Prosser v. Hylton

Filing 39

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Appellants request for oral argument is DENIED; IT IS FURTHER ORDERED that the relief sought by Appellant on appeal is DENIED, and that the September 27, 2017 Amended Judgment and Amended Memorandum Opinion and Order of the Bankruptcy Court are AFFIRMED; and IT IS FINALLY ORDERED that a separate Judgment shall issue incorporating this Memorandum and Order. Signed by District Judge Jean C. Hamilton on 5/9/18. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
)
)
In re:
)
)
Jacqueline C. Hylton,
)
)
Debtor,
___________________________________ )
CHRISTOPHER LEE PROSSER,
)
)
)
Appellant,
)
)
v.
JACQUELINE C. HYLTON,
)
)
Appellee.
)

No. 4:17CV2773JCH

MEMORANDUM AND ORDER
Before the Court is the appeal from the decision of the United States
Bankruptcy Court, Eastern District of Missouri, filed by Appellant Christopher Lee
Prosser. ECF 1. The Matter is fully briefed and ready for disposition.
I.
BACKGROUND
Appellee Jacqueline C. Hylton filed for Chapter 7 bankruptcy in the United
States Bankruptcy Court for the Eastern District of Missouri, (the Bankruptcy
Court), Case Number 17-42383, on April 6, 2017. Appellant was listed as a

creditor in the amount of $25,000 for an investment loan in the Chapter 7
proceedings.
On June 9, 2017, Appellant, who was pro se and a prisoner incarcerated in
the State prison system, filed an adversary pleading in Appellee’s Chapter 7
proceedings in which he sought to have his debt declared non-dischargeable on the
basis of fraud under 11 U.S.C. § 523(a)(2), (4) and (6).1 (Bankruptcy Court
Adversary Proceeding, 17-4089 (BR) ECF 1). The Bankruptcy Court’s June 12,
2017 Scheduling Order set Appellant’s adversary proceeding for trial on
September 19, 2017, at 11:00 a.m. (BR ECF 3). As relevant, the Scheduling
Order also stated that motions for summary judgment should be filed no later than
August 22, 2017, and set forth the pre-trial compliance requirements, including
that witness and exhibit lists be submitted no later than five days prior to trial. (BR
ECF 3 at 1-2).
On June 23, 2017, Appellant filed a Motion to Stay or Set Aside the
Scheduling Order of June 12, 2017, in which Motion he asserted that the
Scheduling Order was “inadequate” regarding the amount of time to “conduct
discovery, take depositions, submit document requests, interrogatories and

11 U.S.C. § 523(a)(2), (4), and (6) provide exceptions for discharge of a debt in
bankruptcy for, among other reasons, use of materially false representations and
fraud, “defalcation while acting in a fiduciary capacity, embezzlement, or larceny,”
and “willful and wanton injury,”
1

2

admission requests, as well as to file a summary judgment motion.” (BR ECF 8 at
1-2). On July 21, 2017, Appellant filed subpoenas for production of documents
from third parties, including St. John’s Bank. (BR ECF 31-38). On July 24, 2017,
Appellee filed a Motion to Quash the St. John’s Bank subpoena (BR ECF 39) and,
on July 25, 2017, filed Objections to Appellant’s First Set of Interrogatories and
First Request for Production of Documents and a Motion to Quash Appellee’s
Second and Third Set of Interrogatories and Request for Admissions. (BR ECF
40-43). On August 8, 2017, the Bankruptcy Court set a hearing on Appellant’s
Motions to Quash and related matters for August 24, 2017. (BR ECF 83). On
August 9, 2017, Appellant again filed a Motion to Stay the Adversary Proceedings
in which he sought to stay the matter pending an interlocutory appeal regarding his
“motions with the District Court to withdraw its referral and to transfer the
adversary proceedings to the District Court.” (BR ECF 108 at 1). On August 11,
2017, Appellant filed a Request to Modify the Scheduling Order, in which he
asked the Bankruptcy Court to grant him an additional forty-five days to conduct
discovery, “thereafter adjusting all other matters according to the discovery
modification.” (BR ECF 87 at 11).
On August 16, 2017, Appellant filed a Motion for Writ of Habeas Corpus
Ad Testificandum, in which he sought to appear at the August 24, 2017 hearing on
the Motions to Quash. (BR ECF 94). By Order, dated August 17, 2017, the
3

Bankruptcy Court declined to certify a recommendation to the district court that a
writ of habeas corpus ad testificandum issue. (BR ECF 100). Appellant’s August
9, 2017 Motion requesting a stay was denied on August 22, 2017. (BR ECF 112).
On August 24, 2017, the Bankruptcy Court conducted a hearing regarding
Appellee’s Motions to Quash and related matters, at which Appellant was not
present, and, granted, in part, and denied, in part, the Motions. (BR ECF 115).
Also, on August 24, 2017, the Bankruptcy Court received, from Appellant, a
“Motion for an Additional Twenty (20) Days to File Written Exceptions and
Objections to the Order From the August 24, 2017 Hearing on [Appellant’s]
Motions to Quash.”2 (BR ECF 120). In an August 30, 2017 Order denying
Appellant’s Motion seeking an additional twenty days, the Bankruptcy Court
considered that, although Appellant had not appeared at the August 24, 2017
hearing, he “filed responses and other documents in connection with the matters
heard, which the Court considered.”3 The Bankruptcy Court also considered that
Appellant was seeking an extension of time for something to which he was not
entitled because “one does not object to an order,” because “exceptions are not part
of federal court practice,” and because “[o]bjections are assumed to be preserved
for purposes of appeal.” The Bankruptcy Court further considered that, at the time
2

This Motion was docketed on August 29, 2017.

Appellant had filed a Response to Appellee’s Motions to quash discovery. (BR
ECF 90).
3

4

Appellant’s Motion for an Additional Twenty Days was “written,” the August 24,
2017 hearing had not yet occurred, and no order following that hearing had been
entered, and that he was “free to request that a copy [of the transcript of the
hearing] be prepared and pay for the costs associated with such preparation.” (BR
ECF 121 at 1-2). On September 14, 2017, the Bankruptcy Court memorialized its
bench ruling regarding the Motions and Objections considered at the August 24,
2017 hearing, specifically denying Appellee’s Motion to Quash the subpoena to St.
John’s Bank, with the exception that certain personal information be redacted, and
granting, in part, and denying, in part, the other Motions and Objections before the
court. (BR ECF 123).
Appellee appeared before the Bankruptcy Court, on September 19, 2017, in
person and with counsel, for trial, and testified under oath.
Appellant did not appear in person or by counsel.

(BR ECF 132).

On September 20, 2017,

Appellant filed a “Motion to Amend the Scheduling Order to Allow an Additional
45 Days for Discovery” (BR ECF 133), and, on September 22, 2017, he filed a
“Motion For an Extension of Time to File a Motion for Summary Judgment, Trial
Brief, Exhibit List, Stipulation of Uncontroverted Fa[c]t, and Exhibits” (BR ECF
134). On September 25, 2017, the Bankruptcy Court issued a Judgment (BR ECF
136) and Memorandum Opinion and Order (BR ECF 137), dismissing Appellant’s
Complaint, with prejudice, based on Appellant’s failure to prosecute and “thereby
5

abandon[ing] his Complaint and any claims therein,” and, alternatively, based on
Appellant’s failure to meet the evidentiary burden at trial because he “offered no
evidence at trial in support of his claims.”
On September 26, 2017, Appellant filed a “Motion to Reconsider Order
Granting in Part and Denying in Part [Appellee’s] Motion to Quash the Subpoena
to St. John’s Bank.” (BR ECF 140).
On September 27, 2017, the Bankruptcy Court issued an Amended
Judgment (BR ECF 142) and Amended Memorandum Opinion and Order (BR
ECF 143), dismissing Appellant’s Complaint, with prejudice, for the same reasons
stated in its previous Judgment and Memorandum Opinion and Order.

The

Amended Memorandum Opinion and Order differed only from the original
Memorandum Opinion and Order in regard to Footnotes 3 and 4 which more
thoroughly detailed the procedural history of the case. (BR ECF 143 at 1 n.1).
Specifically, in its Amended Memorandum Opinion and Order, the Bankruptcy
Court held, in regard to Appellant’s failure to appear at the September 19, 2017
trial, that: Appellant “did not request a re-setting, even though he had been aware
of the trial date since June 2017”; he did not comply with pretrial compliance as set
forth in the June 2017 Scheduling Order; he did not request a writ of habeas corpus
ad testificandum for purposes of appearing at trial; Appellant had the burden to
seek a re-setting, of being prepared for trial, and of requesting an extension of the
6

trial date and pre-trial compliance and his pro se status did not relieve him of this
burden; and Appellant had demonstrated, in the course of the case, his “familiarity
with deadlines,” orders, and “the process for requesting extensions of time.” (BR
ECF 143 at 2-3).

Given Appellant’s failures to “comply with any pre-trial

compliance requirements,” “request or obtain a continuance of the trial date,” and
“appear at trial either through counsel or in person,” the Bankruptcy Court held
that it was proper to dismiss Appellant’s Complaint, with prejudice. As such, the
Bankruptcy Court ordered that Appellant’s Complaint be dismissed based on his
failure to prosecute and, thereby, abandoning the claims he made in the Complaint.
(BR ECF 143 at 3-4).
The Bankruptcy Court alternatively found that, because Appellant offered no
evidence at trial in support of his claims, he failed to meet his evidentiary burden
under 11 U.S. § 523(a), and that Appellee’s testimony, which was the only
evidence before the Bankruptcy Court, did not establish Appellant’s case. As such,
the Bankruptcy Court held that judgment in favor of Appellee was proper. (BR
ECF 143 at 4).
Appellant filed a Motion for New Trial, on October 5, 2017 (BR ECF 158),
which was denied, on October 6, 2017 (BR ECF 160), and an Amended Motion for
New Trial, on October 10, 2017 (BR ECF 163), which was denied that same date
(BR ECF 164).
7

On Appeal, Appellant argues that the Bankruptcy Court “abused its
discretion in dismissing the Complaint, with prejudice,” in failing to grant him a
new trial, and in refusing to recuse itself. (ECF 34 at 2-3, 9-10, 26-35). Appellant,
alternatively, asks the Court to determine the merits of the claims he made in the
Complaint in that he asks the Court to determine that Appellee’s debt is nondischargeable.

(ECF 34 at 10, 35-50).

Appellant additionally asks for Oral

Argument. (ECF 34 at 3).
II.
STANDARD OF REVIEW
“‘When a bankruptcy court's judgment is appealed to the district court, the
district court acts as an appellate court and reviews the bankruptcy court’s legal
determinations de novo and findings of fact for clear error.’” First Sec. Bank and
Trust Co. v. Vegt, 511 B.R. 567, 577 (N.D. Iowa 2014) (quoting In re Falcon
Prods., Inc., 497 F.3d 838, 841 (8th Cir. 2007) (other quotations and citations
omitted). The district court “must accept the bankruptcy court’s factual findings
unless they are clearly erroneous, and give due regard to the bankruptcy court’s
opportunity to judge the credibility of the witnesses.” In re Englander, 95 F.3d
1028, 1030 (11th Cir. 1996). The district court may not “make independent factual
findings.” Id.
“A district court reviews the bankruptcy court’s interpretation of the
bankruptcy code de novo.” First Security Bank, 511 B.R. at 577 (quoting In re
8

Zahn, 526 F.3d 1140, 1142 (8th Cir. 2008); In re Farmland Indus., Inc., 397 F.3d
647, 650 (8th Cir. 2005)). “Where issues are committed to the bankruptcy court’s
discretion, review is for abuse of discretion.” First Security Bank, 511 B.R. at 577
(citing In re Zahn, 526 F.3d at 1142). “The bankruptcy court abuses its discretion
when it fails to apply the proper legal standard or bases its order on findings of fact
that are clearly erroneous.” First Security Bank, 511 B.R. at 577 (quoting In re
Zahn, 526 F.3d at 1142) (other citation omitted). Under the clearly erroneous
standard, a court overturns a factual finding “only if it is not supported by
substantial evidence in the record, if it is based on an erroneous view of the law,”
or if the court is “left with the definite and firm conviction that an error was made.”
First Security Bank, 511 B.R. at 577 (quoting Kingman v. Dillard's, Inc., 721 F.3d
613, 616 (8th Cir. 2013) (other quotations and citations omitted).
With these principles in mind, the Court will address each of the issues
raised by Appellant.
III.
DISCUSSION
As a preliminary matter, pursuant to 28 U.S.C. § 158(a), this Court has
jurisdiction over Appellant’s appeal of the Bankruptcy Court’s final judgment in
Appellant’s adversary proceedings.

9

A.

Dismissal of Appellant’s Complaint:
Appellant first contends that Bankruptcy Court’s erred in dismissing his

Complaint based on his failure to prosecute.

In support of this contention,

Appellant argues that he was “zealously litigating his Complaint up to trial”; that
he was awaiting “critical rulings” prior to trial, including his motion to amend the
scheduling order and trial setting; that the Bankruptcy Court failed to consider “a
broad range of less drastic sanctions prior to dismissal”; that the Bankruptcy Court
was “devoid of empathy to the challenges” he faced as a person incarcerated; that
he did not deliberately fail to comply filing deadlines; and that he should have been
appointed counsel. (ECF 34 at 9; 26-35).
As set forth above, upon dismissing Appellant’s Complaint based on his
failure to prosecute, the Bankruptcy Court made the following findings of fact:
Appellant had adequate notice of the proceedings; he failed to ask for a re-setting
of the trial date after the Bankruptcy Court entered its September 14, 2017 Order;
he had previously demonstrated familiarity with the significance of court imposed
deadlines and procedures for requesting extensions; Appellant did not comply with
pre-trial compliance requirements as set forth in the Scheduling Order; and he “did
not request a writ of habeas corpus ad testificandum for purposes of his giving
testimony at the September 19, 2017 trial.” (BR. ECF 137 at 2). The Bankruptcy
Court further considered that: Appellant had the burden of requesting a re-setting
10

of the trial date; the fact that Appellant “may not have concluded his discovery
efforts prior to the trial date did not ‘automatically extend’ the trial date”; and
Appellant’s pro se status did not relieve him of his obligations. (BR ECF 137 at
3).
As for Appellant’s having notice of the proceedings and pre-trial compliance
requirements, as noted by the Bankruptcy Court, his June 23, 2017 request to set
aside the June 12, 2017 Scheduling Order evidences that Appellant was aware of
the September 19, 2017 trial date and pre-trial compliance requirements since June
2017. (BR ECF 8). Further, the record clearly demonstrates that Appellant was
well acquainted with court procedures, including the requirement that, for a
deadline to be extended, a motion must be filed and granted.
Although Appellant argues that the Bankruptcy Court should not have
dismissed his Complaint based on his failure to appear at trial because he was pro
se, Appellant was not excused from complying with court orders or substantive and
procedural law merely because he was pro se. See Farnsworth v. City of Kansas
City, Mo., 863 F.2d 33, 34 (8th Cir. 1988). Thus, Appellant’s pro se status did not
excuse his failure to comply with pre-trial compliance requirements or to appear at
trial.
As a pro se litigant, Appellant was “solely responsible for prosecuting his
claim.” Lane v. Hundley, 319 F.R.D. 478, 479 (D. Del. 2017). Notably, Appellant
11

did not request a writ of habeas corpus ad testificandum to enable his appearance at
the trial, despite his demonstrating awareness of such a possibility; he had sought a
writ of habeas corpus ad testificandum to enable his appearance at the August 24,
2017 hearing. But cf., Heidelberg v. Hammer, 577 F.2d 429, 431-32 (7th Cir. 1978)
(if the question to whether a writ of habeas corpus ad testificandum should issue
was considered by the court and decided in the negative, a dismissal could not
properly be based on the incarcerated plaintiff’s failure to appear).
Further, upon dismissing Appellant’s Complaint based on his failure to
prosecute, the Bankruptcy Court considered the merits of Appellant’s claim and
found it without merit. The Court also notes that, given Appellee’s appearance at
trial, with counsel, Appellee would have been prejudiced if the Bankruptcy Court
had not dismissed Appellant’s Complaint based on his failure to prosecute. See
Lane, 319 F.R.D at 479-80 (factors relevant to dismissal for failure to prosecute
include: “(1) the extent of the party's personal responsibility; (2) the prejudice to
the adversary caused by the failure to meet scheduling orders and respond to
discovery; (3) a history of dilatoriness; (4) whether the conduct of the party was
willful or in bad faith; (5) the effectiveness of sanctions other than dismissal,
which entails an analysis of other sanctions; and (6) the meritoriousness of the
claim or defense”; dismissal may be appropriate even though all of the factors do
not weigh against the plaintiff) (citation omitted).
12

Finally, Appellant’s being

clearly aware of the trial date and the significance of the requirements of the
Scheduling Order, as evidenced by his numerous filings, indicates that his failure
to prosecute was not accidental or involuntary. See id.; Williams v. Lombardi,
2017 WL 2167296, at *2 (E.D. Mo. May 16, 2017) (to dismiss for failure to
prosecute, the “‘district court need not find that the party acted in bad faith, but
only that [he] acted intentionally as opposed to accidentally or involuntarily.’”)
(quoting Doe v. Cassel, 403 F.3d 986, 990 (8th Cir. 2005)).
To the extent Appellant argues that the Bankruptcy Court’s dismissal of his
Complaint should be reversed based on its denial of his Motions for Appointment
of Counsel (BR ECF 14, 15, 107, 112), the Court finds that, upon denying
Appellant’s Motions for Appointment of Counsel, the Bankruptcy Court exercised
“reasoned and well-informed discretion.” Nelson v. Shuffman, 476 F.3d 635 (8th
Cir. 2007) (quoting Slaughter v. City of Maplewood, 731 F.2d 587, 589 (8th Cir.
1984)). Appellant, moreover, demonstrated, throughout the course of litigation, his
ability to represent himself as evidenced by his numerous filings, in which he
clearly articulated points he intended to raise and in which he demonstrated
familiarity with applicable procedural requirements. Further, the record does not
reflect that Appellant would have substantially benefited from the appointment of
counsel; that, prior to trial, there was a need to further investigate and present the
facts related to Appellant’s allegations; or that the factual and legal issues
13

presented by the action were complex. See Battle v. Armontrout, 902 F.2d 701,
702 (8th Cir. 1990); Johnson v. Williams, 788 F.2d 1319, 1322-23 (8th Cir. 1986);
Nelson, 728 F.2d at 1005. The Court finds, therefore, that the Bankruptcy Court’s
failure to appoint Appellant counsel is not a basis for finding that it erred in
dismissing his Complaint.
Based on the foregoing, the Court finds that the Bankruptcy Court’s findings
of fact related to its dismissal of Appellant’s Complaint for failure to prosecute are
based on substantial evidence in the record and are not clearly erroneous; that the
Bankruptcy Court applied proper legal standards when dismissing Appellant’s
Complaint for failure to prosecute and did not abuse its discretion; and that,
therefore, the Bankruptcy Court’s dismissal of Appellant’s Complaint based on his
failure to prosecute should be affirmed. See First Security Bank, 511 B.R. at 577.
B.

Denial of Motions for New Trial:
Appellant filed two Motions seeking a new trial.

In his first Motion,

Appellant argued that: he was prejudiced and denied due process because, prior to
trial, he had filed a Motion to extend the time for conducting discovery and to
amend the Scheduling Order; this Motion included “a new trial setting by virtue of
the time required”; the Bankruptcy Court had never advised him of a decision on
that Motion; and he was “under the impression” that the trial date was reset based

14

on his Motion and the fact that the “critical evidentiary rulings” had not yet been
made. (BR ECF 158 at 1) (citing BR ECF 87).
On October 6, 2017, the Bankruptcy Court denied Appellant’s first Motion
for New Trial holding that:

Federal Rule of Civil Procedure 59, which is

incorporated into bankruptcy proceedings under Federal Rule of Bankruptcy
Procedure 9023, provides for a new trial to “correct manifest errors of law or fact”
or to present “newly discovered evidence”; Appellant did not argue that there was
any newly discovered evidence; he argued only that the Bankruptcy Court “made a
manifest error of law when it conducted the trial because [he] was ‘under the
impression’ [] that the trial would be re-set, and thus did not appear at trial”;
Appellant’s impression was “incorrect” and “unreasonable,” as he had no basis “to
believe that the trial date had been re-set or [that the matter] would not be called
for trial on September 19, 2017”; and the trial date had been given in the
Scheduling Order and no amended scheduling order had issued. (BR ECF 160 at
2).
To the extent Appellant’s “impression” about the trial date was based on the
effect of his August 11, 2017 motion requesting additional time to conduct
discovery and a resetting of the trial date based on his alleged need to conduct
additional discovery, the Bankruptcy Court noted that, at the August 24, 2017
hearing, it quashed most of Appellant’s discovery requests and did not grant
15

Appellant’s request for more time to conduct additional discovery; that the trial
date was not re-set; that, on September 14, 2017, the Bankruptcy Court had entered
its order memorializing its August 24, 2017 bench ruling; that “no manifest error
occurred because the trial was conducted on the date on which it had long been
scheduled”; and that “[a] trial is re-set by an order of the court – and such an order
was never issued.” (BR ECF 160 at 2-3). The Bankruptcy Court also held that
Appellant’s complaint that he did not receive the September 14, 2017 written order
until after the trial date was “not an excuse” for Appellant’s failure to prosecute.
(BR ECF 160 at 3 n.2). As for Appellant’s stating that he had no way of knowing
what occurred at the August 24, 2017 hearing, the Bankruptcy Court noted that
Appellant could have ordered a CD of the audio recording for a nominal fee and he
could have obtained counsel to help him, but he did not do so. (BR ECF 160 at 3
n.3). As such, the Bankruptcy Court concluded that “no manifest error occurred
because the trial was conducted on the date on which it had long been scheduled”
and that Appellant’s “erroneous understanding of the trial date status [was] not a
basis for granting a new trial.” (BR ECF 160 at 3).
In response to Appellant’s argument that he was “prejudiced” by the trial’s
going forward, the Bankruptcy Court held that the consequences of Appellant’s
failing to obtain a trial date re-setting or otherwise being “ready to proceed to trial
on September 19, 2017, as scheduled,” “did not result in improper prejudice or
16

manifest error.” (BR ECF 160 at 3). The Bankruptcy Court additionally found
that Appellant’s other arguments “amount[ed] to re-hashings of previously denied
requests, meritless claims of constitutional violations, and baseless personal attacks
upon opposing counsel, [Appellee], the Judge, and the Court,” and that these
arguments did not support a finding of manifest error.

In summary, the

Bankruptcy Court held that: Appellant “had been aware of the September 19, 2017
trial setting for months”; “he did not seek a re-setting of the trial date outside the
context of his mid-August request for additional time to conduct discovery, which
was not granted”; an “amended trial scheduling order was never issued”; “yet
[Appellant] claim[ed] to have had the ‘impression’ that the trial would not go
forward as scheduled . . . and thus did not appear to prosecute the Complaint on the
day of trial”; and “[n]one of this resulted in manifest error.” The Bankruptcy Court
held, therefore, that “relief in the form of a new trial under Rule 59 [was] not
proper.” (BR ECF 160 at 4).
On October 10, 2017, after the Bankruptcy Court had denied his Motion for
New Trial, Appellant filed an Amended Motion for New Trial, citing excerpts of
his testimony in a State case he filed against the Appellee, which testimony he
argued was relevant to a determination of whether Appellee’s debt was
dischargeable. Appellant attached a CD to this Motion. (BR ECF 163). Upon
denying the Amended Motion for New Trial, the Bankruptcy Court held that a
17

motion cannot be amended after adjudication, and, to the extent the Amended
Motion for New Trial could be construed as a second motion for new trial,
“nothing in [the] Amended (or ‘Second’) Motion for New trial suggest[ed] that
there [was] a ground entitling [Appellant] to a new trial.” (BR ECF 164 at 1).
On appeal, in support of his argument that the Bankruptcy Court erred in not
granting his Motion for New Trial and Amended Motion for New Trial, Appellant
contends that Appellee committed “perjury and fraud” in sworn pretrial
submissions and during her sworn trial testimony. (ECF 34 at 9). He also makes
lengthy factual allegations allegedly relevant to his claim that debt at issue was
non-dischargeable. (ECF 34 at 9, 35-45).
As set forth above, upon denying Appellant’s Motion for New Trial and the
Amended Motion for New Trial, the Bankruptcy Court set forth a factual basis for
its doing so. The Court finds that these factual findings are not clearly erroneous
and that the Bankruptcy Court applied the proper legal standard for granting a new
trial. See First Security Bank, 511 B.R. at 577; Howard v. Missouri Bone and
Joint Center, Inc., 2009 WL 2168676, at *2 (E.D. Mo July 17, 2009) (“In
evaluating a motion for a new trial pursuant to Rule 59(a), [t]he key question is
whether a new trial should [be] granted to avoid a miscarriage of justice.”)
(internal citation omitted), aff’d, 615 F.3d 991 (8th Cir. 2017). The Court finds,
therefore, that the Bankruptcy Court did not abuse its discretion when denying
18

Appellant’s Motion for New Trial, see First Security Bank, 511 B.R. at 577;
Hallmark Cards, Inc. v. Murley, 703 F.3d 456, 462 (8th Cir. 2013) (“We review the
denial of a motion for a new trial for a ‘clear’ abuse of discretion, with the key
question being whether a new trial is necessary to prevent a miscarriage of
justice.”) (quoting Harrison v. Purdy Bros. Trucking Co., 312 F.3d 346, 351 (8th
Cir. 2002)); Howard, 2009 WL 2168676, at *2.

See also Barnes v. Alves, 304

F.R.D. 363 (W.D.N.Y 2015) (granting a motion for new trial in a non-jury case is
within the discretion of the trial court and “is reviewable only for abuse”).
To the extent the Bankruptcy Court’s dismissal of Appellant’s Complaint for
failure to prosecute was an entry of default, and to the extent Appellant, in his
Motions for New Trial, sought to have the default set aside, pursuant to Rule 55(c)
of the Federal Rules of Civil Procedure, a “court may set aside an entry of default
for good cause, and, pursuant to Rule 60(b), it may set aside a final default
judgment. Under Rule 55(c), the factors governing whether a party should be
relieved from default include “whether the conduct of the defaulting party was
blameworthy or culpable, whether the defaulting party has a meritorious defense,
and whether the other party would be prejudiced if the default were excused.”
Johnson v. Dayton Elec. Mfg. Co., 140 F.3d. 781, 784 (8th Cir. 1998) (citations
omitted). The standard for setting aside default judgement, under Rule 60(b) is
more rigorous than the standard of Rule 55(c), as Rule 60(b) requires “excusable
19

neglect.” In re Men’s Sportswear, Inc. v. Sasson Jeans, Inc., 834 F.2d 1134, 1138
(2nd Cir. 1987). “A trial court's determination in entering a default judgment is
entitled to great deference. Id. “Because the trial judge is the person most familiar
with the circumstances of the case and is in the best position to evaluate the good
faith and credibility of the parties, a reviewing court will defer to [the trial judge’s]
decision unless it is clearly wrong.”

Id. at 1138-39 (internal quotations and

citations omitted).
The record demonstrates that Appellant was not without fault for failing to
appear at trial or comply with pre-trial compliance; the facts before the Bankruptcy
Court did not support Appellant’s claim as he presented no evidence; and Appellee
would have been prejudiced had the Bankruptcy Court granted Appellant a new
trial given that she appeared in person and with counsel and presented her defense
at the September 19, 2017 trial. Even applying the less stringent standard of Rule
55(c) for setting aside the entry of default, the Court finds, therefore, that the
Bankruptcy Court’s denial of Appellant’s Motion for New Trial and Amended
Motion for New Trial is based on substantial evidence and is not clearly erroneous;
that, upon denying Appellant’s Motion for New Trial and Amended Motion for
New Trial, the Bankruptcy Court applied the proper legal standard and did not
abuse its discretion; and that, therefore, the Bankruptcy Court’s denial of
Appellee’s Motion for New Trial and Amended Motion for New Trial should be
20

affirmed. See Men’s Sportswear, 834 F.2d at 1138; First Security Bank, 511 B.R.
at 577.
C.

Bankruptcy Court’s Refusal to Recuse Itself:
Appellant filed two Motions requesting that the Bankruptcy Court recuse

itself. (BR ECF 22 (“Motion for Change of Judge”) & 97 (“Second Motion to
Change of Judge and Request for the District Court to Adjudicate the Motion”),
which the Bankruptcy Court denied (BR ECF 25 & 99). Appellant contends that
the Bankruptcy Court abused its discretion when refusing to recuse itself; that the
Bankruptcy Court’s prejudice against him “was patent on the face of the record”;
and that, “at a minimum, the appearance of impropriety by the Court grossly
affect[ed] its impartiality, warranting disqualification.” (ECF 34 at 10, 58-59).
A federal judge is required to disqualify himself or herself “in any
proceeding in which [his or her] impartiality might reasonably be questioned,”
and/or where he or she “has a personal bias or prejudice concerning a party, or
personal knowledge of disputed evidentiary facts concerning the proceeding.” 28
U.S.C. § 455(a) & (b)(1).

“[R]ecusal motions are committed to the sound

discretion of the district court.” Barnes v. Alves, 304 F.R.D. 363, 366 (W.D.N.Y.
2015) (quoting United States v. Lovaglia, 954 F.2d 811, 815 (2d Cir. 1992)). “In
cases where a judge’s impartiality might reasonably be questioned, the issue for
consideration is not whether the judge is in fact subjectively impartial, but whether
21

the objective facts suggest impartiality.” Barnes, 304 F.R.D. at 366 (citing Liteky
v. United States, 510 U.S. 540, 548 (1994) (internal quotation omitted).
“[W]hether disqualification is required in a particular case is committed” to
the judge’s sound discretion, and a judge’s determination regarding a motion for
recusal will be reviewed only for an abuse of that discretion. In re Kansas City
Pub. Emps. Ret. Sys., 85 F.3d 1353, 1358 (8th Cir. 1996 (citing Perkins v. Spivey,
911 F.2d 22, 33 (8th Cir. 1990)). This is so because:
[t]he judge presiding over a case is in the best position to appreciate
the implications of those matters alleged in a recusal motion. In
deciding whether to recuse himself, the trial judge must carefully
weigh the policy of promoting public confidence in the judiciary
against the possibility that those questioning his impartiality might be
seeking to avoid the adverse consequences of his presiding over their
case.
Id. (quoting In re Drexel Burnhan Lambert, Inc., 861 F.2d 1307, 1312 2nd Cir.
1998)).
Accordingly, the Court will presume that the Bankruptcy Court was
impartial. Appellant bears “the substantial burden of proving otherwise.” Kansas
City Public Employees, 85 F.3d at 1358 (quoting Pope v. Fed. Express Corp., 974
F.2d 982, 985 (8th Cir. 1992)).
In the matter under consideration, Appellant has not presented any evidence
to rebut the presumption of the Bankruptcy Court’s impartiality. Further, the Court
finds that Appellant has not demonstrated that “the objective facts suggest
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impartiality.” Barnes, 304 F.R.D. at 366. Appellant’s disagreement with the
Bankruptcy Court’s legal and factual conclusions, moreover, is not evidence of
bias or prejudice. See id. As such, the Court finds that the Bankruptcy Court’s
denials of Appellant’s Motions seeking its recusal are based on substantial
evidence and are not clearly erroneous; that the Bankruptcy Court applied the
proper legal standard when denying these Motions and did not abuse its discretion,
see Kansas City Public Employees, 85 F.3d at 1358; and that, therefore, the
Bankruptcy Court did not err in refusing to recuse itself, see First Security Bank,
511 B.R. at 577. As such, the Court will affirm the Bankruptcy Court’s denial of
Appellant’s Motions seeking its recusal.
D.

Bankruptcy Court’s Finding Appellee’s Debt Dischargeable:
Appellant, alternatively, asks the Court to find that the Appellee’s debt to

him is non-dischargeable. In support of this request Appellant makes lengthy
factual assertions and argues that Appellee’s counsel committed fraud on the
Bankruptcy Court, and that the Appellee “committed [] perjury and fraud on the
court in sworn pretrial submissions [and] under oath [] during her trial testimony.”
(ECF 34 at 9-10, 47-50).
After considering the testimony of Appellee, as stated above, the Bankruptcy
Court found that Appellee’s testimony was credible; that her testimony did not
support a finding that Appellant’s alleged debt was subject to exception from
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discharge under § 523(a)(2), (4) or (6); that Appellant did not meet his evidentiary
burden; and that, therefore, Appellant’s allegation that Appellee’s debt was nondischargeable was without merit. (BR ECF 137 at 2-4).
Although Appellant asks the Court to reconsider evidence before the
Bankruptcy Court, including Appellee’s trial testimony, on appeal, the Court may
not make independent findings of fact. See In re Englander, 95 F.3d at 1030.
Further, the Court finds that the Bankruptcy Court’s factual findings are based on
substantial evidence and are not clearly erroneous. See id; First Security Bank, 511
B.R. at 577.

As for Appellant’s seeking appellate review of the Bankruptcy

Court’s legal conclusions, pursuant to de novo review, the Court finds that the
Bankruptcy Court did not err and that it correctly applied the law to the facts of the
matter. See id. Appellant did not meet his burden to establish that Appellant’s
debt was non-dischargeable given that he did not present any evidence. See Econ.
Dev. Growth Enters. Corp. v. McDermott, 478 B.R. 123, 127 (N.D.N.Y. 2012
(“Pursuant to Bankruptcy Code § 523(a), 11 U.S.C. §§ 101–1532, courts narrowly
construe the limited exceptions to the discharge of a debt and resolve any genuine
doubts in favor of the debtor.

It is a creditor’s burden to establish non-

dischargeability by a preponderance of the evidence.”) (citing Grogan v. Garner,
498 U.S. 279, 291 (1991) (other citation omitted). As such, the Court finds that the
Bankruptcy Court did not abuse its discretion upon finding that Appellant’s debt
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was dischargeable and that the Bankruptcy Court’s decision, in this regard, should
be affirmed on appeal. See In re Englander, 95 F.3d at 1030; First Security Bank,
511 B.R. at 577.
E.

Oral Argument:
Based on its discretion, the Court finds that oral argument is not warranted

in this matter and that, therefore, Appellant’s request for oral argument should be
denied. See Jellon v. McDonnell Douglas Corp., 121 F.3d 423, 426 (8th Cir. 1997)
(Motions “shall be decided on the papers without oral argument unless the court in
its discretion chooses to order oral argument: ‘Motions in civil cases shall be
submitted and determined upon the memoranda without oral argument. The Court
may in its discretion order oral argument on any motion.’ E.D. Mo. L.R. 4.02(A).
And Rule 4.02 further provides with respect to oral argument on motions: ‘A party
requesting the presentation of oral argument or testimony in connection with a
motion shall file such request with its motion or memorandum briefly setting forth
the reasons which warrant the hearing of oral argument or testimony.’ E.D. Mo.
L.R. 4.02(B).”).
IV.
CONCLUSION
For the reasons set forth above, the Court finds that the issues raised by
Appellant are without merit and that Appellant’s request for oral argument should
be denied. As such, the Court will affirm the Bankruptcy Court’s September 27,
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2017 Amended Judgment and Amended Memorandum Opinion and Order. (BR
ECF 142 & 143).
Accordingly,
IT IS HEREBY ORDERED that Appellant’s request for oral argument is
DENIED;
IT IS FURTHER ORDERED that the relief sought by Appellant on appeal
is DENIED, and that the September 27, 2017 Amended Judgment and Amended
Memorandum Opinion and Order of the Bankruptcy Court are AFFIRMED; and
IT IS FINALLY ORDERED that a separate Judgment shall issue
incorporating this Memorandum and Order.
Dated this 9th Day of May 2018.
/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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