE Palm Bay, Florida 32907 (321) 676-4198 (321) 750-6697 Email: andyecorso@yahoo.com
CERTIFICATE OF SERVICE
I do hereby CERTIFY that a true and correct copy of the foregoing has been furnished to Marc T. Parrino. Esq.; Kevin W. Cox, Esq.; Gary Soles; and Meghan D. Engle by: ( ) mail ( ) fax ( ) mail and fax ( ) email on this_______ day of____________________, 20______.
Earl Clanton, Jr. v. Raymond Muncy, Warden Edward Murray, Director, Department of Corrections Attorney General of The State of Virginia, 845 F.2d 1238, 4th Cir. (1988)