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UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF FLORIDA
www.flsb.uscourts.gov
In re: Case No. 97-14687-BKC-AJC
STEPHAN JAY LAWRENCE, Chapter 7
Debtor.
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ORDER DENYING DEBTOR'S
MOTION FOR RECUSAL PURSUANT TO 28 U.S.C. 455
THE MATTER came before the Court upon the Debtor's Motion for Recusal
Pursuant to 28 U.S.C. 455 filed June 9, 2004. The Debtor requests this Court recuse
itself from this case on the basis that the judge lacks impartiality and that the judge is a
relevant fact witness in the case. The Court has considered the motion and finds it to be
without merit.
Federal Rule of Bankruptcy Procedure 5004(a) governs the disqualification of
bankruptcy judges and states, in pertinent part:
A bankruptcy judge shall be governed by 28 U.S.C.455, and disqualified from presiding over the
proceeding or contested matter in which the
disqualifying circumstance arises or, if appropriate,
shall be disqualified from presiding over the case.
Pursuant to 28 U.S.C. 455(a), a judge has a duty to disqualify himself when "his
impartiality might reasonably be questioned." The statute provides an objective standard
for recusal. See In re International Business Machines, 618 F.2d 923 (2d Cir. 1980). In
determining whether a judge should disqualify himself, one must ask what a reasonable
person knowing all the relevant facts would think about the impartiality of the judge. In
re Olcese. 86 B.R. 916 (Bankr. N.D.Ohio 1988)(citations omitted).
http://www.flsb.uscourts.gov/http://www.flsb.uscourts.gov/8/8/2019 court order denying recusal dated june 16 2004
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The allegations in Debtor's motion fail to provide the necessary grounds for
recusal. The Debtor alleges the undersigned lacks impartiality based on the entry of
certain orders. The Debtor asserts the Court has conducted ex-parte proceedings,
prevented the Debtor from obtaining discovery and has excluded the Debtor from
hearings where the subject matter was the Debtor's coercion and incarceration. The
Debtor also asserts recusal is appropriate because the Debtor intends to call the
undersigned as a fact witness in this case.
The Court finds the Debtor's allegations of lack of impartiality to be false and
wholly without merit. This Court accepted proposed orders submitted by the parties for
entry which supported their respective positions, as is a common practice in the Court.
The fact the Court chose not to enter the order proposed by the Debtor is not a basis for
recusal. The Court was persuaded the law and the facts in this case supported the
position of the Trustee and used substantial portions of the Trustee's proposed order
which the Court modified substantially in preparation of the order to which the Debtor
takes exception. The Court has not conducted any unauthorized ex-parte proceedings; it
has not prevented the Debtor from obtaining discovery of relevant or material facts that
are the subject of any issues in this case; and, it has not excluded the Debtor from any
hearings wherein the coercive effect of Debtor's incarceration was the subject matter of
the hearing. The Debtor fails to cite any facts to support his false allegations.
To disqualify a judge as biased or prejudiced pursuant to 28 U.S.C. 455, a party
must allege bias derived from an extrajudicial source. US v. Grinnell Corp., 384 U.S.
563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778, 789 (1966). The judge's bias must be
personal and not judicial in nature. In re Beard. 811 F.2d 818, 827 (4th Cir. 1987). After
a judge has heard a matter and has ruled against a party, it is not sufficient to claim
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prejudice because of the adverse ruling. The facts proffered in support of the motion
with respect to the undersigned's impartiality pertain to judicial decisions or proceedings
and not to extrajudicial sources, and are no basis for recusal.
As to the Debtor calling the judge as a witness, the undersigned is not qualified to
be a fact witness in this case. Apparently, the Debtor is under the impression that the
undersigned is a neighbor of his who could testify as to the Debtor's "lifestyle" to rebut
the allegations contained in an affidavit of record. I am not a neighbor of the Debtor, but
actually live nearly 7 miles from the southernmost point of the city of Aventura, Florida,
the Debtor's place of residence. Two other cities, North Miami and North Miami Beach,
are between the city of Aventura, his residence, and my residence. It is a gigantic stretch
to call me his neighbor.
I do not have any recollection whatsoever of having met or having even seen the
Debtor where the Debtor claims I did. Prior to receiving his motion, I did not know of
the existence of the "Country Club Drive bicycle/running path." I do not recall having
ever visited the Borders Book store in Aventura, though I have been to the Barnes &
Noble bookstore in Aventura. I also have no idea of the Debtor's mode of transportation
prior to his incarceration nor am I familiar with the type of clothes he wore prior to his
incarceration. The alleged grounds to recuse on the basis I will be a fact witness are a
sham and are simply drummed up in an effort to shop for another judge.
The Debtor's suggestion that I be called as a fact witness to testify on the issue of
whether he had a lavish lifestyle prior to his incarceration, as raised in an affidavit of
record filed subsequent to his incarceration, is simply another attempt to evade the issues
in this case. Obviously, the issue of Debtor's lifestyle has nothing to do with the
adjudication requiring the Debtor's incarceration as it arose subsequent thereto.
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However, if the issue was relevant and the false statements about by being his neighbor
and seeing him on a bike path or in a bookstore were true, they would hardly qualify me
to testify as to his lifestyle. The Debtor's actual neighbors who live in his building and
others who sold him food and clothing and provided his transportation would be much
more able to offer evidence on the lifestyle issue.
Section 455 of title 11, United States Code, is not intended "to enable a
discontented litigant to oust a judge because of adverse rulings made, for such rulings are
reviewable otherwise." Berger v. US, 255 U.S. 22, 31, 41 S.Ct. 230, 232, 65 L.Ed. 481,
483 (1921). Granting the Debtor the relief he is requesting would relieve me of any
further responsibilities in this case, but the Court has an obligation to hear all matters
assigned to it "unless some reasonable factual basis to doubt the impartiality or fairness
of the tribunal is shown by some kind of probative evidence." Qlcese, 86 B.R. at 918.
There are no allegations that any such probative evidence exists.
The Court harbors no personal bias or prejudice with respect to the Debtor or his
case and, in fact, has a great deal of sympathy for him in his incarcerated position; but,
even if all of the foregoing were considered to be true, none of the allegations are
relevant to the issues which resulted in the Debtor's denial of his discharge and
subsequent incarceration. Accordingly, it is
ORDERED AND ADJUDGED that the Debtor's Motion for Recusal Pursuant
to 28 U.S.C. 455 filed June 9, 2004 is DENIED.
ORDERED in the Southern District of Florida on June (o , 2004.
QAWA. JAY Cfe^TOL^JUDGE
U.S. BANKRUPTCY COURT
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cc: Paul A. Avron, Esq., Attorney for Alan L. GoldbergStephan Jay Lawrence, Debtor (y { fry [AA M ^ / (W ' W ^ -^ A X A d
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