Kelly, Brian et al v. Herrell, Peter

Filing 39

ORDER denying 27 Motion to stay pending appeal. Signed by District Judge Barbara B. Crabb on 6/11/2014. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - BRIAN J. KELLY, Debtor, and
PAUL L. KELLY, Creditor,
OPINION AND ORDER
Appellants,
13-cv-633-bbc
v.
PETER F. HERRELL, Trustee,
Appellee.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Debtor Brian Kelly and his father, creditor Paul Kelly, (the appellants) are proceeding
pro se in this bankruptcy case involving a chapter 7 involuntary petition. On March 19,
2014, I dismissed appellants’ appeal of several interlocutory orders and decisions made by
the Bankruptcy Court for the Western District of Wisconsin because none of the issues
raised by appellants were properly before this court. Appellants have appealed that order to
the Court of Appeals for the Seventh Circuit and have asked this court to stay the
bankruptcy proceedings pending that appeal under Fed. R. Bankr. P. 8005. Dkt. #27.
Fed. R. Bankr. P. 8005 provides that “[a] motion for a stay of the judgment, order,
or decree of a bankruptcy judge . . . or for other relief pending appeal must ordinarily be
presented to the bankruptcy judge in the first instance.” However, a motion for such relief
may be made to the district court as long as the movant shows why he did not obtain relief
from the bankruptcy judge. Id. Appellants contend in their reply brief that they did not
seek relief from the bankruptcy court because it would have been futile. They complain that

United States Bankruptcy Judge Catherine Furay refused to recuse herself and did not vacate
two orders that she had entered even though she had served previously as debtor’s
bankruptcy attorney. Dkt. #38. However, as discussed in this court’s previous order, Judge
Furay transferred appellant’s case to Chief Bankruptcy Judge Robert Martin immediately
after appellants filed a motion requesting that she recuse herself and vacate her two orders.
Dkt. #31 at 4. Any concerns that appellants may have had about Judge Furay’s impartiality
have been mooted by the transfer of the case to Judge Martin.
To the extent that appellants believe that Judge Martin’s rulings in their case show
bias against them, this is not a reason to allow them to circumvent the bankruptcy court.
The fact that a judge or court has ruled previously against a party does not constitute bias.
Liteky v. United States, 510 U.S. 540, 555 (1994) (by themselves, judicial rulings almost
never constitute a valid basis for a bias or partiality motion); United States v. Slaughter, 900
F.2d 1119, 1126 n.5 (7th Cir. 1990) (bias and prejudice must be personal, not based on
particular judicial proceeding). Accordingly, appellants’ motion to stay the proceedings in
the bankruptcy court will be denied.

ORDER
IT IS ORDERED that the motion to stay pending appeal filed by Debtor Brian Kelly

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and Creditor Paul Kelly, dkt. #27, is DENIED.
Entered this 11th day of June, 2014.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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