Opinion
Case No. 94-32974-K.
July 28, 1997
ORDER RE DEBTORS' "VERIFIED MOTION FOR RECONSIDERATION" AND THE CHAPTER 7 TRUSTEE'S OBJECTION THERETO COMBINED WITH NOTICE OF ENTRY THEREOF
This matter comes before the court on consideration of a motion filed by the above-named debtors, William W. Budrow and Celeste Leone Budrow (the "Budrows"), requesting the court to reconsider or set aside certain orders previously entered by Bankruptcy Judge William H. Brown and the chapter 7 trustee's objection thereto.
By virtue of 28 U.S.C. § 157 (b)(2)(A) this is a core proceeding. The court has jurisdiction of this action under 28 U.S.C. § 1334 (a)-(b) and Miscellaneous District Court Order No. 84-30 entered on July 11, 1984. Based on the case record as a whole, the following shall constitute the court's findings of fact and conclusions of law in accordance with FED. R. BANKR. P. 7052.
The relevant background facts may be briefly summarized as follows. On December 19, 1994, the Budrows filed this joint chapter 7 case. The case was assigned to Judge Brown, who thereafter entered numerous orders, including, but not limited to, the following: (1) Order Denying Motion to Remove From This Jurisdiction; (2) Order Denying Debtor's Discharge; (3) Order Granting Application to Employ Attorney John McManus; (4) Order Granting Application by Edward Montedonico as Attorney; (5) Temporary Restraining Order; (6) Order on Defendants' Motions to Strike, To Dismiss Complaint, and to Reconsider Temporary Injunction; and (7) Order on Plaintiff's Motion to Compel. These orders, along with all orders relating to injunctions and restraining orders, are those to which the Budrows now seek this court to reconsider or set aside.
On April 16, 1997, the Budrows filed a motion for recusal of Judge Brown under 28 U.S.C. § 144 and 455 alleging a personal bias against them and in favor of the chapter 7 trustee. Judge Brown granted the recusal motion of the Budrows "in the interest of preserving the appearance of impartiality." This chapter 7 case was reassigned to the undersigned bankruptcy judge. The Budrows thereafter filed the instant motion for reconsideration, or in the alternative, to set aside the above-mentioned orders previously entered by Judge Brown. The chapter 7 trustee, Edward L. Montedonico, filed a written objection to the instant motion.
On July 11, 1997, the Budrows filed a motion for permission to telephonically attend the hearing on their reconsideration motion, which was denied on that same day due to the nature and importance of the reconsideration hearing set for July 25, 1997. On July 25, 1997, the chapter 7 trustee and his attorney appeared in open court and moved to dismiss the motion for reconsideration due to the Budrows' failure to appear at the scheduled hearing. While the court is unaware of why the Budrows failed to appear at the scheduled hearing on their reconsideration motion, it is mindful that the Budrows are pro se litigants. The court, therefore, strikes from the calendar the Budrows' motion for reconsideration without legal prejudice to their filing a motion, if at all, seeking to reschedule a hearing. Should the Budrows articulate in writing good cause for not appearing at the hearing on July 25, 1997, the court will give serious consideration regarding a rescheduling of the hearing on their reconsideration motion
The court parenthetically observes case authority holding that generally judicial recusals are prospective only and do not invalidate prior judicial actions. Leaman v. Ohio Dep't of Mental Retardation Dev. Disabilities, 825 F.2d 946 (6th Cir. 1987); New York City Housing Dev. Corp. v. Hart, 796 F.2d 976 (7th Cir. 1986) (holding that a judge's recusal ought not require work to be redone by his successor); United States v. Murphy, 768 F.2d 1518 (7th Cir. 1985), cert. denied, 106 S.Ct. 1188 (1986).
Based on the foregoing and the case record as a whole,
IT IS ORDERED AND NOTICE IS HEREBY GIVEN that the Budrows' motion for reconsideration be stricken without legal prejudice in accordance with the foregoing.