McBride & Collier v. Stephen Callaway

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McBride & Collier v. Stephen Callaway

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Case: 10-30116

Document: 00511193715

Page: 1

Date Filed: 08/04/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
August 4, 2010 N o . 10-30116 S u m m a r y Calendar Lyle W. Cayce Clerk

M C B R I D E & COLLIER, P la in t iff - Appellant v. S T E P H E N CALLAWAY, D e fe n d a n t - Appellee

A p p e a l from the United States District Court for the Western District of Louisiana U S D C No. 5:09-CV-1995

B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. P E R CURIAM:* A law firm brought suit against a bankruptcy judge regarding an order he h a d entered. The order has now been rescinded. The suit is moot, and we A F F IR M the district court's dismissal on that basis. M c B r id e & Collier, a partnership in Alexandria, Louisiana, brought suit a g a in s t Bankruptcy Judge Stephen V. Callaway of the Western District of

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

*

Dockets.Justia.com

Case: 10-30116

Document: 00511193715

Page: 2

Date Filed: 08/04/2010

No. 10-30116 L o u is ia n a . Sought was a writ of prohibition and an injunction against a

s t a n d in g order he had entered regarding the payment of fees. T h e offending order was dated November 30, 2009. That order was

r e s c in d e d and replaced by an order entered by all three bankruptcy judges of the W e s t e r n District on March 5, 2010. This suit was dismissed as moot four days la t e r . This appeal was then taken. According to the briefing, the plaintiffs have b r o u g h t a separate suit challenging the new order. Arguments are made on appeal regarding why the appeal is not moot. These include that the rescinding of the order was simply a voluntary cessation, o r the issue was capable of repetition and might evade review. There is no merit t o either argument. We have no concern, as required under voluntary cessation analysis, that t h e defendant has undertaken a subterfuge by halting potentially improper c o n d u c t and awaiting dismissal of the action to resume. See Gates v. Cook, 376 F .3 d 323, 337 (5th Cir. 2004). The bankruptcy judges have not vacated the field and gone into temporary hiding, but instead have publicly substituted a new o r d e r that can be dealt with as appropriate. F u r t h e r , any legitimate claims are not evading review, as the new litigation can address the current order. A F F IR M E D .

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