Wisdom v. Gugino et al

Filing 8

MEMORANDUM DECISION AND ORDER. IT IS ORDERED that: Appellant's Motion for Leave to Appeal (Dkt. 1-8) is DENIED. Appellant's Request for a Writ of Mandamus (Dkt. 1-4) is DENIED. Appellant's Motion for Enlargement of Time 7 is MOOT. This appeal is DISMISSED. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

In re ALLEN L WISDOM,
Case No. 1:14-cv-00279-BLW
MEMORANDUM DECISION AND
ORDER

Debtor,
_________________________________
ALLEN L. WISDOM, an individual,
Plaintiff and Appellant,
v.
JEREMY J. GUGINO, an individual,
FRANCIS R. STERN, an individual,
ANTHONY M. PANTERA IV, an
individual, NEW YORK LIFE
INSURANCE COMPANY, a Mutual
Life Insurance Co., DOES I to V,
inclusive,
Defendants and Appellees.

INTRODUCTION
Pending before the Court is Appellant Allen Wisdom’s Motion for Leave to
Appeal in which he seeks review of the bankruptcy court’s decision denying an oral

MEMORANDUM DECISION AND ORDER - 1

motion to recuse. Wisdom also seeks a writ of mandamus prohibiting United States
Bankruptcy Judge Terry L. Myers from presiding over the adversary action below. For
the reasons explained below, the Court will (1) deny the motion for leave to file an
immediate appeal, (2) deny the petition for a writ of mandamus, and (3) dismiss this
appeal.
BACKGROUND
Appellant Allen Wisdom filed a chapter 7 bankruptcy case in April 2011. His
case was assigned to United States Bankruptcy Judge Jim D. Pappas. In December 2013,
Mr. Wisdom commenced an adversary proceeding against the chapter 7 trustee, Jeremy
Gugino. Judge Pappas recused himself from presiding over the adversary action, which
was then reassigned to United States Bankruptcy Judge Terry L. Myers.
Wisdom objected to the reassignment because seven years earlier, Gugino had
served as Judge Myers’ term law clerk. Judge Myers denied Wisdom’s oral motion for
recusal. See May 23, 2014 Order Denying Oral Motion to Recuse, Dkt. 1-3; see also
accompanying May 23, 2014 Memorandum Decision on Plaintiff’s Oral Motion to
Recuse, Bankr. Dkt. 59. 1 Wisdom now seeks an order allowing him to appeal the
interlocutory order denying his motion to recuse. Alternatively, he seeks a writ of

1

All references to the “Bankr. Dkt.” in this decision refer to docket in Wisdom v. Gugino (In re
Wisdom, Adversary Case No. 13-06045-TLM (Bankr. D. Idaho).

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mandamus prohibiting Judge Myers from presiding over the adversary action. See Dkt.
1-4.
ANALYSIS
A bankruptcy court’s order denying a motion to recuse is an interlocutory order –
not a final order. See 28 U.S.C. § 158(a)(3); see also, e.g., Stewart Enterprises, Inc. v.
Horton (In re Horton), 621 F.2d 968, 970 (9th Cir. 1980) (“The decision of a bankruptcy
judge not to disqualify himself, however, cannot be appealed until a direct appeal is taken
from a final decision adverse to the moving party.”). District courts have discretion in
deciding whether to entertain interlocutory orders, such as orders denying a motion to
recuse. See 28 U.S.C. § 158(a)(3).
In exercising this discretion, district courts are guided by the following standard:
“Leave to appeal should not be granted unless refusal would result in wasted litigation
and expense, the appeal involves a controlling question of law as to which there is a
substantial ground for difference of opinion, and an immediate appeal would materially
advance the ultimate termination of the litigation. In re NSB Film Corp., 167 B.R. 176,
180 (9th Cir. BAP 1994) (citation omitted).
Having considered all of these factors, the Court easily concludes that the motion
for leave to file an immediate appeal should be denied. Most compellingly, there is
nothing in the record suggesting that a recusal is warranted under the governing legal
standard. This point is explained thoroughly in Judge Myers’ written decision. See
Bankr. Dkt. 59. As a result, this Court concludes that allowing the adversary to move

MEMORANDUM DECISION AND ORDER - 3

forward with Judge Myers presiding will not result in wasted litigation and expense.
Further, Wisdom still has the right to appeal final orders; there is no question as to the
controlling law; and an immediate appeal would only serve to unnecessarily prolong this
action. The motion for leave to appeal will therefore be denied.
The Court is also unpersuaded by Wisdom’s alternative petition for a writ of
mandamus under 28 U.S.C. § 1651(a). In determining whether such a writ should issue,
the Court considers whether (1) Wisdom has no other adequate means, such as a direct
appeal, to attain the desired relief; (2) he will be damaged or prejudiced in a way not
correctable on appeal; (3) the bankruptcy court’s order is clearly erroneous as a matter of
law; (4) the bankruptcy court’s order is an oft-repeated error, or manifests a persistent
disregard of the federal rules; and (5) the bankruptcy court’s order raises new and
important problems, or an issue of law of first impression. See In re Morgan, 506 F.3d
705, 718 (9th Cir. 2007). All of these factors militate against issuing a writ of
mandamus.
Lastly, the Court will address Wisdom’s objection that the trustee did not timely
object to Wisdom’s motion to file an immediate appeal. See Plaintiff’s Objection, Dkt. 6.
This particular objection is irrelevant because even without considering the objection, the
Court would have denied Wisdom’s motion and alternative petition for a writ of
mandamus for the reasons explained above.

MEMORANDUM DECISION AND ORDER - 4

ORDER
IT IS ORDERED that:
1.

Appellant’s Motion for Leave to Appeal (Dkt. 1-8) is DENIED.

2.

Appellant’s Request for a Writ of Mandamus (Dkt. 1-4) is DENIED.

3.

Appellant’s Motion for Enlargement of Time (Dkt. 7) is MOOT.

4.

This appeal is DISMISSED.
DATED: December 10, 2014

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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