Kaempfer v. Brown (In re B & W Management, Inc.)

71 B.R. 987, 1987 Bankr. LEXIS 478
CourtDistrict Court, District of Columbia
DecidedApril 9, 1987
DocketBankruptcy Nos. 81-00698, 81-00700 and 81-00701; Adv. No. 86-0098
StatusPublished

This text of 71 B.R. 987 (Kaempfer v. Brown (In re B & W Management, Inc.)) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kaempfer v. Brown (In re B & W Management, Inc.), 71 B.R. 987, 1987 Bankr. LEXIS 478 (D.D.C. 1987).

Opinion

MEMORANDUM OPINION

MARTIN V.B. BOSTETTER, Jr., Chief Judge, sitting by designation.

The debtors before this Court, B & W Management, Inc., Philip Joseph Brown, and William John Brown, filed on October 20, 1986 a motion requesting this Court to recuse itself from further participation in all matters relating to the debtors. Scheduled for hearing on October 20 was the motion of the trustee, John W. Guiñee, Jr., to return to the debtors possession and control of their property, and the petition of 1250 24th Street Associates Limited Partnership (“Associates”) and J.W. Ka-empfer, Jr. (“Kaempfer”) for an award of attorneys’ fees payable as an administrative expense of the debtors’ estates. Also pending before the Court and scheduled for a pretrial conference on November 18,1986 was the complaint of Kaempfer, the Ka-[989]*989empfer Company, Associates, 1250 24th Street Associates Land Partnership and the Estate of Loretto Brown, which named as defendants each of the debtors and the trustee and requested declaratory judgment regarding matters surrounding the purchase by Associates of an interest in real property held by the Estate of Loretto Brown. The debtors asserted in their answer to the complaint a counterclaim in which they alleged causes of action for malicious interference with contract and malicious interference with business opportunity.

Having carefully considered the motion for recusal and its supporting affidavit, and the memoranda and exhibits filed in opposition to the motion, this Court can find no cause for withdrawal from the pending matters.

The facts as alleged in the affidavit and expounded upon in the motion for recusal are these: this Court has both deposit accounts and mortgages at First Commonwealth Savings & Loan (“First Commonwealth”); John D. Hagner, a partner in the law firm of David, Hagner & Harvey, holds a seat on the Board of Directors of First Commonwealth; David, Hagner & Harvey acts as legal counsel to First Commonwealth; David, Hagner & Harvey represents American Security Bank in the matters pending in these cases. The debtors suggest that these facts necessitate a recu-sal under either section 144 or section 455 of Title 28 of the United States Code.

In order to recuse upon an affidavit of bias and prejudice under section 144 1, this Court must find that the affidavit sets forth with particularity material facts which, if true, would convince a reasonable man that a personal, as opposed to a judicial, bias exists. United States v. Haldeman, 559 F.2d 31, 134 (D.C.Cir.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977). See Brotherhood of Locomotive Firemen and Enginemen v. Bangor & Aroostook Railroad Co., 380 F.2d 570, 576 (D.C.Cir.), cert. denied, 389 U.S. 970, 88 S.Ct. 463, 19 L.Ed.2d 461 (1967); see also Parrish v. Board of Commissioners of Alabama State Bar, 524 F.2d 98, 100 (5th Cir.1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976).

Because the affidavit of William Brown makes no plain assertion of personal bias on the part of the Court, the debtors’ motion under section 144 rests solely upon the conclusions regarding bias or prejudice which may be gleaned from the fact of this Court’s financial transactions with First Commonwealth considered in conjunction with First Commonwealth’s choice of legal counsel. The debtors suggest that this Court of necessity is biased against them because it cannot help but be biased in favor of the David, Hagner & Harvey firm in view of the possibility that the firm may at some future date represent First Commonwealth in an action on this Court’s mortgages or accounts. Further, the debtors imply that this Court need placate the firm of David, Hagner & Harvey in its representation of American Security Bank lest Mr. Hagner prevail upon First Commonwealth to take action adverse to this Court’s financial interest.

In his affidavit, William Brown concludes that “he cannot obtain a fair ruling on any of the motions pending before Judge Bos-tetter or a trial in the instant adversary [990]*990action before Judge Bostetter.” The issue under section 144, however, is whether the facts set forth in the affidavit would convince a reasonable man that a bias exists. The Court cannot conclude that a reasonable mind would find a personal bias in the wholly speculative “connection” between this Court and counsel for American Security Bank.

Although there exists no published case in which any court considered a motion for disqualification bearing a factual similarity to the motion presently before this Court, the United States Court of Appeals for the Fifth Circuit affirmed a trial judge’s determination that a speculation of bias was insufficient to warrant recusal in United States v. Miranne, 688 F.2d 980 (5th Cir. 1982), cert. denied, 459 U.S. 1109, 103 S.Ct. 736, 74 L.Ed.2d 959 (1983). In Miranne, the defendants alleged in an affidavit that the judge’s son represented a trustee in bankruptcy in an action against a partnership in which the defendants held a 21 percent interest. In addition, the defendants revealed their intention to file suit against the trustee, his counsel, and others. Affirming the trial judge’s refusal to withdraw under section 144, the Fifth Circuit stated:

[T]he argument that Judge Boyle possessed a bias because his son was an attorney in a lawsuit against a partnership in which the appellants had a small interest without demonstrating what beneficial effect, if any, the conviction of the appellants would incur upon Boyle, Jr., is far too speculative to convince a reasonable man that bias existed.

688 F.2d at 985.

Here, as in Miranne, the movants make no tenable connection between the facts alleged in the affidavit of bias and the resolution of the matter before this Court. The debtors cannot point to a single present benefit to this Court which would result from a ruling in favor of American Security Bank or David, Hagner & Harvey. The “benefits” to the Court alleged by the debtors depend not only on arguably improper acts by Mr. Hagner and his firm, but on both the existence of mortgage defaults or other circumstances actionable at law, and on the continued attorney-client relationship between David, Hagner & Harvey and First Commonwealth. The inescapable conclusion is that a reasonable mind would find the speculations of the debtors to be baseless and, accordingly, the Court finds the affidavit of William Brown statutorily insufficient, and the motion for recusal under section 144 to be without merit.

The debtors cite section 455 of title 282 as an alternative statutory authority for this Court’s withdrawal.

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