Cook v. El Llano Summit Caja Del Rio, LLC et al

UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
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06/10/06
Richard P. Cook v. El Llano Summit Caja Del Rio, LLC, et al.
05-01218
Order Denying [26-1] Motion For Stay Pending Appeal. by Martin S. Friedlander .
Received on: 2006-03-21 11:00:07.000
2006-03-21 00:00:00.000
2006-03-21 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
Richard P. Cook,
Plaintiff,
v. 	Adv. No. 05-1218 M
El Llano Summit Caja Del Rio, LLC
and Jeffrey W. Potter,
Defendants.
ORDER DENYING MARTIN S. FRIEDLANDER’S REQUEST
FOR IMMEDIATE STAY PENDING APPEAL OF THE
ORDER DENYING RECUSAL
THIS MATTER is before the Court on the Request for Immediate Stay (the “Motion”)
filed on March 2, 2006 (Doc. No. 25) by Martin S. Friedlander (Friedlander), pro se.
Friedlander requests a stay of all proceedings, including this bankruptcy proceeding, pending
appeal of the Order Denying Martin S. Friedlander’s Request for Recusal of Judge (Doc. No. 23)
(“Order Denying Recusal”). After considering the Motion and the applicable law, the Court will
deny the Motion.
Potter filed this voluntary Chapter 11 bankruptcy proceeding on May 19, 2005. On
September 29, 2005, this foreclosure proceeding was removed to this Court from New Mexico
State Court. Friedlander was attorney for debtor-in-possession Jeffrey W. Potter (“Potter”) in
the State Court proceeding. Friedlander argues that a stay is necessary to allow the appeal of the
Order Denying Recusal because the Court is objectively disqualified to preside over this
bankruptcy proceeding and the related adversary proceedings. Friedlander argues that the Court
is biased because a former law clerk of the Court is the daughter of the Plaintiff in this
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1Rule 62, Fed.R.Civ.P. applies to stays of proceedings to enforce a judgment.
Discretionary stays pending appeal are governed by Rule 62(c), Fed.R.Civ.P., while stays issued
as a matter of right are usually confined to money judgments and require the posting of a
supersedeas bond in accordance with Rule 62(d), Fed.R.Civ.P. In re Porter, 54 B.R. 81, 82
(Bankr.N.D.Okla. 1985). Rule 62(d), Fed.R.Civ.P. is inapplicable to the Debtor’s Motion for
Stay Pending Appeal.
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proceeding. Friedlander also asserts that the former law clerk is an officer of El Llano Summit
Caja Del Rio, LLC a defendant in this adversary proceeding.
Friedlander argues that due to the close relationship between judges and law clerks, it
should follow that the Court is objectively biased and should recuse from this proceeding. Next,
Friedlander argues that when the Court itself revealed the relationship at a status conference at
which Friedlander was not present, the Court was sending a signal that it may be objectively
disqualified. However, Friedlander interprets the Court’s disclosure as another indication of
objective bias. Finally, Friedlander asserts a concern that he will be “home-towned” by the
Court and the other local parties in this proceeding.
Stays pending appeal are governed by Rule 62, Fed.R.Civ.P.1
, made applicable to
bankruptcy proceedings by Rule 7062, Fed.R.Bankr.P., and by Rule 8005, Fed.R.Bankr.P. Rule
8005 provides, in relevant part:
Notwithstanding Rule 7062 but subject to the power of the district court and the
bankruptcy appellate panel reserved hereinafter, the bankruptcy judge may
suspend or order the continuation of other proceedings in the case under the Code
or make any other appropriate order during the pendency of an appeal on such
terms as will protect the rights of all parties in interest.
Rule 8005, Fed.R.Bankr.P.
Because a stay pending appeal is similar in nature to a request for a preliminary
injunction, courts consider the same factors used to determine whether to grant a preliminary
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2 It should be noted that the full discussion of the Court’s reasoning behind the decision
not to recuse is set out in the Order Denying Martin S. Friedlander’s Request to Recuse filed in
Adv. No. 05-1149 M, Doc. No. 31.
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injunction in determining whether a stay pending appeal is appropriate. In re Porter, 54 B.R. 81,
82 (Bankr.N.D.Okla. 1985). In order to obtain a stay pending appeal, the requesting party must
demonstrate the following factors: 1) that the requesting party is likely to prevail on the merits of
the appeal; (2) that the requesting party will suffer irreparable harm without a stay; (3) that other
interested persons will not suffer substantial harm if a stay were imposed; and (4) that the public
interest will not be harmed by a stay. Id.; In re Sunflower Racing, Inc., 221 B.R. 940, 941
(D.Kan. 1998) (citations omitted).
Friedlander’s arguments do not convince the Court that he is “likely to prevail on the
merits of the appeal.” Porter, 54 B.R. at 82; see also In re Haas, 292 B.R. 167, 181 (Bankr.
S.D.Ohio 2003) (denying stay pending appeal of recusal motion because none of the elements
required for granting stay were shown)(citing In re Barnes, 119 B.R. 552, 558 (S.D.Ohio 1989)
(denying plaintiff’s motion for temporary injunction pending appeal, concluding that plaintiff’s
failure to show any probability of success on the merits of the appeal “is dispositive in [the]
determination of Plaintiff’s entitlement to temporary or preliminary injunctive relief.”) (citations
omitted)). Friedlander must show that he is likely to prevail on a petition for writ of mandamus.
In re Bennett, 283 B.R. 308, 311 (10th Cir. BAP 2002) (writ of mandamus is proper avenue to
seek review of judge’s denial of recusal motion). Friedlander cites the relationship of the Court
to certain parties through his former law clerk. As discussed in the Court’s Order Denying
Recusal,2 a former law clerk’s involvement, either as counsel or as a party, in a case does not
automatically warrant recusal. The fact that the Court disclosed the information during a status
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conference at which Friedlander was not present does not add weight to Friedlander’s probability
of success on the merits of the appeal. To conclude that the Court is biased simply because the
Court disclosed the relationship between a party and his former law clerk is unsupported by any
objective evidence of bias. Hinman v. Rogers, 831 F.2d 937, 939 (10 th Cir. 1987) (“A judge
should not recuse himself on unsupported, irrational, or highly tenuous speculation.”); In re
Cooke, 160 B.R. 701, 708 (Bankr. D. Conn. 1993) (A determination of bias must be based on
extrajudicial conduct rather than conduct arising during the course of the proceeding.)
With respect to the other requirements for a stay pending appeal, Friedlander has failed to
demonstrate that he will be irreparably harmed if a stay pending appeal is not granted, that other
interested parties will not suffer substantial harm if a stay were imposed and that the public
interest will not be harmed by a stay. Potter has filed a disclosure statement and a Chapter 11
plan. A stay pending appeal will cause an unreasonable delay in this process.
THEREFORE, IT IS HEREBY ORDERED that the Motion 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.
Grey Handy
Attorney for Cook
P.O. Box 669
Santa Fe, New Mexico 87501-669
Martin S. Friedlander, pro se
10350 Wilshire Blvd., Suite 603
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Los Angeles, CA 90024
Chris W. Pierce
Attorney for Debtor
P.O. Box 6
Albuquerque, NM 87103
Ellen C. Snyder
Law Clerk
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