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Khalida v. Clinton B. Henderson and Renata Henderson

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


December 1, 2010

KHALIDA SCHEIDELMAN AND RONALD SCHEIDELMAN, PLAINTIFFS-APPELLANTS,
v.
CLINTON B. HENDERSON AND RENATA HENDERSON, DEFENDANTS-APPELLEES,

Appeal from the United States District Court for the Northern District of New York (Hurd, J.).

The opinion of the court was delivered by: Robert D. Sack,

In re Scheidelman et al.

SUMMARY ORDER

GS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER N OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

OCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUM M ARY ORDER IN A

ENT FILED WITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL APPENDIX OR AN ONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUM M ARY ORDER SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 1 day of December, two thousand ten.

st

PRESENT:

ROBERT A. KATZMANN, GERARD E. LYNCH, Circuit Judges.

09-5322-bk

James Collins,Trustee.

UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the appeal is DISMISSED for lack of appellate jurisdiction.

Plaintiffs-Appellants Khalida Scheidelman and Ronald Scheidelman, pro se, appeal from the December 14, 2009 judgment of the United States District Court for the Northern District of New York (Hurd, J.) affirming the bankruptcy court's denial of a motion to recuse. We assume the parties' familiarity with the underlying facts and the procedural history of the case.

Pursuant to 28 U.S.C. § 158(d), this Court has jurisdiction to review "final" district court decisions stemming from a bankruptcy action. However, the "district court's own decision of an appeal from the bankruptcy court is not a final decision for purposes of appeal to the court of appeals unless the order of the bankruptcy court was final." In re Fugazy Express, Inc., 982 F.2d 769, 775 (2d Cir. 1992). Since the finality requirement is jurisdictional, this Court must consider the issue sua sponte, evenif it is not raised by the parties. In re Lomas Fin. Corp., 932 F.2d 147, 150 (2d Cir. 1991).

In this case, the Appellants appealed to the district court from the bankruptcy court's denial of their motion for recusal. The denial of a motion for recusal ordinarily is not a final order. See United States v. Yonkers Bd. of Educ., 946 F.2d 180, 183 (2d Cir. 1991). Because the bankruptcy court's order was not final and there was not a judgment on the merits at the time of the recusal motion, this Court lacks jurisdiction to review the district court's judgment affirming that order. See In re Lomas Fin. Corp., 932 F.2d at 150 ("There is thus no court of appeals jurisdiction over non-final orders originating in the bankruptcy court."); cf. Dubnoff v. Goldstein, 385 F.2d 717, 723 (2d Cir. 1967) (finding Court lacked jurisdiction over appeal from bankruptcy court's denial of motion to recuse).

Although this Court may construe an appeal from a non-final order as a petition seeking a writ of mandamus, see Caribbean Trading & Fid. Corp. v. Nigerian Nat'l Petroleum Corp., 948

F.2d 111, 115 (2d Cir. 1991) ("We have often deemed it appropriate to treat an appeal dismissed for lack of jurisdiction as a petition for a writ of mandamus."), the Scheidelmanshave not demonstrated that the lower court's refusal to recuse was a clear and indisputable abuse of discretion, see In re Basciano, 542 F.3d 950, 955-56 (2d Cir. 2008). They are therefore not entitled to the issuance of the writ.

Accordingly, the appeal is DISMISSED.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk

3SAO-RH

20101201

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