JIM SLEMONS HAWAII, INC. V. CONTINENTAL INVESTMENT COMPANY, LTD; et al., No. 13-60033 (9th Cir. 2014)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS AUG 25 2014 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT In re: JIM SLEMONS HAWAII, INC., No. 13-60033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., Debtor, No. 13-60034 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., Debtor, No. 13-60035 BAP No. 11-1475 JIM SLEMONS HAWAII, INC., Appellant, v. CONTINENTAL INVESTMENT COMPANY, LTD, Appellee. In re: JIM SLEMONS HAWAII, INC., Debtor, CONTINENTAL INVESTMENT COMPANY, LTD, Appellant, v. JIM SLEMONS HAWAII, INC., No. 13-60040 BAP No. 11-1464 Page 3 of 6 Appellee, UST - UNITED STATES TRUSTEE, HONOLULU; et al., Interested Parties. In re: JIM SLEMONS HAWAII, INC., Debtor, No. 13-60041 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., Debtor, CONTINENTAL INVESTMENT No. 13-60042 BAP No. 11-1475 Page 4 of 6 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 21, 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 recusal, rather than merely providing grounds for appeal. Liteky v. United States, ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Page 5 of 6 510 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 explain how this case falls within a prudential exception to our general rule. Page 6 of 6 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.
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