Opinion
Case No. 96-00871-B11, Adv. No. 06-90341-B11.
November 20, 2006
ORDER ON MOTION TO DISQUALIFY JUDGE
Plaintiffs, the Keenans, have moved to disqualify this judge from the pending adversary proceeding, brought by plaintiffs against the Liquidating Trustee and his attorney professionals. The motion came on regularly for hearing on November 13, 2006, and was thereafter taken under submission.
The timing of plaintiffs' motion is of some curiosity, inasmuch as the adversary proceeding was filed and assigned to this Court on June 30, 2006, and because the grounds asserted in support of the motion, to the extent they exist at all, have allegedly existed for years. On September 11, 2006, defendants filed their motion to dismiss or for summary judgment, and a motion to strike pendent state law claims pursuant to California's Anti-SLAPP provisions. The motions were noticed for hearing for October 10. Because of the Court's schedule, the hearing was changed to October 23. Meanwhile, pursuant to the court's Local Rules, opposition to the moving papers was due on or about September 28, as the docket reflected. On or about that date, counsel for plaintiffs filed an ex parte application requesting a 90 day continuance of the hearing and an extension of time to respond. The ground offered in support of the request was the size of the defendants' motions. Defendants filed opposition to the ex parte motion.
Meanwhile, on or about September 25, plaintiffs Keenan, appearing pro se, filed a lawsuit against this judge in the United States District Court. On October 13, in the pending adversary, plaintiffs asked for reconsideration on the request for the 90 day continuance. They also filed the instant motion to disqualify.
The motion to disqualify was based on both 28 U.S.C. § 144 and 455. At the hearing, the Court and counsel for plaintiffs had a colloquy about § 144 and its statutory requirements of an affidavit, and a certificate of good faith by counsel, neither of which had been submitted in support of the motion. The Court and counsel also discussed briefly the authorities that make clear that § 144 is not applicable to bankruptcy judges.
The complaint against this judge filed in the district court alleges this Court's orders in all the underlying proceedings are void because: 1) the judge did not take the required oath upon reappointment in 2002; and 2) the judge was prejudiced against plaintiffs and biased in favor of the trustee. They also alleged various deprivations of constitutional rights and unconstitutional exercises of authority.
What is puzzling to the Court is the significance, if any there is, in the fact that in the pending adversary against Mr. Pyle and his attorneys, the same allegations are made against this judge, although no relief is requested. On the one hand, if the allegations were contained in moving papers and declarations in support of the motion to disqualify, they could be addressed in that context and the motion ruled upon. Does it change anything that the allegations are contained in the body of the complaint that the Court would be called to rule on? Another facet of the issue is that the complaint charges Mr. Pyle and others of conspiring in various ways, and the district court complaint charges this Court with being one of the conspirators. May this Court properly rule on the allegations against Mr. Pyle and his attorneys when the Court is charged with the same conduct?
In light of the foregoing questions, the Court feels close enough to the situation to request an independent and de novo assessment of plaintiffs' motion to disqualify, out of an abundance of caution, and even though § 455 does not require another judge to hear the challenge.
Accordingly, by copy of this Order, the Court requests the Clerk of Court or his deputy conduct a random draw among the three other judges of this Court to determine who will be assigned to hear and resolve plaintiffs' motion to disqualify. That Court shall be free to schedule a new argument, ask for supplemental briefing, and proceed in any manner it deems appropriate. If that court determines this Court is disqualified, then the adversary proceeding shall be reassigned in accordance with the established procedure in this district. If it is determined that this Court is not disqualified, then upon receipt of any such ruling this Court will reschedule the hearing on defendants' motions to dismiss and to strike. In the meantime, absent further order of this or another court with jurisdiction, all prior orders and filing deadlines remain in force and effect.
IT IS SO ORDERED.