Opinion
NOT FOR PUBLICATION
MEMORANDUM DECISION DENYING DEBTOR'S MOTIONS TO DISQUALIFY JUDGE JAMES MEYERS AND TO RECONSIDER ORDER TO SHOW CAUSE.
JAMES W. MAYERS, JUDGE UNITED STATES BANKRUPTCY COURT.
On March 27, 2008, this Court held a hearing on several motions in this case and a related adversary proceeding. Among the matters presented by Anibal Mesala Silva ("Debtor"), was a motion to enter discharge, a motion to void the § 341(a) meeting of creditors, and a motion to reconsider an amended minute order entered by Judge Hargrove and dated October 30, 2007. Rather than fulfill his responsibilities as set forth in § 521 and Fed.R.Bankr.P. 4002, the Debtor filed a series of Notices of appearance to invalid Section 341 Meeting of Creditors, which stated he would appear, but not submit to examination. By refusing to submit to examination, the Debtor was preventing the entry of the discharge he requested, and creating the basis to extend the time for interested parties to file objections to discharge. In reviewing the Debtor's request to reconsider Judge Hargrove's ruling as reflected in the Amended Minute Order, the Court became aware of the precondition for not dismissing this case. The condition imposed by Judge Hargrove was a requirement that the Debtor file his tax returns by November 6, 2007.
This Court issued an order after the March 27, 2008 hearing, which included a requirement that the Debtor file a written explanation concerning the status of his tax returns. In addition, the order indicated the case could be dismissed for failure to cooperate with the Trustee as required under § 521, which includes the duty to surrender books and records and provide copies of tax returns.
Rather than file a statement concerning the tax returns that were to have been filed by November 6, 2 007, the Debtor filed a motion to disqualify the undersigned Judge under 28 U.S.C. § 455, and a motion to reconsider the Order to Show Cause. The Court has reviewed those two motions and determined that further hearing would not be helpful.
Pursuant to § 105(a), the Court may issue any order that is necessary or appropriate to carry out the provisions of the Bankruptcy Code. Given the conditions imposed in Judge Hargrove's Amended Minute Order, and the Debtor's written statement of his intent to refuse to be examined by the Trustee until his claims in Adversary No. 07-90588 were decided, it was both necessary and appropriate to enter the Order to Show Cause. Furthermore, the Debtor misconstrues the Order to Show Cause. It does not indicate this case will be automatically dismissed without further hearing. The Order to Show Cause is merely the first step this Court takes in considering whether it would be appropriate to issue a notice of intent to dismiss the case. Before dismissal, a further notice and opportunity for hearing would be provided to interested parties. Therefore, the Court will deny the Debtor's motion to reconsider the Order to Show Cause.
The Court now turns to the Motion for Disqualification under 28 U.S.C. §455. That section provides that:
(a) any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding...
Such a motion must initially be decided by the judge whose impartiality is being questioned. In re Bernard, 31 F.3d 842, 843 (9 Cir. 1994) .
Cir. 1980).
The standard for disqualification is whether the charge of partiality is sufficiently grounded in facts to create in the mind of the fully informed objective disinterested observer a reasonable or significant doubt concerning the judge's impartiality. United States v. Studley, 783 F.2d 934, 939 (9 Cir. 1986). Judicial rulings alone almost never constitute a valid basis for a bias or partiality motion. Liteky v. United States, 510 U.S. 540, 555 (1994) . Bias or prejudice connotes a favorable or unfavorable disposition or opinion that is somehow wrongful or inappropriate, either because it is undeserved, or because it rests on knowledge that the subject ought not to possess, or because it is excessive in degree. .Id. at 550. If the circumstances do not establish a personal bias or prejudice under § 455(b), they are not sufficient to raise a "reasonable question" as to the judge's impartiality for disqualification under § 455(a). United States v. Sibla, 624 F.2d 864, 865 (9
Cir. 2000). The motion or affidavit must allege with particularity the facts that would convince a reasonable person that a bias exists of a personal, not judicial nature. Disqualification based on adverse rulings in a case is limited to only rare and extreme circumstances.
Innuendo and unsupported allegations are not sufficient for disqualification. A judge is presumed qualified to hear a proceeding and the Debtor has the burden of proving otherwise. First Interstate Bank v. Murphy, Weir & Butler, 210 F.3d 983, 987 (9
The only basis for disqualification provided by the Debtor is the issuance of the Order to Show Cause and the Debtor's musings about the possible reasons this Court would issue such an order. The Debtor has not asserted any facts to support his allegations of bias or prejudice. As discussed above, this Court issued the Order to Show Cause to determine whether the Debtor has complied with the October 3 0 Amended Minute Order issued by Judge Hargrove before his retirement, and to ensure that the Debtor understood he must fulfill the statutory duties of a debtor or face the possibility that this case could be dismissed.
The Debtor's Motion to reconsider the Order to Show Cause and the Motion to Disqualify the undersigned are denied. This Memorandum Decision constitutes the Court's findings of fact and conclusions of law. The Court will enter a separate order this same date.