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,
LAWRENCE FARKAS, JEFFREY FARKAS AND 190A REALTY CORP., Appellees.
The opinion of the court was delivered by: MIRIAM CEDARBAUM, Senior District Judge
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.
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.
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
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,