Xin Chen v. Chorches ( 2018 )

17-1319-cv
Chen v. Corches, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a
summary order filed on or after January 1, 2007, is permitted and is
governed by Federal Rule of Appellate Procedure 32.1 and this Court’s
Local Rule 32.1.1. When citing a summary order in a document filed with
this Court, a party must cite either the Federal Appendix or an electronic
database (with the notation “Summary Order”). A party citing a summary
order must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 20th day of February, two thousand and eighteen.
Present:
JOHN M. WALKER, JR.,
PETER W. HALL,
RAYMOND J. LOHIER, JR.
Circuit Judges.
Xin Chen,
Petitioner-Appellant,
v. 17-1319-cv
Ronald I. Chorches, Trustee, Dow Corning
Corporation, Hemlock Semiconductor Corporation,
Richard M. Coan, Trustee, James J. Tancredi,
Judge, Jie Xiao, Debtor,
Respondents-Appellees.
For Petitioner-Appellant: Brian K. Condon, Condon & Associates, PLLC,
Nanuet, NY
For Respondents-Appellees David Austin, (for Ronald I. Chorches), Law Office
of Ronald I. Chorches, Wethersfield, CT; Patrick M.
Fahey, Eric Goldstein (for Dow Corning
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Chen v. Corches, et al.
Corporation & Hemlock Semiconductor
Corporation), Shipman & Goodwin LLP, Hartford,
CT; Tim Miltenberger (for Richard M Coan), Coan,
Lewendon, Gulliver & Miltenberger, LLC, New
Haven, CT; Sandra Slack Glover (for James J.
Tancredi), Assistant United States Attorney,
United States Attorney’s Office for the District of
Connecticut, New Haven, CT
Appeal from a decision entered April 18, 2017, and final judgment entered
April 19, 2017, in the District of Connecticut (Underhill, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the district court’s decision and judgment are
AFFIRMED.
Appellant Xin Chen filed a petition for writ of mandamus in the district
court, requesting the court order the recusal of Bankruptcy Judge Tancredi from all
pending matters relating to her. The district court denied that petition. This is Xin
Chen’s appeal of that denial. We assume the parties’ familiarity with the
underlying facts, the procedural history, the arguments presented on appeal, and
the district court’s rulings which we reference only to explain our decision.
We review for abuse of discretion the denial of a petition for writ of
mandamus. See Mallard v. U.S. Dist. Court for S. Dist. Iowa, 490 U.S. 296, 309
(1989) (“[W]e have required that petitioners [for a writ of mandamus] demonstrate a
‘clear abuse of discretion,’ or conduct amounting to ‘usurpation of [the judicial]
power.’” (quoting Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 383 (1953); De
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Beers Consol. Mines, Ltd. v. United States, 325 U.S. 212, 217 (1945)) (third
alteration in original)).
A judge must disqualify himself “in any proceeding in which his impartiality
might reasonably be questioned” or “[w]here he has a personal bias or prejudice
concerning a party.” 28 U.S.C. § 455(a), (b)(1). “[T]he test to be applied is an
objective one which assumes that a reasonable person knows and understands all
the relevant facts.” In re Int’l Bus. Machs. Corp., 45 F.3d 641, 643 (2d Cir. 1995)
(quotation marks omitted). “‘[J]udicial rulings alone’ the [Supreme] Court [has]
observed, ‘almost never constitute a valid basis for a bias or partiality motion’ and
‘can only in the rarest circumstances evidence the degree of favoritism or
antagonism required’” for recusal. Id. at 644 (quoting Liteky v. United States, 510
U.S. 540, 555 (1994) (first alteration in original)).
The district court properly denied Xin Chen’s petition, and we affirm for
substantially the same reasons the district court recited in its April 18, 2017
written opinion. As that court noted, Xin Chen’s case does not present the “rarest
circumstances” where an adverse judicial ruling implicated the degree of favoritism
or antagonism required for recusal because Judge Tancredi considered the evidence
presented in the first day of the hearing, when he entered the order prohibiting Xin
Chen from traveling outside of the country, and soon thereafter he provided Xin
Chen an opportunity to be heard. Based on Chen’s testimony, Judge Tancredi then
vacated the travel order and ordered the return of her passport. While Xin Chen
also asserts that Judge Tancredi’s order prohibiting her travel showed that he had
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already decided the ultimate issue in the proceeding—whether her divorce from Jie
Xiao was a sham divorce—we disagree. That Jie Xiao conducts business in and
frequents China was only one of multiple reasons Judge Tancredi concluded Xin
Chen should briefly be prohibited from travelling outside of the country. The travel
order also pointed to Xin Chen’s transfer of a significant amount of money to her
parents in China after the bankruptcy case had been filed. Judge Tancredi’s
mention of Jie Xiao’s connection to China in the travel order and his questions
regarding Xin Chen’s citizenship at the hearing would not cause a reasonable
person, knowing and understanding all the relevant facts, to question Judge
Tancredi’s impartiality. See In re Int’l Bus. Machs. Corp., 45 F.3d at 643.
We have considered Xin Chen’s remaining arguments and find them to be
without merit. Accordingly, the district court’s judgment and decision and order are
AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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