Adam Killick v. Harbor Freight Tools USA Inc

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10626
Non-Argument Calendar
____________________
ADAM KILLICK,
Plaintiff-Appellant,
versus
HARBOR FREIGHT TOOLS USA INC,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 5:21-cv-00111-MW-MJF
____________________
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2 Opinion of the Court 23-10626
Before ROSENBAUM, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
Adam Killick appeals pro se following the district court’s
grant of summary judgment in favor of the defendant, Harbor
Freight Tools USA, Inc. (“Harbor Freight”) in this product-liability
action originally brought in Florida state court. We can discern
two arguments from Killick’s brief on appeal. First, Killick argues
that the district court judge and magistrate judge should have sua
sponte recused themselves. Second, he contends that the suit was
improperly removed to federal court because he never served Har-
bor Freight.1
I.
We ordinarily review the district court’s denial of
a recusal motion for an abuse of discretion. Loranger v. Stierheim,
10 F.3d 776, 779 (11th Cir. 1994). While arguments in a civil case
which are raised for the first time on appeal are normally deemed
waived, see Walker v. Jones, 10 F.3d 1569, 1572 (11th Cir. 1994),
1 To the extent that Killick might be attempting to raise other issues in his
initial brief, they are not fairly raised such that we cannot entertain them. See
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681-83 (11th Cir. 2014) (ex-
plaining that a party abandons a claim “when he does not ‘plainly and promi-
nently’ raise it” in his appellate brief). Even assuming that he did fairly raise a
challenge to the district court’s failure to appoint counsel for him, we cannot
conclude that the district court abused its discretion in concluding that Killick
had failed to satisfy the extraordinary circumstances standard to warrant ap-
pointment of counsel in a civil case.
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23-10626 Opinion of the Court 3
when a plaintiff fails to argue for a judge’s recusal before the district
court, we review for plain error the failure to sua sponte recuse,
Hamm v. Members of Bd. of Regents of State of Fla., 708 F.2d 647, 651
(11th Cir. 1983). Under plain error review, the party raising the is-
sue has the burden to show that (1) there is error (2) that is plain
(3) that affects a defendant’s substantial rights and (4) “not correct-
ing the error would seriously affect the fairness of the judicial pro-
ceeding.” Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1329
(11th Cir. 1999).
Recusal is governed, in part, by 28 U.S.C. § 455. Un-
der § 455(a), a judge “shall disqualify himself in any proceeding in
which his impartiality might reasonably be questioned.” 28 U.S.C.
§ 455(a). The test under § 455(a) is “whether an objective, disinter-
ested, 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.” Parker v. Connors Steel
Co., 855 F.2d 1510, 1524 (11th Cir. 1988). Under § 455(a), “a judge
has a self-enforcing obligation to recuse himself where the proper
legal grounds exist.” Murray v. Scott, 253 F.3d 1308, 1310 (11th Cir.
2001) (quotation marks omitted). Generally, bias sufficient to dis-
qualify a judge must stem from extrajudicial sources. Hamm, 708
F.2d at 651. However, an exception exists where a judge’s remarks
in a judicial context demonstrate pervasive bias and prejudice
against a party. Id. Absent evidence of pervasive bias and preju-
dice, “a judge’s rulings in the same or a related case may not serve
as the basis for a recusal motion.” McWhorter v. City of Birmingham,
906 F.2d 674, 678 (11th Cir. 1990).
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4 Opinion of the Court 23-10626
Here, Killick has not shown that either the district court
judge or the magistrate judge plainly erred by failing to sua sponte
recuse themselves. The complained-of actions were all made in the
context of judicial proceedings, and, accordingly, cannot serve as
the basis for holding that the judges should have recused them-
selves in the instant case, absent evidence of pervasive bias and
prejudice, which he has failed to show. McWhorter, 906 F.2d at 678.
Thus, neither the district court judge nor the magistrate judge
plainly erred in failing to sua sponte recuse themselves.
II.
Second, Killick argues that Harbor Freight’s removal of this
case to federal court was improper, and the district court should
have granted his motion to remand the case to state court. Killick’s
argument apparently is that the removal was improper because
Harbor Freight was never served and therefore there was no case
to be removed. We employ a two-tiered standard of review for the
district court’s determination of subject-matter jurisdiction. Be-
cause it involves questions of federal subject matter jurisdiction, we
review the denial of a motion to remand a removed state court ac-
tion de novo. Bailey v. Janssen Pharmaceutica, Inc., 536 F.3d 1202,
1204 (11th Cir. 2008). However, “[t]he district court’s factual find-
ings with respect to jurisdiction . . . are reviewed for clear error.”
United States v. Tinoco, 304 F.3d 1088, 1114 (11th Cir. 2002). Factual
findings may only be overturned under the clear error standard if
we, “on the entire evidence [are] left with the definite and firm con-
viction that a mistake has been committed.” Eggers v. Alabama, 876
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23-10626 Opinion of the Court 5
F.3d 1086, 1094 (11th Cir. 2017) (citation omitted). Section 1446(b)
of Title 28 provides that a defendant may remove a civil action
from a state court by filing a notice of removal in the district court
within 30 days of receipt of a copy of the initial pleading. See 28
U.S.C. § 1446(b).
Here, as an initial matter and notwithstanding Killick’s fail-
ure to timely object to the magistrate judge’s report and recom-
mendation, because Killick’s contentions on appeal involve ques-
tions of federal subject matter jurisdiction, we review the denial of
the motion to remand de novo but the district court’s factual find-
ings for clear error. Tinoco, 304 F.3d at 1114; Bailey, 536 F.3d at
1204.
The magistrate judge did not clearly err in finding that Har-
bor Freight had been served with the summons and complaint and
that Harbor Freight had timely removed the case to federal court.
The magistrate judge found that Killick, at the time represented by
counsel, served Harbor Freight with a summons and copy of the
complaint on April 22, 2021. We do not have a “definite and firm
conviction that a mistake has been committed,” especially because
Killick does not offer compelling argument to the contrary. Eggers,
876 F.3d at 1094. Rather, Killick merely repeats his general asser-
tion that Roane and defense counsel colluded against him. Because
Harbor Freight’s removal of the case to federal court was timely,
and there appears to be no other obstacle to the district court’s ju-
risdiction, the district court properly adopted the magistrate
judge’s recommendation and denied Killick’s motion to remand.
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6 Opinion of the Court 23-10626
AFFIRMED.
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