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 2014-08

JIM SLEMONS HAWAII, INC. v. CONTINENTAL INVESTMENT COMPANY, LTD ( 2014 )


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  •                                                                            FILED
+CORRECTED                                  AUG 25 2014
NOT FOR PUBLICATION                          MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: JIM SLEMONS HAWAII, INC.,                 No. 13-60033
Debtor,                            BAP No. 11-1464
JIM SLEMONS HAWAII, INC.,                        MEMORANDUM*
Appellant,
v.
CONTINENTAL INVESTMENT
COMPANY, LTD; et al.,
Appellees.
In re: JIM SLEMONS HAWAII, INC.,                 No. 13-60034
Debtor,                            BAP No. 11-1468
JIM SLEMONS HAWAII, INC.,
Appellant,
v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Page 2 of 6
CONTINENTAL INVESTMENT
COMPANY, LTD; et al.,
Appellees.
In re: JIM SLEMONS HAWAII, INC.,   No. 13-60035
Debtor,                  BAP No. 11-1475
JIM SLEMONS HAWAII, INC.,
Appellant,
v.
CONTINENTAL INVESTMENT
COMPANY, LTD,
Appellee.
In re: JIM SLEMONS HAWAII, INC.,   No. 13-60040
Debtor,                  BAP No. 11-1464
CONTINENTAL INVESTMENT
COMPANY, LTD,
Appellant,
v.
Page 3 of 6
JIM SLEMONS HAWAII, INC.,
Appellee,
UST - UNITED STATES TRUSTEE,
HONOLULU; et al.,
Interested Parties.
In re: JIM SLEMONS HAWAII, INC.,   No. 13-60041
Debtor,                  BAP No. 11-1468
CONTINENTAL INVESTMENT
COMPANY, LTD,
Appellant,
v.
JIM SLEMONS HAWAII, INC.,
Appellee,
UST - UNITED STATES TRUSTEE,
HONOLULU; et al.,
Interested Parties.
In re: JIM SLEMONS HAWAII, INC.,   No. 13-60042
Debtor,                  BAP No. 11-1475
Page 4 of 6
CONTINENTAL INVESTMENT
COMPANY, LTD,
Appellant,
v.
JIM SLEMONS HAWAII, INC.,
Appellee.
Appeals from the Ninth Circuit
Bankruptcy Appellate Panel
Markell, Jury, and Taylor, Bankruptcy Judges, Presiding
+Submitted June 20, 2014**
San Francisco, California
Before: KOZINSKI, Chief Judge, and FISHER and WATFORD, Circuit Judges.
1. The bankruptcy court did not abuse its discretion by denying debtor’s
second motion to recuse Judge Faris. No reasonable person could conclude, based
on this record, that Judge Faris’s impartiality might be questioned. See In re Focus
Media,
    378 F.3d 916
    , 929–30 (9th Cir. 2004). Even assuming the November 9,
2009, order Judge Faris entered differed from his oral ruling, debtor has failed to
show why such a discrepancy would demonstrate impermissible bias requiring
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Page 5 of 6
recusal, rather than merely providing “grounds for appeal.” Liteky v. United States,
    510 U.S. 540
    , 555 (1994). The local rules at the time did not require signatures
from either the United States Trustee or debtor, and Judge Faris provided ample
time for the parties to review the proposed order. Debtor could have commented
on the proposed order prior to entry, or appealed the order before it became final.
That debtor failed to take basic, necessary steps to address what it believed to be an
erroneous order does not in any way cast doubt upon Judge Faris’s impartiality.
2. The bankruptcy court did not abuse its discretion by denying debtor’s
motion to reopen. Debtor provided no legal or factual basis for reopening the
proceeding. The “facts” that debtor relied on were unrelated to the merits of the
second recusal motion, and the vague assertion of “new matters” did not warrant
reopening the matter.
3. We decline to exercise jurisdiction over Continental’s cross-appeal of the
recusal order. “Ordinarily, only a party aggrieved by a judgment or order of a
[lower] court may exercise the statutory right to appeal therefrom.” Deposit Guar.
Nat’l Bank v. Roper,
    445 U.S. 326
    , 333 (1980). Subject to certain prudential
exceptions, a party which has prevailed before the lower court is not considered
aggrieved. See Envtl. Prot. Info. Ctr., Inc. v. Pac. Lumber Co.,
    257 F.3d 1071
    ,
1075 (9th Cir. 2001). Continental prevailed below and does not even attempt to
Page 6 of 6
explain how this case falls within a prudential exception to our general rule.
Because Continental was not aggrieved by the bankruptcy court’s denial of
debtor’s second motion to recuse, it may not challenge that order’s factual findings
on appeal.
4. Each party shall bear its own costs on appeal.
AFFIRMED.