Scheidelman v. Henderson ( 2010 )

09-5322-bk
In re Scheidelman et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL R ULE 32.1.1. WHEN CITING A SUM M ARY ORDER IN A
DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL A PPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER
M UST 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
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 1st day of December, two thousand ten.
PRESENT:
ROBERT D. SACK,
ROBERT A. KATZMANN,
GERARD E. LYNCH,
Circuit Judges.
___________________________________________
Khalida Scheidelman and Ronald Scheidelman,
Plaintiffs-Appellants,
-v.- 09-5322-bk
Clinton B. Henderson and Renata Henderson,
Defendants-Appellees,
James Collins,
Trustee.
___________________________________________
FOR APPELLANTS: Khalida Scheidelman and Ronald Scheidelman, pro se, Oxford,
New York.
FOR APPELLEES: Peter A. Orville, Peter A. Orville, P.C., Binghamton, New York.
Appeal from the United States District Court for the Northern District of New York
(Hurd, J.).
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND
DECREED that the appeal is DISMISSED for lack of appellate jurisdiction.
Plaintiffs-Appellants Khalida Scheidelman and Ronald Scheidelman, pro se, appeal from
the December 14, 2009 judgment of the United States District Court for the Northern District of
New York (Hurd, J.) affirming the bankruptcy court’s denial of a motion to recuse. We assume
the parties’ familiarity with the underlying facts and the procedural history of the case.
Pursuant to 28 U.S.C. § 158(d), this Court has jurisdiction to review “final” district court
decisions stemming from a bankruptcy action. However, the “district court’s own decision of an
appeal from the bankruptcy court is not a final decision for purposes of appeal to the court of
appeals unless the order of the bankruptcy court was final.” In re Fugazy Express, Inc., 982 F.2d
769, 775 (2d Cir. 1992). Since the finality requirement is jurisdictional, this Court must consider
the issue sua sponte, even if it is not raised by the parties. In re Lomas Fin. Corp., 932 F.2d 147,
150 (2d Cir. 1991).
In this case, the Appellants appealed to the district court from the bankruptcy court’s
denial of their motion for recusal. The denial of a motion for recusal ordinarily is not a final
order. See United States v. Yonkers Bd. of Educ., 946 F.2d 180, 183 (2d Cir. 1991). Because the
bankruptcy court’s order was not final and there was not a judgment on the merits at the time of
the recusal motion, this Court lacks jurisdiction to review the district court’s judgment affirming
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that order. See In re Lomas Fin. Corp., 932 F.2d at 150 (“There is thus no court of appeals
jurisdiction over non-final orders originating in the bankruptcy court.”); cf. Dubnoff v. Goldstein,
385 F.2d 717, 723 (2d Cir. 1967) (finding Court lacked jurisdiction over appeal from bankruptcy
court’s denial of motion to recuse).
Although this Court may construe an appeal from a non-final order as a petition seeking a
writ of mandamus, see Caribbean Trading & Fid. Corp. v. Nigerian Nat’l Petroleum Corp., 948
F.2d 111, 115 (2d Cir. 1991) (“We have often deemed it appropriate to treat an appeal dismissed
for lack of jurisdiction as a petition for a writ of mandamus.”), the Scheidelmans have not
demonstrated that the lower court’s refusal to recuse was a clear and indisputable abuse of
discretion, see In re Basciano, 542 F.3d 950, 955-56 (2d Cir. 2008). They are therefore not
entitled to the issuance of the writ.
Accordingly, the appeal is DISMISSED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
SAO-RH 3