Opinion
No. 13-60033 No. 13-60034 No. 13-60035 No. 13-60040 No. 13-60041 No. 13-60042
08-25-2014
In re: JIM SLEMONS HAWAII, INC., Debtor, JIM SLEMONS HAWAII, INC., Appellant, v. CONTINENTAL INVESTMENT COMPANY, LTD; et al., Appellees. CONTINENTAL INVESTMENT COMPANY, LTD, Appellant, v. JIM SLEMONS HAWAII, INC., Appellee, UST - UNITED STATES TRUSTEE, HONOLULU; et al., Interested Parties. CONTINENTAL INVESTMENT COMPANY, LTD, Appellant, v. JIM SLEMONS HAWAII, INC., Appellee.
NOT FOR PUBLICATION
BAP No. 11-1464 MEMORANDUM BAP No. 11-1468 BAP No. 11-1475 BAP No. 11-1464 BAP No. 11-1468 BAP No. 11-1475 Appeals from the Ninth Circuit Bankruptcy Appellate Panel
Markell, Jury, and Taylor, Bankruptcy Judges, Presiding
Submitted June 21, 2014 San Francisco, California Before: KOZINSKI, Chief Judge, and FISHER and WATFORD, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
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1. The bankruptcy court did not abuse its discretion by denying debtor's second motion to recuse Judge Faris. No reasonable person could conclude, based on this record, that Judge Faris's impartiality might be questioned. See In re Focus Media, 378 F.3d 916, 929-30 (9th Cir. 2004). Even assuming the November 9, 2009, order Judge Faris entered differed from his oral ruling, debtor has failed to show why such a discrepancy would demonstrate impermissible bias requiring recusal, rather than merely providing "grounds for appeal." Liteky v. United States, 510 U.S. 540, 555 (1994). The local rules at the time did not require signatures from either the United States Trustee or debtor, and Judge Faris provided ample time for the parties to review the proposed order. Debtor could have commented on the proposed order prior to entry, or appealed the order before it became final. That debtor failed to take basic, necessary steps to address what it believed to be an erroneous order does not in any way cast doubt upon Judge Faris's impartiality.
2. The bankruptcy court did not abuse its discretion by denying debtor's motion to reopen. Debtor provided no legal or factual basis for reopening the proceeding. The "facts" that debtor relied on were unrelated to the merits of the second recusal motion, and the vague assertion of "new matters" did not warrant reopening the matter.
3. We decline to exercise jurisdiction over Continental's cross-appeal of the recusal order. "Ordinarily, only a party aggrieved by a judgment or order of a [lower] court may exercise the statutory right to appeal therefrom." Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326, 333 (1980). Subject to certain prudential exceptions, a party which has prevailed before the lower court is not considered aggrieved. See Envtl. Prot. Info. Ctr., Inc. v. Pac. Lumber Co., 257 F.3d 1071, 1075 (9th Cir. 2001). Continental prevailed below and does not even attempt to explain how this case falls within a prudential exception to our general rule. Because Continental was not aggrieved by the bankruptcy court's denial of debtor's second motion to recuse, it may not challenge that order's factual findings on appeal.
4. Each party shall bear its own costs on appeal.
AFFIRMED.