In re Calpine Corp. ( 2009 )

08-3658-bk
In re Calpine Corp.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED
AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1 AND
FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT
CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION
MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: “(SUMMARY ORDER).”
UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE
WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV), THE
PARTY CITING THE SUMMARY ORDER MUST FILE AND SERVE A COPY OF THAT SUMMARY ORDER TOGETHER
WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED. IF NO COPY IS SERVED BY REASON OF THE
AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT
DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 25 th day of November, two thousand nine.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 PIERRE N. LEVAL,
9 Circuit Judge,
10 GEORGE B. DANIELS, *
11 District Judge.
12
13 - - - - - - - - - - - - - - - - - - - -X
14
15 IN RE: CALPINE CORPORATION,
16
17 Debtor,
18
19 - - - - - - - - - - - - - - - - - - - -X
20
*
The Honorable George B. Daniels, United States
District Court for the Southern District of New York,
sitting by designation.
1
1 ELIAS A. FELLUSS,
2
3 Appellant,
4
5 -v.- 08-3658-bk
6
7 CALPINE CORPORATION, THE OFFICIAL
8 COMMITTEE OF UNSECURED CREDITORS,
9
10 Appellees.
11
12 - - - - - - - - - - - - - - - - - - - -X
13
14 APPEARING FOR APPELLANT: ELIAS A. FELLUSS, pro se,
15 Centerport, N.Y.
16
17
18 APPEARING FOR APPELLEES: RICHARD M. CIERI, MARC
19 KIESELSTEIN, and DAVID R.
20 SELIGMAN, Kirkland & Ellis LLP,
21 New York, N.Y., and JEFFREY S.
22 POWELL, ASHLEY C. PARRISH, and
23 SCOTT M. ABELES, Kirkland &
24 Ellis, Washington, D.C., for
25 Reorganized Debtors-Appellees.
26
27 MICHAEL S. STAMER, DAVID M.
28 ZENSKY, and PHILIP C. DUBLIN,
29 Akin Gump Strauss Hauer & Feld
30 LLP, New York, N.Y., for
31 Appellee Official Committee of
32 Unsecured Creditors.
33
34 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
35 AND DECREED that the judgment of the district court be
36 AFFIRMED.
37
38 Elias A. Felluss, pro se, appeals from the judgment of
39 the United States District Court for the Southern District
40 of New York (Marrero, J.), dismissing as moot his appeal
41 from a judgment of the United States Bankruptcy Court for
42 the Southern District of New York (Lifland, J.). We assume
43 the parties’ familiarity with the underlying facts, the
44 procedural history, and the issues presented for review.
45
2
1 A district court’s affirmation of a bankruptcy court’s
2 judgment is subject to plenary review; conclusions of law
3 are reviewed de novo and findings of fact are reviewed for
4 clear error. In re First Cent. Fin. Corp., 377 F.3d 209,
5 212 (2d Cir. 2004). Having undertaken such a review, we
6 affirm for substantially the reasons stated by the district
7 court. Felluss’s appeal is equitably moot because the plan
8 of reorganization was substantially consummated and Felluss
9 has not overcome the ensuing presumption of mootness by
10 establishing the factors set forth in In re Chateaugay
11 Corp., 10 F.3d 944, 952-54 (2d Cir. 1993).
12
13 Finding no merit in Felluss’s remaining arguments, we
14 AFFIRM the judgment of the district court.
15
16
17 FOR THE COURT:
18 CATHERINE O’HAGAN WOLFE, CLERK
19
20 By:___________________________
3