court order denying recusal dated june 16 2004

8/8/2019 court order denying recusal dated june 16 2004

1/5

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

www.flsb.uscourts.gov

In re: Case No. 97-14687-BKC-AJC

STEPHAN JAY LAWRENCE, Chapter 7

Debtor.

/

ORDER DENYING DEBTOR'S

MOTION FOR RECUSAL PURSUANT TO 28 U.S.C. 455

THE MATTER came before the Court upon the Debtor's Motion for Recusal

Pursuant to 28 U.S.C. 455 filed June 9, 2004. The Debtor requests this Court recuse

itself from this case on the basis that the judge lacks impartiality and that the judge is a

relevant fact witness in the case. The Court has considered the motion and finds it to be

without merit.

Federal Rule of Bankruptcy Procedure 5004(a) governs the disqualification of

bankruptcy judges and states, in pertinent part:

A bankruptcy judge shall be governed by 28 U.S.C.455, and disqualified from presiding over the

proceeding or contested matter in which the

disqualifying circumstance arises or, if appropriate,

shall be disqualified from presiding over the case.

Pursuant to 28 U.S.C. 455(a), a judge has a duty to disqualify himself when "his

impartiality might reasonably be questioned." The statute provides an objective standard

for recusal. See In re International Business Machines, 618 F.2d 923 (2d Cir. 1980). In

determining whether a judge should disqualify himself, one must ask what a reasonable

person knowing all the relevant facts would think about the impartiality of the judge. In

re Olcese. 86 B.R. 916 (Bankr. N.D.Ohio 1988)(citations omitted).
http://www.flsb.uscourts.gov/http://www.flsb.uscourts.gov/


2/5

The allegations in Debtor's motion fail to provide the necessary grounds for

recusal. The Debtor alleges the undersigned lacks impartiality based on the entry of

certain orders. The Debtor asserts the Court has conducted ex-parte proceedings,

prevented the Debtor from obtaining discovery and has excluded the Debtor from

hearings where the subject matter was the Debtor's coercion and incarceration. The

Debtor also asserts recusal is appropriate because the Debtor intends to call the

undersigned as a fact witness in this case.

The Court finds the Debtor's allegations of lack of impartiality to be false and

wholly without merit. This Court accepted proposed orders submitted by the parties for

entry which supported their respective positions, as is a common practice in the Court.

The fact the Court chose not to enter the order proposed by the Debtor is not a basis for

recusal. The Court was persuaded the law and the facts in this case supported the

position of the Trustee and used substantial portions of the Trustee's proposed order

which the Court modified substantially in preparation of the order to which the Debtor

takes exception. The Court has not conducted any unauthorized ex-parte proceedings; it

has not prevented the Debtor from obtaining discovery of relevant or material facts that

are the subject of any issues in this case; and, it has not excluded the Debtor from any

hearings wherein the coercive effect of Debtor's incarceration was the subject matter of

the hearing. The Debtor fails to cite any facts to support his false allegations.

To disqualify a judge as biased or prejudiced pursuant to 28 U.S.C. 455, a party

must allege bias derived from an extrajudicial source. US v. Grinnell Corp., 384 U.S.

563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778, 789 (1966). The judge's bias must be

personal and not judicial in nature. In re Beard. 811 F.2d 818, 827 (4th Cir. 1987). After

a judge has heard a matter and has ruled against a party, it is not sufficient to claim

2


3/5

prejudice because of the adverse ruling. The facts proffered in support of the motion

with respect to the undersigned's impartiality pertain to judicial decisions or proceedings

and not to extrajudicial sources, and are no basis for recusal.

As to the Debtor calling the judge as a witness, the undersigned is not qualified to

be a fact witness in this case. Apparently, the Debtor is under the impression that the

undersigned is a neighbor of his who could testify as to the Debtor's "lifestyle" to rebut

the allegations contained in an affidavit of record. I am not a neighbor of the Debtor, but

actually live nearly 7 miles from the southernmost point of the city of Aventura, Florida,

the Debtor's place of residence. Two other cities, North Miami and North Miami Beach,

are between the city of Aventura, his residence, and my residence. It is a gigantic stretch

to call me his neighbor.

I do not have any recollection whatsoever of having met or having even seen the

Debtor where the Debtor claims I did. Prior to receiving his motion, I did not know of

the existence of the "Country Club Drive bicycle/running path." I do not recall having

ever visited the Borders Book store in Aventura, though I have been to the Barnes &

Noble bookstore in Aventura. I also have no idea of the Debtor's mode of transportation

prior to his incarceration nor am I familiar with the type of clothes he wore prior to his

incarceration. The alleged grounds to recuse on the basis I will be a fact witness are a

sham and are simply drummed up in an effort to shop for another judge.

The Debtor's suggestion that I be called as a fact witness to testify on the issue of

whether he had a lavish lifestyle prior to his incarceration, as raised in an affidavit of

record filed subsequent to his incarceration, is simply another attempt to evade the issues

in this case. Obviously, the issue of Debtor's lifestyle has nothing to do with the

adjudication requiring the Debtor's incarceration as it arose subsequent thereto.

3


4/5

However, if the issue was relevant and the false statements about by being his neighbor

and seeing him on a bike path or in a bookstore were true, they would hardly qualify me

to testify as to his lifestyle. The Debtor's actual neighbors who live in his building and

others who sold him food and clothing and provided his transportation would be much

more able to offer evidence on the lifestyle issue.

Section 455 of title 11, United States Code, is not intended "to enable a

discontented litigant to oust a judge because of adverse rulings made, for such rulings are

reviewable otherwise." Berger v. US, 255 U.S. 22, 31, 41 S.Ct. 230, 232, 65 L.Ed. 481,

483 (1921). Granting the Debtor the relief he is requesting would relieve me of any

further responsibilities in this case, but the Court has an obligation to hear all matters

assigned to it "unless some reasonable factual basis to doubt the impartiality or fairness

of the tribunal is shown by some kind of probative evidence." Qlcese, 86 B.R. at 918.

There are no allegations that any such probative evidence exists.

The Court harbors no personal bias or prejudice with respect to the Debtor or his

case and, in fact, has a great deal of sympathy for him in his incarcerated position; but,

even if all of the foregoing were considered to be true, none of the allegations are

relevant to the issues which resulted in the Debtor's denial of his discharge and

subsequent incarceration. Accordingly, it is

ORDERED AND ADJUDGED that the Debtor's Motion for Recusal Pursuant

to 28 U.S.C. 455 filed June 9, 2004 is DENIED.

ORDERED in the Southern District of Florida on June (o , 2004.

QAWA. JAY Cfe^TOL^JUDGE

U.S. BANKRUPTCY COURT


5/5

cc: Paul A. Avron, Esq., Attorney for Alan L. GoldbergStephan Jay Lawrence, Debtor (y { fry [AA M ^ / (W ' W ^ -^ A X A d

5

court order denying recusal dated june 16 2004

Documents