Los Alamos National Bank v. Potter et al

UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
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06/10/06
Los Alamos National Bank v. Jeffrey W. Potter, et al.
05-01149
Order Denying [26-1] Motion for Recusal of Judge by Martin S. Friedlander .
Received on: 2006-02-13 14:32:38.000
2006-02-13 00:00:00.000
2006-02-13 00:00:00.000
Ellen Snyder
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UNITES STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
In re:
Jeffery Watson Potter,
Debtor. No. 11-05-14071 MS
Los Alamos National Bank,
Plaintiff,
v. Adv. No. 05-1149 M
Jeffery W. Potter, Legal Defense
and Maintenance Trust of California
Dated 8/25/03, Mariana Danilovic, Trustee,
Martin S. Friedlander, Kitty Miller,
French & French Fine Properties, Inc.
and Summit Investment Company, LLC,
Defendants.
ORDER DENYING MARTIN S. FRIEDLANDER’S REQUEST
FOR RECUSAL OF JUDGE
THIS MATTER is before the Court on Martin S. Friedlander’s Request for Recusal of Judge
(the “Request”) filed on February 3, 2006. Having reviewed the Request and the applicable law, the
Court denies the Request and finds:
1. Martin S. Friedlander (“Friedlander”) is a creditor in this bankruptcy proceeding and a party
in this adversary proceeding.
2. Friedlander states that as disclosed by the Court at a status conference in the bankruptcy
proceeding, a former law clerk of the Court is the daughter of Richard P. Cook (“Cook”), who is a
creditor in the bankruptcy proceeding and a party in another adversary proceeding related to this
bankruptcy proceeding.
3. Cook is not a party to this adversary proceeding.
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Discussion
Recusal is governed by 28 U.S.C. § 455, which states in relevant part:
§ 455. Disqualification of justice, judge, or magistrate judge
(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; . . .
28 U.S.C. § 455(a) and (b)(1).
Recusal under § 455 is warranted where “a reasonable person, knowing all the relevant facts,
would harbor doubts about the judge’s impartiality.” Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir.
1987). “[R]ecusal is necessary if there is evidence of actual bias. . .” Frates v. Weinshienk, 882 F.2d
1502, 1504 (10th Cir. 1989). Involvement of a former law clerk in a proceeding, such as counsel for a
party, is not sufficient to require recusal of a judge. See In re Cooke, 160 B.R. 701, 707 (Bankr. D.
Conn. 1993)(recusal not necessary where former law clerk represented a party in a case); and
Jorgensen v. Cassiday, 320 F.3d 906, 912 (N. Mariana Islands 2003)(recusal not warranted where
one of the parties was a former law clerk of presiding judge). The relationship between Cook and this
Court is even more distant than those described in Jorgensen and In re Cooke. Moreover, while the
former law clerk is related to a party, she is not herself a party. The Court finds that recusal is not
appropriate. Cook is not a party to this adversary proceeding and even though he is a party in the
bankruptcy proceeding, the relationship between the Court and Cook through Cook’s daughter is too
tenuous to cause a reasonable doubt as to the Court’s impartiality. Friedlander has presented no
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1 Friedlander argues that the Court may not rule on any other matters in this adversary
proceeding until it has ruled on the Request. However, Friedlander is referring to a requirement from a
statute that only applies to District Court judges. See 28 U.S.C. § 144 (requiring that a presiding judge
proceed no further in a proceeding until another judge rules on the sufficiency of the affidavit of bias);
Pilla v. American Bar Ass’n, 542 F.2d 56, 58 (Ct. App. Minn. 1976)(“Section 144 is limited in
application to proceedings in a district court.”).
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evidence supporting a finding of bias or showing that the Court’s impartiality might reasonably be
questioned.1
THEREFORE, IT IS ORDERED that the Request is DENIED.
MARK B. McFEELEY
UNITED STATES BANKRUPTCY JUDGE
I certify that on the date shown on the attached document verification, a true and correct copy of
the foregoing was either electronically transmitted, faxed, delivered or mailed to the listed counsel
and/or parties.
James R. Jurgens
Attorney for Plaintiff
100 LaSalle Circle, Suite A
Santa Fe, NM 87505
Martin S. Friedlander, Esq.
Defendant pro se
10350 Wilshire Blvd.
Suite 603
Los Angeles, CA 90024
Chris W. Pierce
Attorney for Debtor
P.O. Box 6
Albuquerque, NM 87103
Summit Investment Company, LLC
Attention: Jeffrey W. Potter
P.O. Box 8280
Santa Fe, NM 87504-8280
Alice N. Page
U.S. Trustee
P.O. Box 608
Albuquerque, NM 87103
Eric Sommer, Esq.
Attorney for French & French
P.O. Box 1984
Santa Fe, NM 87504
Legal Defense and Maintenance Trust
c/o Mariana Danilovic, Trustee
20380 Big Rock Drive
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Malibu, CA 90024
Kitty Miller
P.O. Box 8748
Santa Fe, NM 87504
Ellen C. Snyder
Law Clerk
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