National Business Consultants Inc. v. Lightfoot , 292 F. App'x 298 ( 2008 )

REVISED AUGUST 19, 2008
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 19, 2008
No. 06-30896
Summary Calendar Charles R. Fulbruge III
Clerk
NATIONAL BUSINESS CONSULTANTS INC; NAMER INC; AMERICA FIRST
COMMUNICATIONS INC; VOICE OF AMERICA INC; ROBERT NAMER’S
CHILDREN TRUST; ROBERT NAMER; BARBARA NAMER; HERMAN J
LOMBAS; SARAH V BROWNLEE; BERNARD BECKLER; RAYMOND L
HORRMAN; KEITH W RUSH
Plaintiffs-Appellants
v.
CLAUDE C LIGHTFOOT, JR; UNIDENTIFIED PARTIES
Defendants-Appellees
Consolidated with
No. 06-30906
ROBERT NAMER
Plaintiff-Appellant
v.
CLAUDE C LIGHTFOOT, JR
Defendant-Appellee
No. 06-30896
c/w No. 06-30906
c/w No. 06-31210
Consolidated with
No. 06-31210
CLAUDE C LIGHTFOOT, JR, in his capacity as receiver of America First
Communications Inc
Plaintiff-Appellee
v.
MISS LOU PROPERTIES LLC; SARAH BROWNLEE; HERMAN J LOMBAS
Defendants-Appellants
Appeals from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:06-CV-3191
USDC No. 2:06-CV-2511
USDC No. 2:05-CV-3776
Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
The efforts by Robert Namer and his related corporate entities to avoid
payment of a largely unpaid 1991 judgment to the Federal Trade Commission
(“FTC”) are once again before this court.1 The present appeals all arise from the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
1
See FTC v. Namer, No. 06-30528, 2007 WL 2974059 (5th Cir. Oct. 12,
2007) (unpublished); FTC v. Nat’l Bus. Consultants, Inc., 376 F.3d 317 (5th Cir.
2004); Namer v. FTC, No. 95-31312, 1996 WL 731528 (5th Cir. Nov. 27, 1996)
2
No. 06-30896
c/w No. 06-30906
c/w No. 06-31210
same underlying civil action and involve the ongoing efforts of court-appointed
receiver Claude Lightfoot (“the Receiver”) to assist the court in satisfying the
judgment. We consolidate the appeals, and AFFIRM the district court in each
of its orders described below.
The appeals in Nos. 06-30906 and 06-30896, which were filed by Namer
and/or various of his corporate and individual associates, present the same exact
issues for review. They concern (1) the district court’s finding of immunity for
the Receiver for certain acts, (2) the district court judge’s refusal to recuse
himself, and (3) the district court’s sanction barring further pleadings by Namer
or any of his associates concerning various civil actions. The appeal in No. 06-
31210 challenges the district court’s grant of summary judgment to the Receiver,
which resulted in the setting aside of a transfer of real property and related
mortgages from a co-debtor corporate affiliate of Namer’s to another entity.
Regarding Nos. 06-30906 and 06-30896, we agree with the district court
that the Receiver was immune from suit as to the actions brought by Namer
and/or his associates. See Foust v. McNeill, 310 F.3d 849, 855 (5th Cir. 2002).
The seizures at issue—a building and certain of its contents at 3313 Kingman
Street, Metairie, Louisiana, and a radio facility in Covington, Louisiana—were
made by a receiver who was court-appointed and authorized to take such action.
“Court appointed receivers act as arms of the court and are entitled to share the
appointing judge’s absolute immunity provided that the challenged actions are
taken in good faith and within the scope of the authority granted to the
receiver.” Davis v. Bayless, 70 F.3d 367, 373 (5th Cir. 1995). The Receiver was
authorized “to assume control, manage, and investigate the financial affairs [of
the co-debtors] . . . and liquidate their assets.” Although Namer and his
(unpublished); FTC v. Nat’l Bus. Consultants, Nos. 93-3033 & 93-3104, 1994 WL
57364 (5th Cir. Feb. 11, 1994) (unpublished).
3
No. 06-30896
c/w No. 06-30906
c/w No. 06-31210
associates claim that the Receiver acted outside the scope of his authority, the
judicial record, which identifies repeated efforts by the Receiver and the court
to balance payment of the grossly overdue debt with other property interests,
belies such a claim to the extent of the expressly authorized liquidations.
Even if the Receiver arguably exceeded his authority with respect to the
method and consequences of the liquidations, no leave of court was sought to sue
him, as required by law for bringing suit against court-appointed receivers in
any event. See Carter v. Rodgers, 220 F.3d 1249, 152–53 (11th Cir. 2000). There
is an exception for on-going business activities. See 28 U.S.C. § 959(a) (providing
receivers may be sued “without leave of the court appointing them, with respect
to any of their acts or transactions in carrying on business connected with such
property”). However, Namer and his affiliates concede that the Receiver “ceased
all . . . business operations” at the Metairie property and “turned off the radio
station” in Covington. Thus, because the Receiver’s actions did not involve the
“carrying on [of] business,” but only liquidation, leave of court was required even
if immunity was lost. See Muratore v. Darr, 375 F.3d 140, 143–44 (1st Cir. 2004)
(noting that the “limited exception” of Section 959(a) to obtaining leave to sue a
receiver only applies in “conducting the debtor’s business in the ordinary sense
of the words or in pursuing that business as an operating enterprise”).
Turning to the recusal and sanction issues, we held in FTC v. Namer, No.
06-30528, 2007 WL 2974059, at *3–6 (5th Cir. Oct. 12, 2007) (unpublished), that
the district court did not err by denying requests to recuse itself or hold a recusal
hearing, and we reaffirm that holding here as to alleged bias pre-dating Namer’s
suits against the Receiver for those same reasons. Moreover, as to the Receiver’s
appointment, reduction of his bond, and the alleged denial of representation for
the corporate entities, judicial rulings alone do not provide a basis for recusal.
See Liteky v. United States, 510 U.S. 540, 555 (1994). Finally, the sanction
4
No. 06-30896
c/w No. 06-30906
c/w No. 06-31210
imposed by the district court on the parties in Nos. 06-30896 and 06-30906 was
not an abuse of discretion. See Baum v. Blue Moon Ventures, LLC, 513 F.3d 181,
187 (5th Cir. 2008). As the district court observed, the cases at issue are part of
a continuous pattern of evasion and abuse of the administration of justice that
must cease. This court reaffirms its grave warning in October 2007 that future
frivolous appeals will not be tolerated. Namer, 2007 WL 2974059, at *11.
With regard to No. 06-31210, apart from the sanction issue noted, the
district court did not err in its grant of summary judgment to the Receiver as to
the transfer of real estate and mortgages from America First Communications,
Inc. (“AFC”) to Miss Lou, LLC. See Medlin v. Palmer, 874 F.2d 1085, 1089 (5th
Cir. 1989). AFC was jointly liable for a debt of more than $3 million created by
the FTC judgment, an amount far more than the total of AFC’s then-existing
assets. AFC did not receive a reasonably equivalent value in exchange for the
transfer, accepting approximately twenty-five percent of cash value and the
transfer of mortgages with subordinate collection rights. Thus, the district court
did not err in finding that the transfer was fraudulent under applicable federal
law, see 28 U.S.C. § 3304(a)(1), and ordering corresponding relief.
For the reasons stated above, we AFFIRM in all respects the judgments
of the district court in the cases underlying the three appeals at issue.
5