United States Trustee v. Phillips

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-1-	MEMORANDUM
UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
In re
WILLIE E. PHILLIPS,
Debtor.
UNITED STATES TRUSTEE,
Plaintiff,
vs.
WILLIE E. PHILLIPS,
Defendant.
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Case No. 06-30590 TEC 7
Chapter 7
Adv. Proc. No. 06-3124 TC
(transferred from Bankr.
S.D. Cal.)
MEMORANDUM RE DEFENDANT’S MOTION FOR CONTINUANCE
OF TRIAL DATE AND FOR RECUSAL OF TRIAL JUDGE
This court held a hearing on August 3, 2007 re Defendant’s
motion for continuance of trial, and for recusal of the undersigned
judge. 	Bruce P. Zelis appeared for Defendant. 	Minnie Loo appeared
for Plaintiff.
Plaintiff did not object to Defendant’s motion to continue,
Signed and Filed: August 07, 2007
________________________________________
THOMAS E. CARLSON
U.S. Bankruptcy Judge
________________________________________
Entered on Docket
August 07, 2007
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 06-03124 Doc# 38 Filed: 08/07/07 Entered: 08/07/07 16:36:18 Page 1 of 4

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-2-	MEMORANDUM
and the court continued the trial to November 27, 2007, and
extended the discovery cutoff until October 29, 2007.
Defendant’s motion to recuse asserts that a reasonable person
would question my impartiality because: 	(1) I enforced a decision
by the three judges of the Oakland division of this court that
Defendant should not be appointed as counsel for the debtor in
possession in any chapter 11 case; (2) I ruled against Defendant’s
client in a recent case in which Defendant believes I should have
ruled in favor of his client; and (3) I will be called as a witness
in the present case because the complaint refers to the above-noted
decision by the three Oakland judges.
Defendant’s motion does not state grounds for disqualification
under 28 U.S.C. § 455 for the following reasons.
Grounds (1) and (2) do not involve either knowledge obtained
from an extra-judicial source or evince favoritism or antagonism
that would make fair judgment impossible. 	The Supreme Court has
set forth the following text:
First, judicial rulings alone almost never constitute a
valid basis for a bias or partiality motion. . . .
Second, opinions formed by the judge on the basis of
facts introduced or events occurring in the course of the
current proceedings, or of prior proceedings, do not
constitute a basis for a bias or partiality motion unless
they display a deep-seated favoritism or antagonism that
would make fair judgment impossible.
Liteky v. United States, 510 U.S. 540, 555 (1994) (emphasis
added). 	With respect to knowledge obtained in prior
proceedings, the Court explained:
“Impartiality is not gullibility. 	Disinterestedness does
not mean child-like innocence. 	If the judge did not form
judgments of the actors in those court-house dramas
called trials, he could never render decisions.” 	In re
J.P. Linahan, Inc., 138 F.2d 650, 654 (CA2 1943). 	Also
not subject to deprecatory characterization as “bias” or
Case: 06-03124 Doc# 38 Filed: 08/07/07 Entered: 08/07/07 16:36:18 Page 2 of 4

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-3-	MEMORANDUM
“prejudice” are opinions held by judges as a result of
what they learned in earlier proceedings. 	It has long
been regarded as normal and proper for a judge to sit in
the same case upon its remand, and to sit in successive
trials involving the same defendant.
Id. at 451.
Nor does ground (3) establish a basis for recusal. 	I do not
have knowledge of disputed evidentiary facts concerning the
proceeding, such that I may be called as a witness. 	Although the
complaint does refer to the decision of the three Oakland judges,
my sole role was to enforce that decision against Mr. Phillips as I
would enforce an applicable prior ruling by any court of competent
jurisdiction.
**END OF MEMORANDUM**
Case: 06-03124 Doc# 38 Filed: 08/07/07 Entered: 08/07/07 16:36:18 Page 3 of 4

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Court Service List
Willie E. Phillips, Esq.
484 Lake Park Avenue, Suite 335
Oakland, CA 94610
Bruce P. Zelis, Esq.
Law Offices of Bruce P. Zelis
1943 1st Avenue
Walnut Creek, CA 94596
Minnie Loo, Esq.
Office of the U.S. Trustee
1301 Clay Street, Suite 690N
Oakland, CA 94612-5217
Case: 06-03124 Doc# 38 Filed: 08/07/07 Entered: 08/07/07 16:36:18 Page 4 of 4