In re Gabrielson, Bankruptcy No. 96-07012-PHX-SSC.
| Decision Date | 29 January 1998 |
| Docket Number | Bankruptcy No. 96-07012-PHX-SSC. |
| Citation | 217 BR 819 |
| Parties | In re David L. GABRIELSON, Debtor. |
| Court | U.S. Bankruptcy Court — District of Arizona |
Russell A. Brown, Phoenix, AZ, Chapter 13 Trustee.
Richard S. Berry, Tempe, AZ.
Adrianne Kalyna, Phoenix, AZ, United States Trustee.
David L. Gabrielson, Tempe, AZ, Pro se.
On April 14, 1997, this Court issued an Order to Show Cause as to Richard S. Berry ("Berry"). The Order to Show Cause focused on technical violations of 11 U.S.C. § 110, as well as whether Berry had engaged in the unauthorized practice of law. On April 21, 1997, Berry filed a responsive pleading to the Order to Show Cause; and on April 24, 1997, Russell A. Brown, the Chapter 13 Trustee, also filed a responsive pleading. On July 2, 1997, this Court conducted a hearing on the Order to Show Cause, setting forth a procedure to resolve the controversy.1 Pursuant to the briefing schedule set forth on the record on July 2, the Trustee filed a Motion for Summary Judgment on August 15, 1997. On September 8, 1997, Berry filed a late Response along with a Cross Motion for an Extension of Time to file said Response. On September 8, 1997, the Trustee filed a Motion to Strike Berry's Response to the Motion for Summary Judgment, to which Berry filed a Response on September 30, 1997. On September 30, 1997, this Court conducted a hearing on the Trustee's Motion for Summary Judgment and Motion to Strike and Berry's Cross Motion for Extension of Time. The Court set forth its preliminary findings of fact and conclusions of law on the record.2
The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1334 and 157. This constitutes this Court's findings of fact and conclusions of law pursuant to Rule 7052 of the Rules of Bankruptcy Procedure.
Initially, the Court must rule on the Trustee's Motion to Strike the late-filed Response of Berry. Berry has filed what might be construed as a Cross Motion for an Extension of Time.
As previously noted, the Court conducted a hearing on the Order to Show Cause on July 2, 1997. At that time, the Chapter 13 Trustee stated that he would be filing the Motion for Summary Judgment as to the issues in the Order to Show Cause. Also, at that time, the Court set up an overall procedure as to how to dispose of the issues. The Court gave the Trustee a specific date by which to file the Motion for Summary Judgment and advised Berry of a specific date by which to respond. If the Trustee desired the opportunity to reply, the time frame within which he was to do so was provided as well. On July 25, 1997, the parties filed a Stipulation of Facts.3 The Trustee also timely filed his Motion for Summary Judgment. The parties, therefore, understood the briefing schedule and were proceeding accordingly.
Berry, in his Motion for an Extension of Time, went over the circumstances he believed warranted an extension to file his Response to the Motion for Summary Judgment, noting that he had been on vacation from August 20 through August 23, 1997. He stated that he had planned that particular vacation "since last year" and that he needed additional time to do the research for his responsive pleading to the Motion for Summary Judgment.
The Trustee correctly points out, in the Motion to Strike, that there are many problems with Berry's position. First, Berry was before the Court on July 2, 1997. If he had any time constraints as a result of his long-planned vacation, he should have advised the Court then. Instead, on July 2, 1997, everyone stated that they were very comfortable with the deadlines for the Motion for Summary Judgment, the response, and the reply, if any. Berry may not now use his vacation as a basis for an extension of time within which to file his response to the Trustee's Motion to Summary Judgment.
The Trustee also points out, in the Motion to Strike, that there is really nothing on file indicating that Berry did have the vacation planned for over a year. There is no affidavit from Berry or any other evidence indicating nonrefundable tickets, et cetera.
In his Response to the Motion to Strike, Berry reiterates that he needs additional time to complete his research, thereby making his request for an extension of time "genuine." Berry urges the Court to deny the Motion to Strike because no prejudice has resulted from the untimeliness of his Response to the Motion for Summary Judgment. The Court concludes that Berry has had ample time to prepare a responsive brief and has failed to show any cause for granting the Cross Motion for Extension of Time. The Court finds that the Trustee's Motion to Strike is well-taken, and shall be granted on this record.4
A review of the stipulated facts filed with this Court on July 25, 1997, reflects that certain issues initially raised in Berry's Response to the Order to Show Cause were reserved. The Court should render a decision on these issues before proceeding with the Trustee's Motion for Summary Judgment.
One of the issues raised by Berry is whether this Judge should recuse herself from hearing this matter. The standard for recusal under 28 U.S.C. §§ 144, 455 is whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned. United States v. Studley, 783 F.2d 934, 939 (9th Cir.1986) (citations omitted). There is no basis on this record for recusal. A disagreement over a judge's ruling on a matter or a concern about an order that has already been entered, such as in the In re Rivas decision on which this Court will rely as part of its analysis, is not a basis for a judge to recuse herself. Taylor v. Regents of the University of California, 993 F.2d 710, 712 (9th Cir.1993) (citations omitted). A mere disagreement over a judge's ruling is appropriately handled through the appellate process, not through recusal.5 Seidel v. Durkin (In re Goodwin) 194 B.R. 214, 224 (9th Cir. BAP 1996) (citing Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474 (1994)).
The Court also notes that Berry did not submit any affidavit in support of his basis for recusal. This failure is a separate ground on which to deny recusal. 28 U.S.C. § 144; Keating v. Office of Thrift Supervision, 45 F.3d 322, 327 (9th Cir.1995); United States v. Serrano, 607 F.2d 1145, 1150 (5th Cir.1979) (citations omitted), reh'g denied, 612 F.2d 579 (5th Cir.1980), cert. denied, 445 U.S. 965, 100 S.Ct. 1655, 64 L.Ed.2d 241 (1980), cert. denied, 446 U.S. 910, 100 S.Ct. 1838, 64 L.Ed.2d 263 (1980).
This Court has already stated that it has jurisdiction over this matter and that this is a core proceeding. The issues addressed herein are primarily concerned with 11 U.S.C. § 110. In this particular case, in the Motion for Summary Judgment, the Trustee has requested an injunction as to Berry and as to any entity that he directly or indirectly controls, and has requested that this Court enumerate what may be the unauthorized practice of law for purposes of these injunction proceedings. But, again, the request for an injunction is squarely within the parameters of § 110(j)(2)6 and this Court's jurisdiction. There is no requirement that these issues be certified to the District Court, for instance, as is required under § 110(i)(1).7
The Court also notes that as a part of this Decision, it will be relying on the In re Rivas decision, Case No. 93-03155, which is an October 11, 1996 Stipulated Order. In that Stipulated Order, Berry agreed to comply with a number of terms and conditions. That Stipulated Order is an additional predicate for this Court's jurisdiction. In other words, in that Stipulated Order, Berry promised that he would not engage in the "unauthorized practice of law," and Berry consented to this Court retaining jurisdiction over, and rendering decision as to, the issue of the unauthorized practice of law. The Stipulated Order pertained to Berry's actions in the Rivas case and as to other cases that he might handle after he executed the Stipulated Order.
As the facts will reflect, it is clear that Berry executed the Stipulated Order, that this Court approved it on October 11, 1996, and that Berry immediately thereafter violated the Stipulated Order.
Although this issue is raised in the Response to the Order to Show Cause, it appears that this is now a nonissue or moot point. Berry has had ample notice and opportunity to come to hearings, to present his position to the Court, and to file responsive pleadings with the Court. To the extent that Berry had some initial concerns about having a sufficient amount of time to present his position to the Court, the Court notes that it issued the Order to Show Cause on April 14, 1997, Berry filed his Response to the Order to Show Cause on April 21, 1997, the Court held a hearing on July 2, 1997, and this Court conducted oral argument on the Trustee's Motion for Summary Judgment on September 30, 1997. Berry had ample notice and time to present his arguments.
Berry concedes he is not licensed to practice law in the State of Arizona and is not admitted to practice in the United States District Court for the District of Arizona. Berry also concedes that he has known Mr. Gabrielson for approximately five years; and in Berry's opinion, Mr. Gabrielson apparently is not intellectually capable of drafting the legal pleadings or documents filed in this bankruptcy case. Mr. Gabrielson filed his Chapter 13 petition on July 8, 1996, and there is no dispute that Berry, People's Law â Arizona, and People's Services, Inc., were disclosed on the bankruptcy documents as the preparers.
Berry concedes that at all relevant times herein, he was engaged in the business of document preparation. Berry is an officer, director, and shareholder of...
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