Moxey v. Pryor et al

Filing 8

MEMORANDUM AND ORDER - The Bankruptcy Court's denial of Appellant Kenneth Moxey's Recusal Motion, his Certification Request, and his Stay Motion is AFFIRMED. The Clerk of the Court is directed to mail a copy of this Memorandum and Order to the pro se Appellant and to mark these appeals CLOSED. So Ordered by Judge Joanna Seybert on 3/16/2016. C/M; C/ECF. E.D. Bankr. Case No. 8-12-74340(AST); Adv. Pro. No. 8-13-8108(AST). (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------X
KENNETH MOXEY,
Appellant,
-against–
ROBERT L. PRYOR, MPJM CRUSH HOLDINGS,
LLC, V-JAMA HOLDINGS, LLC, MAAAS
ENTERPRISES, LP, TUTHILL FINANCE LP,
and DAVID A. BETRON,

E.D. Bankr. Case
No. 8-12-74340(AST)
Adv. Pro.
No. 8-13-8108(AST)
MEMORANDUM
15-CV-1279
15-CV-1280
15-CV-1281

& ORDER
(JS)
(JS)
(JS)

Appellees.
--------------------------------------X
APPEARANCES
For Appellant:
Kenneth Moxey, pro se
923 Custer Street
Valley Stream, New York 11580
For Appellees:
Robert L. Pryor:

MPJM Crush Holdings,
LLC, V-Jama Holdings,
LLC, Maaas
Enterprises, LP:

Anthony F. Giuliano, Esq.
Justin L. Rappaport, Esq.
Pryor & Mandelup, LLP
675 Old Country Road
Westbury, New York 11590

Bruce L. Weiner, Esq.
Rosenberg Musso & Weiner LLP
26 Court Street, Suite 2211
Brooklyn, New York 11242

Tuthill Finance LP:

Bruce Minkoff, Esq.
Robinowitz Cohlan Dubow & Doherty, LLP
199 Main Street, 5th Floor
White Plains, New York 10601

David A. Betron:

Andrew Oliveras, Esq.
26 Strangford Court
Oceanside, New York 11572

1

SEYBERT, District Judge:
Kevin Moxey (“Moxey” or “Appellant”) is the debtor in
a Chapter 7 bankruptcy proceeding, Case No. 8-12-74340, and a
related adversary proceeding, Case No. 8-13-8108.

Those actions

were before Judge Alan Trust in the United States Bankruptcy
Court for the Eastern District of New York (the “Bankruptcy
Court”).

Moxey appeals from three of the Bankruptcy Court’s

Orders in those proceedings.

For the following reasons, this

Court AFFIRMS the Bankruptcy Court’s Orders.
BACKGROUND
The Court assumes familiarity with the facts of this
case, which are chronicled in the Court’s Memorandum and Order
dated August 25, 2015.
WL

5024746,

at

*1-3

See Moxey v. Pryor, No. 14-CV-6972, 2015
(E.D.N.Y.

Aug.

25,

2015).

The

salient

details are discussed below.
This case stems from Moxey’s loss of real property
located in Brooklyn, New York.

(Order Denying Appellant’s Stay

Mot., Docket Entry 1-1, at 1.)1

Since then, he has waged a

protracted legal battle in Bankruptcy Court, filing motion after
motion.

Presently,

all

of

his

claims

have

been

dismissed.

Three motions are relevant here: (1) a motion requesting the
recusal of Judge Trust (the “Recusal Motion”); (2) a request for

Unless otherwise specified, all references to docket entries
correspond to the docket for Case No. 15-CV-1281.
1

2

certification of his appeals for direct appeal to the U.S. Court
of Appeals for the Second Circuit (the “Certification Request”);
and (3) a motion to stay various orders issued by the Bankruptcy
(Order Denying Appellant’s Stay Mot.

Court (the “Stay Motion”).2
at 2-3.)

Moxey has appealed the corresponding Orders issued by

the Bankruptcy Court.3
argues

that

the

In all three appeals, Moxey primarily

Bankruptcy

Court

“abused

its

authority”

by

giving preferential treatment to Defendants, who are Caucasian,
over Moxey, who is African-American.

(Order Denying Appellant’s

Stay Mot. at 4.)
DISCUSSION
The Court will first discuss the applicable standard
of review before considering each of Moxey’s challenges.
I.

Standard of Review
A

district

court

acts

as

an

appellate

court

in

reviewing judgments rendered by the Bankruptcy Courts.

Fed. R.

Bankr.

94

P.

8013;

In

re

Cody,

Inc.,

338

F.3d

89,

(2d

The Recusal Motion can be found at Case No. 15-CV-1279, Docket
Entry 2-2, at 4-27. The Certification Request can be found at
Case No. 15-CV-1280, Docket Entry 2-2, at 112-13. The Stay
Motion can be found at Docket Entry 3-2 at 5-12.
2

The Court notes that Moxey’s Notice of Appeal documents
incorrectly refer to the Stay Motion but his briefs correctly
refer to the Recusal Motion. The Bankruptcy Court’s Order
denying the Recusal Motion can be found at Case No. 15-CV-1279,
Docket Entry 2-2, at 252-56.
3

The Bankruptcy Court’s Order denying the Certification Request
can be found at Case No. 15-CV-1280, Docket Entry 1-2.
3

Cir. 2003).

The

Bankruptcy

Court’s

findings

of

fact

are

reviewed for clear error.

In re Kalikow, 602 F.3d 82, 91 (2d

Cir.

finding

2010).

“A

factual

is

clearly

erroneous

only

if . . . the reviewing court on the entire evidence is left with
the

definite

committed.”

and

firm

Ortega

Cir. 2003)

(internal

conviction

v.

Duncan,

quotation

that
333

marks

a

F.3d
and

Conclusions of law are reviewed de novo.

mistake
102,

has

106-07

citation

been
(2d

omitted).

Kalikow, 602 F.3d

at 91.
II.

Recusal Motion
Moxey first challenges the Bankruptcy Court’s Order

denying

the

Recusal

Motion.

(Appellant’s

No. 15-CV-1279, Docket Entry 3.)

Recusal

Br.,

Case

But this Court finds no error

in the Bankruptcy Court’s ruling.
Under Federal Rule of Bankruptcy Procedure 5004, “[a]
bankruptcy

judge

disqualified

shall

from

be

governed

presiding

over

by

the

28

U.S.C.

proceeding

§
or

455,

and

contested

matter in which the disqualifying circumstances arise[] or, if
appropriate,
case.”

shall

be

disqualified

Fed. R. Bankr. P. 5004(a).

from

presiding

over

the

Particularly, a judge “shall

disqualify himself in any proceeding in which his impartiality
might reasonably be questioned.”

28 U.S.C. § 455(a).

True

enough, recusal is appropriate when “an objective, disinterested
observer

fully

informed

of

the
4

underlying

facts

[would]

entertain significant doubt that justice would be done absent
recusal.”
1998).

Diamondstone v. Macaluso, 148 F.3d 113, 121 (2d Cir.

Section 455(b) of Title 28 enumerates several examples

where recusal is appropriate, none of which are applicable.

See

28 U.S.C. § 455(b)(1)-(5).
Here, a disinterested observer could not reasonably
question Judge Trust’s impartiality.

First, Moxey alleges that

Judge Trust has a race-related bias against him.
Recusal

Mot.

¶

40

at

11

(“Judge

Trust

is

(See, e.g.,

protecting

Businessmen who exploit the Black community . . . .”).)

White

Yet the

Court finds these claims are entirely unfounded because Moxey
proceeds

solely

allegations
presented

of

any

through
racial

evidence

innuendo

animus.
that

and
Moxey,

Judge

Trust

cites

no

specific

moreover,
acted

has

with

“a

degree of favoritism or antagonism” toward any party.
Appellant’s Recusal Br. at 18.)
simply
him.

disagrees

with

the

not
high
(See

Rather, it appears that Moxey

Bankruptcy

Court’s

rulings

against

But it is well settled that a motion for recusal “may be

made only on the basis of alleged bias or prejudice from an
extrajudicial source,” not upon a court’s rulings or conduct.
See Goodwine v. Nat’l R.R. Passenger Corp., No. 12-CV-3882, 2014
WL 37850, at *2 (E.D.N.Y. Jan. 6, 2014) (internal quotation
marks and citation omitted); United States v. El-Gabrowny, 844
F.

Supp.

955,

959

(S.D.N.Y.

1994)
5

(“[B]ecause

it

is

in

the

nature of a judge’s job to rule, and any ruling must favor one
side and disfavor the other, rulings during the course of a case
generally are not regarded as evidence of bias . . . .”).

Thus,

the Bankruptcy Court’s denial of the Recusal Motion is AFFIRMED.
III. Certification Request
Next, Moxey alleges that the Bankruptcy Court erred
when

it

denied

his

Certification

Request.

(Appellant’s

Certification Br., Case No. 15-CV-1280, Docket Entry 3.)

The

Court disagrees.
As an initial matter, Moxey bases his Certification
Request

on

the

argument

that

the

Bankruptcy

Court’s

Order

“involves a question of law requiring resolution of conflicting
decisions.”

(See Certification Request at 112.)

Section 158 of

Title 28 permits the Bankruptcy Court to certify a direct appeal
of a court order on this basis.

28 U.S.C. § 158(d)(2)(A)(ii).

In other words, an appellant must identify a split of authority
that requires the Second Circuit’s intervention.

In re Gen.

Motors Corp., 409 B.R. 24, 28 (Bankr. S.D.N.Y. 2009).
But Moxey has failed to do so.

Rather, he repeats the

refrain of his prior motions, specifically the allegations of
race-related
Br.)

bias.

(See

generally

Appellant’s

Certification

To be sure, Moxey cites a number of cases in his brief.

None of the cited authority, however, is not in conflict, nor do
the cases relate to the validity of the Certification Request.
6

Thus, the Bankruptcy Court’s denial of the Certification Request
is AFFIRMED.
IV.

Stay Motion
Finally, Moxey challenges the Bankruptcy Court’s Order

denying his Stay Motion.

(Appellant’s Am. Stay Br., Docket

Entry 7.) As a preliminary matter, Moxey is seeking to stay the
following Orders:
a. Docket Entry 148 – An Order denying
Moxey’s second motion to remand (the
“Remand Order”);
b. Docket Entry 150 – An Order granting
motions to dismiss and denying Moxey’s
motion to amend (the “Dismissal Order”);
c. Docket Entry 152 – An Order denying
Moxey’s motions for orders vacating and/or
staying the Court’s July 16, 2014 Order,
imposing sanctions, and directing Moxey to
appear
and
testify
(the
“Discovery
Sanctions Order”);
d. Docket Entry 157 – An Order setting a
hearing date for Rule 9011 sanctions (the
“Rule 9011 Sanctions Order”); and
e. Docket Entry 163 – An Order clarifying the
hearing on Rule 9011 sanctions and setting
briefing schedules for replies to Moxey’s
certification
motion
(the
“Protocol
4
Order”).

These Docket Entries can be found on the docket for Bankruptcy
Case No. 8-13-8108.
4

7

But this challenge suffers from

(Notice of Stay Mot. at 2.)5
three fatal flaws.

First, Moxey failed to validly appeal these orders.
The Remand, the Dismissal, and the Discovery Sanctions Orders
were each entered on November 25, 2014; the 9011 Sanctions Order
was entered on December 3, 2014, and the Protocol Order was
entered

on

December

18,

2014.

Under

Federal

Rule

of

Bankruptcy 8002(a), “a notice of appeal must be filed with the
bankruptcy clerk within 14 days after entry of the judgment,
order, or decree being appealed.”

Fed. R. Bankr. P. 8002(a).

Moxey, however, only filed a request for a direct appeal to the
Second Circuit on December 9, 2014.
Entry 160-1.)6
that

Moxey

The docket does not contain any entries showing

filed

various Orders.

(Case No. 8-13-8108, Docket

a

Notice

of

Appeal

to

this

Court

for

his

His failure to do so bars his claims.

Second, with the exception of the Discovery Sanctions
Order,

a

stay

cannot

provide

any

affirmative

relief

here.7

Staying the Remand and the Dismissal Orders could provide no
discernible

relief,

as

there

are

no

specific

actions

or

The Notice of Stay Motion can be found at Docket Entry 3-2 at
1-4.
5

The Bankruptcy Court denied that request on February 25, 2015.
(Case No. 8-13-8108, Docket Entry 187.)
6

The Bankruptcy Court levied $5,250 in sanctions against Moxey.
(Case No. 8-13-8108, Docket Entry 152.)
7

8

proceedings

that

can

be

stayed.

And

both

the

Rule

9011

Sanctions and the Protocol Orders merely set a hearing date,
which took place on January 20, 2015.
Third,
Orders,

even

Moxey’s

determination

if

Stay

of

Moxey

validly

Motion

whether

to

(See Case No. 8-13-8108.)

fails
grant

appealed

on

a

the

stay

the

various

merits.

is

the

The

Bankruptcy

Court’s to make and thus is reviewed for “abuse of discretion.”
See

In

re

(Bankr.

Adelphia

S.D.N.Y.

(collecting
factors

Commc’ns

2007)

cases).

are

irreparable

injury

(internal

In

relevant:

Corp.,

361

quotation

reaching

“‘(1)

absent

this

whether

a

stay,

B.R.

marks

346

movant

whether

will
a

n.31

omitted)

determination,

the

(2)

337,

four
suffer

party

will

suffer substantial injury if a stay is issued, (3) whether the
movant
less

has

than

demonstrated
a

‘a

substantial

likelihood,

of

success’

possibility,

on

public interests that may be affected.’”

appeal,

and

although
(4)

the

In re TE Roslyn LLC,

No. 12-71112, 2012 WL 3063991, at *3 (Bankr. E.D.N.Y. July 26,
2012)

(quoting

In

re

Taub,

470

B.R.

273,

277-78

(E.D.N.Y.

2012)); Hirschfield v. Bd. of Elections in the City of N.Y., 984
F.2d 35, 39 (2d Cir. 1992) (collecting cases).

No one factor is

dispositive,

in

process.”
the

moving

as

the

a

balancing

In re Gen. Motors Corp., 409 B.R. at 30.

Moxey, as

party,

entitlement to stay.

Court

bears

the

must

“engage[]

“heavy”

burden

in

proving

an

Id.; United States v. Private Sanitation
9

Indus. Ass’n of Nassau/Suffolk, Inc., 44 F.3d 1082, 1084 (2d
Cir. 1995) (“A party seeking a stay of a lower court’s order
bears a difficult burden.”).
A.

Irreparable Harm
Moxey has failed to demonstrate any irreparable harm.

As stated above, Moxey was sanctioned for his conduct, and a
stay is otherwise inapplicable for the remaining Orders Moxey is
appealing.
B.

Substantial Possibility of Success on the Merits
Moxey has likewise failed to demonstrate a substantial

possibility

of

success

on

the

merits--“[t]he

important factor” of this Court’s analysis.
B.R. at 278.
same

single

most

In re Taub, 470

Various portions of Moxey’s papers present the

allegations

of

racism

contained

in

his

other

motions.

(See, e.g., Stay Mot. at 8 (“[T]he court is bias[ed] against
Moxey and plaintiff filed a motion for judicial recusal.”) and
Appellant’s Am. Stay Br. at 20 (“[T]he bankruptcy court cannot
even

muster

reveal[ed]

the
a

appearance

high

degree

of
of

impartiality
favoritism

or

and

Judge

Trust

antagonism.”).)

Elsewhere, Moxey argues that a stay should be granted based on a
supposed ex parte communication between the Court and Defendant
Tuthill Finance (“Tuthill”), (Stay Mot. at 6, ¶¶ 2-3), but this
communication was actually an e-mail from the Court to Tuthill’s

10

counsel, which was copied to Moxey.

(Order Denying Appellant’s

Stay Mot. at 4.)
Moxey, moreover, asserts the same arguments rejected
in the Bankruptcy Court’s prior orders.

(See, e.g., Appellant’s

Am. Stay Br. at 2-3 (listing the issues of Moxey’s motion).)
Indeed,

the

Bankruptcy

things,

(1)

Defendants’

Court

already

Barton

addressed,

doctrine

defense,

among

other

(2) Moxey’s

arguments regarding the enforceability of a note and mortgage,
(3)

Moxey’s

Moxey’s

lack

collateral
of

attack

standing

against Defendant Tuthill.
n.6,

439-42

(Bankr.

to

of

a

bring

certain
an

order,

adversary

and

(4)

proceeding

See In re Moxey, 522 B.R. 428, 435

E.D.N.Y.

2014).

The

Court

finds

the

Bankruptcy Court’s opinion to be well-reasoned, and Moxey offers
no basis, in fact or in law, to hold otherwise.
C.

Injury to Other Parties
The third factor of the analysis looks to the harm

that could befall the parties opposing the stay.

This Court

follows the Bankruptcy Court’s lead and finds that this factor
is inapplicable because a stay would not necessarily cause any
substantial harm to Defendants.

(See Order Denying Appellant’s

Stay Mot. at 6.)
D.

Public Interest
The final factor looks to the public interest.

Court

must

contemplate

the

just,
11

speedy,

and

The

inexpensive

resolutions

of

civil

disputes.

28

U.S.C.

§

471.

In

that

regard, the Court will consider “‘the expeditious administration
of

bankruptcy

cases

[which]

is

impaired

by

obstructing

the

trustee’s efforts to collect, liquidate and distribute assets to
creditors of the estate.’”

In re Albicocco, No. 06-CV-3409,

2006 WL 2620464, at *4 n.8 (E.D.N.Y. Sept. 13, 2006) (quoting In
re Metiom, Inc., 318 B.R. 263, 272 (S.D.N.Y. 2004)) (alteration
in

original).

Moxey

has

not

offered

any

public

interest

concerns, and the Court emphasizes that he has filed a number of
motions that the Bankruptcy Court found to be baseless.

Thus,

the public interest will not be served by delaying this dispute
any further.
E.

Balancing
Considering all of the above factors, Moxey has not

demonstrated

that

a

stay

is

warranted

pending

appeal.

Critically, Moxey has not shown a substantial possibility of
success on the merits.

Thus, the Bankruptcy Court’s denial of

the Stay Motion is AFFIRMED.

[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]

12

CONCLUSION
The

Bankruptcy

Court’s

denial

of

Appellant

Kenneth

Moxey’s Recusal Motion, his Certification Request, and his Stay
Motion is AFFIRMED.

The Clerk of the Court is directed to mail

a copy of this Memorandum and Order to the pro se Appellant and
to mark these appeals CLOSED.

SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

March
16 , 2016
Central Islip, New York

13