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IN RE BUCURESCU

United States District Court, S.D. New York


September 15, 2004.

IN RE: NICHITA MARIUS BUCURESCU AND DOINA M. BUCURESCU, Debtors. NICHITA MARIUS BUCURESCU AND DOINA M. BUCURESCU, Appellants,
v.
LAWRENCE FARKAS, JEFFREY FARKAS AND 190A REALTY CORP., Appellees.

The opinion of the court was delivered by: MIRIAM CEDARBAUM, Senior District Judge

MEMORANDUM OPINION

Appellants Nichita Marius Bucurescu and Doina M. Bucurescu, move to disqualify me from presiding over this action pursuant to 28 U.S.C. § 455.*fn1 For the reasons discussed below, the motion is denied.

BACKGROUND

  Appellants, who are proceeding pro se, appeal from an Order of the United States Bankruptcy Court for the Southern District of New York (Blackshear, J.) dated February 6, 2004, dismissing appellants' Chapter 7 proceeding with prejudice. The Notice of Appeal and related documents were entered on the docket of this Court on May 10, 2004. The case was originally referred to Judge Kaplan and was subsequently reassigned to me on May 25, 2004. The Case Processing Clerk notified my chambers that a copy of the Notice of Assignment had been mailed to each of the parties.

  My chambers then notified the parties that an initial conference would be held on June 15, 2004. By letter of June 12, 2004, appellants requested a two week adjournment of the conference to allow them time to hire an attorney. The adjournment was granted and the conference was rescheduled for June 29, 2004.

  At the June 29th conference, the attorney for appellees made clear that he planned to move promptly to dismiss the appeal. It was explained to the parties that the motion must be made and responded to in accordance with my individual rules of practice. Appellants, who appeared pro se, objected to having to oppose the motion within that time frame. However, I explained that additional time to respond was unnecessary because appellants could begin working on their opposition immediately since they had been told the ground on which appellees intended to move.

  On July 12, 2004, appellees filed a motion to dismiss the appeal and, in accordance with my individual rules, requested a return date of August 5, 2004. Thus, any opposition appellants wished to file was required by July 28, 2004. No opposition was filed by that date, however, on July 29, 2004, appellants filed this motion to disqualify me from presiding over this matter.

  Appellants' motion asserts several grievances, however, the central assertion is that I showed bias and prejudice toward the appellees by "unfairly" and "illegally" granting appellees' motion to dismiss. In fact, there was no such motion pending at that time and no motion was granted at the initial conference on June 29, 2004. Appellants allege that I have a personal interest in seeing appellees prevail, but do not articulate what that interest might be. Appellants also assert that my "personal decision" not to hold a jury trial to decide their appeal is evidence of my personal bias against them. In addition, appellants assert that they were deprived of their constitutional and civil rights because they never received a notice that this case was assigned to my calendar.

  DISCUSSION

  Appellants do not specify which provisions of § 455 they rely on. Only two are possibly relevant. Section 455(a) requires a judge to disqualify herself whenever her "impartiality might reasonably be questioned." 28 U.S.C. § 455(a). Section 455(b)(1) requires recusal whenever a judge "has a personal bias or prejudice" for or against one party. 28 U.S.C. § 455(b)(1). Although in certain instances § 455(a) may provide broader grounds for disqualification than § 455(b)(1), that is not the case when, as here, the moving party alleges no grounds for recusal other than the district judge's alleged bias or prejudice. Apple v. Jewish Hospital & Medical Center, 829 F.2d 326, 333 (2d Cir. 1987); see Herskowitz v. Charney, No. 93 Civ. 5248, 1994 WL 455172, at *2 (S.D.N.Y. Aug. 18, 1994). "The proper standard to apply when considering a motion for recusal based on alleged bias or partiality is whether `a reasonable person, knowing all the facts, would conclude that the court's impartiality might reasonably be questioned.'" Ted Lapidus, S.A. v. 77 World Design, Inc., No. 94 Civ. 7694, 1997 WL 381794, at *2 (S.D.N.Y. July 10, 1997) (quoting Apple, 829 F.2d at 333); Herskowitz, 1994 WL 455172 at *2.

  All of appellants' grievances relate to matters that form a part of this litigation. "[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion . . . unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible." Litkey v. United States, 510 U.S. 540, 555 (1994). Nothing that has happened during the course of this action would support such a finding.

  Appellants' complaints are principally addressed to the briefing schedule which was established at the initial conference for appellees' announced intention to move to dismiss the appeal. Appellants appear to believe that the motion was in fact granted, and the appeal dismissed. However, appellants are mistaken. No such ruling was made. At the conference, appellees announced that they would be moving to dismiss the appeal on the ground that appellants had not timely filed a brief in support of their appeal, as required by Federal Rule of Bankruptcy Procedure 8009. I explained to the appellants that they should focus on that in their opposition to the motion, and that they should submit a brief in support of their appeal if they had not already done so.

  Appellants also complain that my statement that a jury trial is not available for a bankruptcy appeal shows my bias because the district court's civil cover sheet has a box on which a jury demand can be indicated. As was repeatedly explained at the initial conference, although juries are available for the trial of many of the actions filed in this court, juries do not decide appeals.

  Although the clerk's office notified my chambers that it had mailed a copy of the notice of assignment to the parties as of May 25, 2004, appellants assert that they were not aware that this case had been assigned to my calendar. However, even if appellants did not receive that notice, they learned of the assignment when my chambers contacted them to set up the initial conference. Moreover, appellants sent a request for an adjournment to my chambers. Appellants' complaints about the lack of a conference transcript, and being contacted by telephone rather than by letter regarding the rescheduling of the conference, do not show bias or prejudice on my part and are not valid grounds for disqualification. The conference was adjourned and rescheduled in response to their request.

  Several of appellants' other statements amount to allegations of a conspiracy among several judges of this court to subvert their appeal and to "commit res judicata." However, as explained above, appellants' grievances do not show any bias or prejudice on the part of the judges of this court.

  Although the facts stated in appellants' affidavit must be accepted as true, their legal sufficiency should be examined, because "[t]here is as much obligation upon a judge not to recuse himself when there is no occasion as there is for him to do so when there is." Rosen v. Sugarman, 357 F.2d 794, 797 (2d Cir. 1966) (citations omitted). None of appellants' allegations is legally sufficient to warrant recusal. Each is directly related to my permitting appellees to file a motion to dismiss and requiring appellants to submit their opposition to the motion within the time frame set out in my rules of practice. CONCLUSION

  For the foregoing reasons, appellants' motion for disqualification pursuant to 28 U.S.C. § 455 is denied. If appellants wish to oppose appellees' pending motion to dismiss, that opposition must be received by no later than September 30, 2004.

  SO ORDERED.


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