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In re Lebbos

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


July 28, 2008

IN RE: BETSEY WARREN LEBBOS, DEBTOR,
BETSEY WARREN LEBBOS, APPELLANT,
v.
LINDA SCHUETTE, APPELLEE.
IN RE: BETSEY WARREN LEBBOS, DEBTOR,
BETSEY WARREN LEBBOS, JASON GOLD, THOMAS CARTER, APPELLANTS,
v.
LINDA SCHUETTE, APPELLEE.

The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge

MEMORANDUM AND ORDER

The above captioned actions are before the court on appellant Betsey Warren Lebbos' ("appellant") motions to disqualify the undersigned from hearing these bankruptcy appeals.*fn1 Appellant contends that pursuant to 28 U.S.C. § 455, the undersigned must disqualify himself because he is biased against appellant due to her disability (alleged severe asthma).*fn2

Appellant bases this bald assertion on the simple fact that the court refused, in a related proceeding, to allow an attorney to specially appear on appellant's behalf at a hearing on her emergency motion to stay certain bankruptcy proceedings. (In re: Betsey Warren Lebbos, No. Civ. S-08-440 FCD, hearing held April 7, 2008.)*fn3

Section 455(a) provides: "Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The test for disqualification under this section is an objective one: "whether a reasonable person with knowledge of all the facts would conclude the judge's impartiality might reasonably be questioned." United States v. Nelson, 718 F.2d 315, 321 (9th Cir. 1983). Here, no such facts exist which could conceivably give rise to a finding of bias against appellant.

At the prior hearing in the related appeal, Case No. Civ. S-08-440 FCD, the court denied appellant's request to have her co-appellants' counsel appear on her behalf. Appellant appeared in that related action, as she does here, pro per. As a result, counsel for her co-appellants could not appear on her behalf--"special appearances" by counsel are not permitted by the Local Rules. E.D. Cal. L.R. 83-182, 83-183. Appellant was, however, permitted (and able)*fn4 to speak at the hearing on her own behalf, and after full consideration of the parties' papers and oral argument, the court denied appellants' motions for an emergency stay. (Mem. & Order, filed April 7, 2008 in Case No. Civ. S-08-440 FCD.) No reasonable person could construe these facts as evidencing a bias against appellant.

Indeed, courts have routinely held that "adverse rulings do not constitute the requisite bias" for purposes of disqualification under Section 455(a). See e.g. Nelson, 718 F.2d at 321 (citing cases) (holding judge's acceptance of an invalid guilty verdict in the defendant's first trial did not necessitate recusal); United States v. Sibla, 624 F.2d 864, 869 (9th Cir. 1980) (emphasizing that recusal under Section 455(a) is only required where the bias or prejudice stems from an "extra-judicial source"). That appellant's request for appearance by counsel and motion for stay were ultimately denied provides no grounds for recusal of the undersigned. Appellant's motions to disqualify are HEREBY DENIED.

IT IS SO ORDERED.


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