Big Time Holdings, LLC et al v. Musso
Filing
25
ORDER denying 24 Motion for Recusal. For the reasons discussed in the attached Memorandum and Order, the Court denies Appellant's motion for recusal. Ordered by Judge Margo K. Brodie on 4/15/2019. (Morel, Christopher)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------BIG TIME HOLDINGS, LLC,
Appellant,
MEMORANDUM & ORDER
18-CV-3535 (MKB)
v.
ROBERT J. MUSSO,
Appellee.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Appellant Big Time Holdings, LLC, filed this appeal on June 18, 2018, arising from a
bankruptcy proceeding in the United States Bankruptcy Court for the Eastern District of New
York (the “Bankruptcy Court”), under Chapter 7 of the United States Bankruptcy Code, 11
U.S.C. § 101 et seq. (Notice of Appeal, Docket Entry No. 1.) On March 4, 2019, Appellant filed
a letter requesting leave to file a motion for the Court’s recusal “due to the discriminatory and
adverse treatment the Appellant[] [has] been receiving from the Court.” (Appellant Ltr. dated
Mar. 4, 2019, Docket Entry No. 19.) On March 13, 2019, the Court entered an order responding
to several of Appellant’s letters to the Court regarding the manner in which the Court has
presided over this bankruptcy appeal. (Order dated Mar. 13, 2019.) In the Order, the Court
detailed the procedural history of this action and denied Appellant’s application for the Court’s
recusal. (Id.)
On March 21, 2019, Appellant filed a second motion for recusal. (Appellant Mot. for
Recusal (“Appellant Mot.”), Docket Entry No. 24.) For the reasons explained below, the Court
denies Appellant’s motion.
I.
Background
After filing its notice of appeal on June 18, 2018, Appellant filed its brief on April 10,
2018, (Appellant Br., Docket Entry No. 3), and Appellee filed his brief on September 7, 2018,
(Appellee, Docket Entry No. 5).
On September 12, 2019, Flushing Bank filed a motion for leave to file an amicus brief
and a letter requesting that the Court approve its proposed briefing schedule. (Flushing Bank
Mot. for Leave to File Amicus Br., Docket Entry No. 6; Flushing Bank Ltr. dated Sept. 12, 2019,
Docket Entry No. 7.) By Order dated September 13, 2018, the Court adopted Flushing Bank’s
proposed briefing schedule and ordered that Appellant serve an opposition to Flushing Bank’s
motion on or before September 26, 2018. (Order dated Sept. 13, 2018.)
On September 14, 2018, Appellant filed a reply brief, (Appellant Reply Br., Docket Entry
No. 9), and Appellant’s counsel filed a letter informing the Court that he “expect[ed] to be out of
work for [twenty] weeks” after undergoing knee surgery and would not be able to engage in the
practice of law during that time, (Appellant Ltr. dated Sept. 14, 2018, Docket Entry No. 8).
Counsel also requested that the Court deny Flushing Bank’s motion as untimely.1 (Id.)
On September 22, 2018, counsel for Appellant filed a letter again informing the Court of
his bilateral knee replacement and stated that he would be “out on disability indefinitely as of
September 24, 2018.” (Appellant Ltr. dated Sept. 22, 2018, Docket Entry No. 10.)
By Order dated September 24, 2018, the Court informed Appellant’s counsel that the
Court could not delay briefing “indefinitely” or for several months, as Appellant’s request
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That same day, Appellant’s counsel called Chambers and behaved in an unprofessional
manner. By Order dated September 14, 2018, the Court ordered Appellant’s counsel not to call
Chambers unless he behaved in a professional manner and, in the same Order, denied
Appellant’s request that the Court deny Flushing Bank’s motion as untimely. (Order dated Sept.
14, 2018.)
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seemed to suggest, and advised Appellant to seek alternative arrangements, if necessary, for
responding to Flushing Bank’s motion. (Order dated Sept. 24, 2018.) Having received no
response from Appellant, the Court granted Flushing Bank’s motion to file an amicus brief on
October 19, 2018. (Order dated Oct. 19, 2018.)
On January 30, 2019, Appellee filed a letter requesting a pre-motion conference in
anticipation of its motion to dismiss. (Appellee Ltr. dated Jan. 30, 2019.) On January 31, 2019,
the Court denied Appellee’s request for a conference and ordered Appellee to propose a briefing
schedule for the anticipated motion to dismiss. (Order dated Jan. 31, 2019.) That same day,
Appellant filed a letter opposing Appellee’s letter requesting a pre-motion conference.
(Appellant Ltr. dated Jan. 31, 2019, Docket Entry No. 12.)
On February 6, 2019, Appellee filed a proposed briefing schedule, (Appellee Ltr. dated
Feb. 6, 2019, Docket Entry No. 13), and on February 7, 2019, Appellant filed a letter opposing
Appellee’s application to file a motion to dismiss, (Appellant Ltr. dated Feb. 7, 2019, Docket
Entry No. 14).
By Order dated February 11, 2019, the Court adopted Appellee’s proposed briefing
schedule for his anticipated motion to dismiss. (Order dated Feb. 11, 2019.) Appellant
subsequently filed numerous letters requesting conferences with the court, a stay of appeal, and
the Court’s recusal from the action. (Appellant Ltrs. dated Mar. 4, 2019, Mar. 5, 2019, and Mar.
12, 2019, Docket Entry Nos. 19, 21, 23.) By Order dated March 13, 2019, the Court denied
Appellant’s request to stay the action, extended Appellant’s time to respond to Appellee’s
motion to dismiss, and denied Appellant’s application for recusal. (Order dated Mar. 13, 2019.)
Appellant filed a second motion for recusal on March 31, 2019. (Appellant Mot. for
Recusal.)
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II. Discussion
a.
Standard of review
Section 455(a) of title 28 of the United States Code provides that “[a]ny justice, judge, or
magistrate judge . . . shall disqualify himself in any proceeding in which his impartiality might
reasonably be questioned.” Liteky v. United States, 510 U.S. 540, 546 (1994). This provision “is
triggered by an attitude or state of mind so resistant to fair and dispassionate inquiry as to cause a
party, the public, or a reviewing court to have reasonable grounds to question the neutral and
objective character of a judge’s rulings or findings.” Id. at 557–58. “[A] judge should be
disqualified only if it appears that he or she harbors an aversion, hostility or disposition of a kind
that a fair-minded person could not set aside when judging the dispute.” Id.; see also El Omari
v. Kreab (USA) Inc., 735 F. App’x 30, 31 (2d Cir. 2018) (noting that in considering whether to
recuse itself from a case, a court must consider whether “‘an objective, disinterested observer
fully informed of the underlying facts[] [would] entertain significant doubt that justice would be
done absent recusal’” (quoting United States v. Bayless, 201 F.3d 116, 126 (2d Cir. 2000))); ISC
Holding AG v. Nobel Biocare Fin. AG, 688 F.3d 98, 107–08 (2d Cir. 2012) (same).
Disagreement with a court’s decision, in and of itself, is not a sufficient basis to grant
a recusal motion. LoCascio v. United States, 473 F.3d 493, 495–96 (2d Cir. 2007) (“[J]udicial
rulings alone almost never constitute a valid basis for a bias or partiality motion.”); S.E.C. v.
Razmilovic, No. 04-CV-2276, 2010 WL 2540762, at *4 (E.D.N.Y. June 14, 2010) (“Generally,
claims of judicial bias must be based on extrajudicial matters, and adverse rulings, without more,
will rarely suffice to provide a reasonable basis for questioning a judge’s impartiality.” (citation
omitted)); LoCascio v. United States, 372 F. Supp. 2d 304, 314–15 (E.D.N.Y. 2005) (“Although
phrased differently in the countless cases in which the principle is announced, simply stated it is
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that judicial rulings alone almost never constitute a valid basis for a bias or partiality motion and
that the alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and
result in an opinion on the merits on some basis other than what the judge learned from his
participation in the case.”), aff’d, LoCascio, 473 F.3d at 493. “[A] high threshold is required” to
satisfy the standard for recusal. Liteky, 510 U.S. at 557–58. “Recusal motions are committed to
the sound discretion of the district court.” LoCascio, 473 F.3d at 495.
b.
Appellant fails to show a basis for the Court’s recusal
Appellant challenges the Court’s rulings on the various applications filed in this case. In
addition, Appellant points to the Court’s March 13, 2019 Order and states that the order contains
“what can only be described as lies – three (3) lies to be specific.” (Appellant Mot. 2.) First, by
referencing a September 24, 2018 Order because “there is no September 24, 2018 Order.” (Id. at
2 (emphasis omitted).) In support of his claim, Appellant attaches screenshots of his emails to
show that the Court did not enter an order on September 24, 2018. (List of Emails annexed to
Appellant Mot. as Ex. A, Docket Entry No. 24-1.) Second, that the Court has responded to
Appellant’s requests for extensions of time and letters informing the Court of Appellant
counsel’s knee surgery because the “statement is a complete and unadulterated lie from
beginning to end.” (Appellant Mot. 3.) Lastly, that the Court considered and rejected Appellant
counsel’s arguments in opposition to Appellee’s request to file a motion to dismiss because the
“statement is again a complete unadulterated lie from beginning to end.” (Id. at 4.)
i.
The Court’s September 24, 2018 Order
Contrary to Appellant’s belief, the docket contains an Order issued by the Court on
September 24, 2018 which states:
ORDER re 10 Letter Disability Letter Submission. The Court is
willing to grant Appellant an extension to respond to Flushing
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Bank’s motion for leave to file an amicus brief. However, the Court
cannot delay briefing “indefinitely” or for several months, as
Appellant’s request seems to suggest. If necessary, Appellant must
make alternative arrangements for responding and must specify how
much time Appellant needs to do so. Ordered by Judge Margo K.
Brodie on 9/24/2018. (Morel, Christopher) (Entered: 09/24/2018)
(Order dated Sept. 24, 2018). Appellant is advised to review the docket in this matter prior to
accusing this Court of engaging in “complete fabrication.” (Appellant Mot. 3.) The Court will
assume that Appellant simply has not had the opportunity to carefully review the docket and will
ignore his failure to do so on this occasion.2
ii.
The Court’s rulings on Appellant’s requests
Appellant also contends that the Court “lied” in its September 24, 2018 letter by stating
that it (1) has responded to counsel’s requests for extensions, and (2) had considered and rejected
counsel’s arguments in opposition to Appellee’s request for leave to file a motion to dismiss.
(Appellant Mot. 2.) Appellant argues that the Court’s statements are “complete and
unadulterated lie[s] from beginning to end” because counsel for Appellant has written “nine
letters” to the Court and has not received “one response from the Court, not one.” (Id. at 3.)
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Appellant also challenges the Court’s September 24, 2018 Order advising Appellant
that the Court cannot delay briefing indefinitely by arguing that he never requested that briefing
be delayed indefinitely. Counsel for Appellant argues that neither he nor his doctors suggested
that briefing in the action should be delayed indefinitely. (Appellant Mot. 3.) However, as
stated in the Court’s September 24, 2018 Order, counsel for Appellant’s letter and the letters
from his doctors advised the Court that Appellant’s counsel would be “out on disability
indefinitely as of September 24, 2018,” (Appellant Ltr. dated Sept. 22, 2018), would be
“temporarily disabled pending total knee replacement,” (Ltr. from Dr. John J. Santucci, annexed
to Appellant Ltr. dated Sept. 22, 2018 as Ex. B, Docket Entry No. 10-2), and “out of work until
further notice,” (Ltr. from Dr. Bruce A. Seideman dated September 20, 2018, annexed to
Appellant Ltr. dated Sept. 22, 2018 as Ex. C, Docket Entry No. 10-3). Indeed, counsel’s letter
asked the Court to reconsider its briefing schedule “in light of [his] medical problems” because
he was “unable to participate in opposing” Flushing Bank’s application for leave to file an
amicus brief. (Appellant’s Ltr. dated Sept. 22, 2018.) In light of Appellant counsel’s letter and
the letters from his doctors, the Court entered the September 24, 2018 Order informing Appellant
that the Court could not delay briefing indefinitely and advised counsel to make alternative
arrangements for responding, if necessary.
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As stated in the Court’s March 13, 2019 Order, the Court considered and rejected
Appellant counsel’s arguments in opposition to Appellee’s request to file a motion to dismiss.
The Court is not in the letter-writing business; the Court responds to requests by issuing orders.
Nor is the Court required to issue a response to each of Appellant’s filings. The Court
considered Appellant’s filings and rendered its rulings. Appellant’s disagreement with the
Court’s decision to allow Appellee to file a motion to dismiss is not grounds for recusal. See
Razmilovic, 2010 WL 2540762, at *4–5 (holding that the court would not recuse itself when
party moved for motion of recusal after judge made “unfavorable rulings against [party] which
ultimately led to the entry of a default judgment against him on the issue of his liability for
violations of securities laws”).
Appellant has not made any allegations that are supported by facts to suggest that an
objective, disinterested observer would question the Court’s impartiality because of its decision
allowing Appellee to file a motion to dismiss. See Harrison v. Cty. of Nassau, No. 15-CV-2712,
2018 WL 4583491, at *1–2 (E.D.N.Y. Sept. 24, 2018) (denying the plaintiff’s motion for recusal
because the court’s rulings did not “exhibit any favoritism or antagonism towards either side”
and “to the extent plaintiff alleges any other improper conduct, those allegations are completely
unsubstantiated and baseless”); see also El Omari, 735 F. App’x at 31 (finding that the district
court did not abuse its discretion in denying a motion for recusal where the court’s law clerk
engaged in a “brief ex parte conversation” with “counsel regarding the proper procedure for how
to request a document be sealed”); Carlton, 534 F.3d at 100 (affirming lower court’s decision to
deny motion for recusal because even comments by judges that are “critical or disapproving of,
or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality
challenge” (internal quotation marks and citations omitted)). The Court therefore denies
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Appellant’s recusal motion.
The Court warns Appellant that before he accuses this Court of “lying” about its orders,
he would be better served reviewing the docket, and responding to the pending motion. The
Court will impose sanctions for any further unsupported allegations against this Court.
III. Conclusion
For the foregoing reasons, the Court denies Appellant’s motion for recusal.
Dated: April 15, 2019
Brooklyn, New York
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
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