IN THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN
In Re: ) ) JEFFREY J. PROSSER, ) ) Bankr. No. 3:06-bk-30009 Debtor ) ____________________________________________________ ) Adv. Pro. 3:21-ap-03001 OAKLAND BENTA, JEFFREY J. PROSSER, ) AND DAWN E. PROSSER, ) Civil No. 3:22-cv-0071 ) Plaintiffs/Appellants, ) ) v. ) ) CHRISTIE’S INC., CHARLES ANTIN, FOX ) ROTHSCHILD LLP, YANN GERON, WILLIAM ) STASSEN, DAVID M. NISSMAN, JAMES P. ) CARROLL, ) ) Defendants/Appellees ) ) )
ORDER BEFORE THE COURT See is Plaintiffs’/Appellants’ Motion for Recusal (Mot.) (ECF No. 20), filed September 14, 2023. Defendants/Appellees filed a response to the motion. ECF No. 26. The time for filing any reply has expired. This matter is ripe for adjudication. For the reasons stated below, the Court will deny the motion. Plaintiffs/Appellants seek the undersigned’s recusal in this matter pursuant to 28 U.S.C. § 455. Mot. at 1-2. They base their request upon the fact that Attorney Jeffrey Moorhead, a relative of the undersigned, represented Plaintiffs in a matter wherein claims Id similar to those contained in the adversary proceeding that underlies this appeal were asserted. . at 2, 4, 6 (“The Motion [sic] rests upon Attorney Jeffrey B.C. Moorhead’s (USVI 438) (‘Attorney Moorhead’s’) relationship with Judge Molloy and his involvement in this controversy.”). Plaintiffs/Appellants bring the motion even after explicitly stating that they Case No. 3:22-cv-0071 Order Page 2 of 5
do not, and are not, asserting that Judge Molloy is or has been engaged in any impropriety in the assignment of this appeal under 28 U.S.C. § 137 nor do Appellants allege that Judge Molloy had actual knowledge of the information disclosed in this Motion. In fact, the issue that gave rise to this Motion occurred long before Judge Molloy was nominated and assumed his position Id of District Court Judge. . at 2. The provision mandating that a judge disqualify himself because of the involvement of a close relative in a matter over which he is presiding is found at 28 USCS § 455(b)(5). Specifically, a judge must disqualify himself when: “He or his spouse, or a person within the Id third degree of relationship to either of them, or the spouse of such a person: . . . (ii) Is acting as a lawyer in the proceeding; . . .” . at § 455(b)(5)(ii). In the matter at bar, Plaintiffs/Appellants acknowledge that Attorney Moorhead’s involvement as counsel for Plaintiffs “occurred long before Judge Molloy was nominated and see Benta v. Christie’s, Inc. assumed his position of District Court Judge.” Mot. at 2. Although Attorney Moorhead was the attorney who, on behalf of Plaintiffs, on July 29, 2013, ( , 1:13- cv-00080 (D.V.I.), ECF No. 1) filed the very first complaint alleging the claims being litigated See in the adversary proceeding underlying the appeal currently before this Court, Plaintiffs later filed a notice with the Court that they had terminated his representation in that case. 1:13-cv-00080 (D.V.I.), ECF No. 39, filed October 23, 2015. Thus, Attorney Moorhead ceased acting as counsel for Plaintiffs long before the undersigned was appointed to his current Benta v. Christie’s, Inc. position on the bench and assigned as the presiding judge in the above-captioned matter. See Moreover, that case, , 1:13-cv-00080 (D.V.I.), was terminated by order entered by District Judge Wilma A. Lewis on June 21, 2021, dismissing the matter. Order (1:13-cv-00080 (D.V.I.), ECF No. 83), entered June 21, 2021. The proceeding currently before the Court is an appeal from an adversary proceeding filed in Plaintiff Jeffrey Prosser’s 1 bankruptcy case. This proceeding is not the same proceeding as the case in which Attorney Moorhead participated. The proceedings in which Attorney Moorhead appeared are
1 Section 455 provides: “For the purposes of this section the following words or phrases shall have the meaning Case No. 3:22-cv-0071 Order Page 3 of 5
separate and distinct from the matter currently at bar. This Court has explained what constitutes a “proceeding” for purposes of Section 455 as follows: The Third Circuit has construed section 455's use of "proceeding" as "embracing only such activity foSlcloiawrirnag, the initiation of an action by a private party or governmental agency designed ultimately to modify or affect tsheee saulsbos Stacniatrivrae ,rights of a litigant." 851 F.2d at 635. It is axiomatic that an action commences with the filing of a complaint. Fed. R. Civ. P. 3; 851 F.2d at 635. Because the complaint in the derivative action was not filed until September 30, 2004, and Ogletree Deakins parted ways with RTFC before such commencement, Attorney Francis cou.ld not possibly have acted as a lawyer in the derivative proceeding. Accordingly, recusal in the Rural Tel. Fin. Coop. v. Prosser derivative action is not required under section 455 (b) (5) (ii) , Civil No. 2004-132, Civil No. 2004-154, Civil No. 2004-155, Rural Tel. Fin. Coop 2005 U.S. Dist. LEXIS 28617, at *18-19 (D.V.I. Nov. 16, 2005). The scenario presented to the see Court in . is analogous to the one here: because the complaint in the underlying adversary proceeding was not filed until July 20, 2021, 3:21-ap-3001 (Bankr. D.V.I.), ECF No. 1, and Attorney Moorhead “parted ways” with Plaintiffs before such commencement, Attorney Moorhead could not have “acted as a lawyer” in the adversary proceeding. Moreover, Plaintiffs/Appellants do not assert that Attorney Moorhead had any Rural Tel. Fin. Coop. involvement in either the adversary proceeding or the appeal currently before the Court. Consequently, the Court reaches the same conclusion as in : recusal in 2 this proceeding is not required under Section 455(b)(5)(ii). Benta v. Christie’s, Inc. Even if Plaintiffs/Appellants are somehow able to show that Attorney Moorhead’s representation of them in , Case No. 1:13-cv-00080 (D.V.I.), can be construed as participation in this proceeding, the Court finds that Plaintiffs/Appellants have implicitly waived any grounds for recusal. It is true that recusal under Section 455(b) is not waivable. 28 U.S.C. § 455(e). Nevertheless, it is also true that “[w]aiver, prohibited by section 455(e) is not the same as
2 In the absence of any facts or explanation of applicability of Section 455(b)(5)(iii), the Court finds that Plaintiffs’/Appellants’ statement: “Since Judge Molloy does not have lifetime tenure, Judge Molloy has a personal interest, certainly in appearance, in the outcome of this proceeding within the meaning of 28 U.S.C. § 455(b)(5)(iii),” Mot. at 5, d oes not merit consideration. Likewise, Plaintiffs’/Appellants’ purely speculative Case No. 3:22-cv-0071 Order Page 4 of 5 In re Owens Corning
untimeliness.” , 305 B.R. 175, 217 (D. Del. K20o0lo4n) .I nTdhues U., nIiintec d. v S. tE a. tI. e D s u Cp oo un rt t De Nemours & Co of Appeals for the Fourth Circuit articulates the difference in th ., 748 F.3d 160 (4 Cir. 2014): [T]he non-waivability of a § 455(b) recusal does not excuse a party's delay in filing. As the Fifth Circuit explained, ‘waiver and timeliness are distinct issues.’ . . .
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IN THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN
In Re: ) ) JEFFREY J. PROSSER, ) ) Bankr. No. 3:06-bk-30009 Debtor ) ____________________________________________________ ) Adv. Pro. 3:21-ap-03001 OAKLAND BENTA, JEFFREY J. PROSSER, ) AND DAWN E. PROSSER, ) Civil No. 3:22-cv-0071 ) Plaintiffs/Appellants, ) ) v. ) ) CHRISTIE’S INC., CHARLES ANTIN, FOX ) ROTHSCHILD LLP, YANN GERON, WILLIAM ) STASSEN, DAVID M. NISSMAN, JAMES P. ) CARROLL, ) ) Defendants/Appellees ) ) )
ORDER BEFORE THE COURT See is Plaintiffs’/Appellants’ Motion for Recusal (Mot.) (ECF No. 20), filed September 14, 2023. Defendants/Appellees filed a response to the motion. ECF No. 26. The time for filing any reply has expired. This matter is ripe for adjudication. For the reasons stated below, the Court will deny the motion. Plaintiffs/Appellants seek the undersigned’s recusal in this matter pursuant to 28 U.S.C. § 455. Mot. at 1-2. They base their request upon the fact that Attorney Jeffrey Moorhead, a relative of the undersigned, represented Plaintiffs in a matter wherein claims Id similar to those contained in the adversary proceeding that underlies this appeal were asserted. . at 2, 4, 6 (“The Motion [sic] rests upon Attorney Jeffrey B.C. Moorhead’s (USVI 438) (‘Attorney Moorhead’s’) relationship with Judge Molloy and his involvement in this controversy.”). Plaintiffs/Appellants bring the motion even after explicitly stating that they Case No. 3:22-cv-0071 Order Page 2 of 5
do not, and are not, asserting that Judge Molloy is or has been engaged in any impropriety in the assignment of this appeal under 28 U.S.C. § 137 nor do Appellants allege that Judge Molloy had actual knowledge of the information disclosed in this Motion. In fact, the issue that gave rise to this Motion occurred long before Judge Molloy was nominated and assumed his position Id of District Court Judge. . at 2. The provision mandating that a judge disqualify himself because of the involvement of a close relative in a matter over which he is presiding is found at 28 USCS § 455(b)(5). Specifically, a judge must disqualify himself when: “He or his spouse, or a person within the Id third degree of relationship to either of them, or the spouse of such a person: . . . (ii) Is acting as a lawyer in the proceeding; . . .” . at § 455(b)(5)(ii). In the matter at bar, Plaintiffs/Appellants acknowledge that Attorney Moorhead’s involvement as counsel for Plaintiffs “occurred long before Judge Molloy was nominated and see Benta v. Christie’s, Inc. assumed his position of District Court Judge.” Mot. at 2. Although Attorney Moorhead was the attorney who, on behalf of Plaintiffs, on July 29, 2013, ( , 1:13- cv-00080 (D.V.I.), ECF No. 1) filed the very first complaint alleging the claims being litigated See in the adversary proceeding underlying the appeal currently before this Court, Plaintiffs later filed a notice with the Court that they had terminated his representation in that case. 1:13-cv-00080 (D.V.I.), ECF No. 39, filed October 23, 2015. Thus, Attorney Moorhead ceased acting as counsel for Plaintiffs long before the undersigned was appointed to his current Benta v. Christie’s, Inc. position on the bench and assigned as the presiding judge in the above-captioned matter. See Moreover, that case, , 1:13-cv-00080 (D.V.I.), was terminated by order entered by District Judge Wilma A. Lewis on June 21, 2021, dismissing the matter. Order (1:13-cv-00080 (D.V.I.), ECF No. 83), entered June 21, 2021. The proceeding currently before the Court is an appeal from an adversary proceeding filed in Plaintiff Jeffrey Prosser’s 1 bankruptcy case. This proceeding is not the same proceeding as the case in which Attorney Moorhead participated. The proceedings in which Attorney Moorhead appeared are
1 Section 455 provides: “For the purposes of this section the following words or phrases shall have the meaning Case No. 3:22-cv-0071 Order Page 3 of 5
separate and distinct from the matter currently at bar. This Court has explained what constitutes a “proceeding” for purposes of Section 455 as follows: The Third Circuit has construed section 455's use of "proceeding" as "embracing only such activity foSlcloiawrirnag, the initiation of an action by a private party or governmental agency designed ultimately to modify or affect tsheee saulsbos Stacniatrivrae ,rights of a litigant." 851 F.2d at 635. It is axiomatic that an action commences with the filing of a complaint. Fed. R. Civ. P. 3; 851 F.2d at 635. Because the complaint in the derivative action was not filed until September 30, 2004, and Ogletree Deakins parted ways with RTFC before such commencement, Attorney Francis cou.ld not possibly have acted as a lawyer in the derivative proceeding. Accordingly, recusal in the Rural Tel. Fin. Coop. v. Prosser derivative action is not required under section 455 (b) (5) (ii) , Civil No. 2004-132, Civil No. 2004-154, Civil No. 2004-155, Rural Tel. Fin. Coop 2005 U.S. Dist. LEXIS 28617, at *18-19 (D.V.I. Nov. 16, 2005). The scenario presented to the see Court in . is analogous to the one here: because the complaint in the underlying adversary proceeding was not filed until July 20, 2021, 3:21-ap-3001 (Bankr. D.V.I.), ECF No. 1, and Attorney Moorhead “parted ways” with Plaintiffs before such commencement, Attorney Moorhead could not have “acted as a lawyer” in the adversary proceeding. Moreover, Plaintiffs/Appellants do not assert that Attorney Moorhead had any Rural Tel. Fin. Coop. involvement in either the adversary proceeding or the appeal currently before the Court. Consequently, the Court reaches the same conclusion as in : recusal in 2 this proceeding is not required under Section 455(b)(5)(ii). Benta v. Christie’s, Inc. Even if Plaintiffs/Appellants are somehow able to show that Attorney Moorhead’s representation of them in , Case No. 1:13-cv-00080 (D.V.I.), can be construed as participation in this proceeding, the Court finds that Plaintiffs/Appellants have implicitly waived any grounds for recusal. It is true that recusal under Section 455(b) is not waivable. 28 U.S.C. § 455(e). Nevertheless, it is also true that “[w]aiver, prohibited by section 455(e) is not the same as
2 In the absence of any facts or explanation of applicability of Section 455(b)(5)(iii), the Court finds that Plaintiffs’/Appellants’ statement: “Since Judge Molloy does not have lifetime tenure, Judge Molloy has a personal interest, certainly in appearance, in the outcome of this proceeding within the meaning of 28 U.S.C. § 455(b)(5)(iii),” Mot. at 5, d oes not merit consideration. Likewise, Plaintiffs’/Appellants’ purely speculative Case No. 3:22-cv-0071 Order Page 4 of 5 In re Owens Corning
untimeliness.” , 305 B.R. 175, 217 (D. Del. K20o0lo4n) .I nTdhues U., nIiintec d. v S. tE a. tI. e D s u Cp oo un rt t De Nemours & Co of Appeals for the Fourth Circuit articulates the difference in th ., 748 F.3d 160 (4 Cir. 2014): [T]he non-waivability of a § 455(b) recusal does not excuse a party's delay in filing. As the Fifth Circuit explained, ‘waiver and timeliness are distinct issues.’ . . . Whereas ‘section 455(e) prohibits the judge and the parties from agreeing among themselves to abrogate section 455(b),’ a ‘timeliness requirement forces the parties to raise the disqualification issue at a reasonable time in the Id United States v. York litigation.’” th . at 168-69 (quoting , 888 F.2d 1050, 1055 (5 Cir. 1989)). Here, See, e.g., In re Kearney 3 Plaintiffs/Appellants filed their motion seeking recusal nearly a year after filing this appeal. The Court finds this delay untimely. , Case No. 17-12274-t11, 2023 Bankr. LEXIS 1895, at *27-28 (Bank. D.N.M. July 28, 2023) (‘"Once a movant becomes aware In re Haas of facts on which a motion to disqualify is predicated, even a relatively brief delay in filing see also S.E.C. v. Loving Spirit Foundation Inc. the motion may result in a finding of untimeliness.’ , 292 B.R. 167, 181 n. 8 (Bankr. S.D. Ohio 2003) (collecting cases); , 392 F.3d United States v. Halkbank 486, 492-93, 364 U.S. App. D.C. 116 (D.C. Cir. 2004) (motion filed eight months after the rulings complained of is untimely)”) (other citation omitted; , 15 Cr. 867 (RMB), 2020 U.S. Dist. LEXIS 153036, at *14 (S.D.N.Y. Aug. 24, 2020) ("’It is well-settled Apple that a party must raise its claim of a district court's disqualification at the earliest possible v. Jewish Hosp. & Med. Ctr. moment after obtaining knowledge of facts demonstrating the basis for such a claim.’ Raghavendra v. , 829 F.2d 326, 333 (2d Cir. 1987). ‘Recusal motions are often Trustees of Columbia Univ. denied on the basis of untimeliness when there has been only a short delay.’ , 2012 U.S. Dist. LEXIS 97922, 2012 WL 2878123, at *5 (S.D.N.Y. United States v. Burke July 13, 2012) (collecting cases). ‘Untimeliness in [the recusal] context can constitute a basis for finding an implied waiver.’ , 756 F. App'x 93, 94 (2d Cir. 2019)” (other citation omitted)).
see 3 See Case No. 3:22-cv-0071 Order Page 5 of 5
In sum, Plaintiffs/Appellants have not shown that the undersigned must disqualify himself based upon 28 U.S.C. § 455(b)(ii). The Court also finds that because the motion for recusal is untimely, Plaintiffs/AppOeRllDanEtRsE hDave waived the issue. AccordinDgElyN, IiEt Dis hereby that Plaintiffs’/Appellants’ Motion for Recusal ( ECF No. 20) is .
DATED: Robert. A. Molloy_________ ROBERT A. MOLLOY Febru ary 15 , 2024 /Csh/i ef Judge