Opinion
No. C 00-4714 MMC
December 5, 2003
ORDER AFFIRMING DECISIONS OF BANKRUPTCY COURT
Appellant/debtor Patricia A. McColm ("McColm") has filed a notice of appeal, in which she appeals two decisions, both issued on December 4, 2000, by the United States Bankruptcy Court, Northern District of California: (1) Order Authorizing 2004 Examination of Addus Health Care Inc., Wayne Alexis, Linda Higgins and Johnny E. Duran and (2) Order Authorizing 2004 Examination of Golden Eagle Insurance Company.
Before the Court is McColm's brief in support of her notice of appeal. Appellee/trustee Brian A. Holt ("Holt") has not filed a response. Having considered the brief filed, the Court rules as follows.
McColm's request for oral argument is hereby DENIED.
BACKGROUND
On June 1, 2000, McColm filed a petition for bankruptcy protection under Chapter 11 of the United States Bankruptcy Code. (See Docket of Proceedings, Bankruptcy Petition # 00-31332 ("Docket"), No. 1.) On November 8, 2000, the bankruptcy judge, the Honorable Dennis Montali, issued an order converting the case to a Chapter 7 proceeding and appointing Holt as trustee ("order of conversion"). (See Docket No, 153.) On December 4, 2000, Holt filed an "Application . . . for Examination of Addus Health Car[e] Inc., Wayne Alexis, Linda Higgins and Johnny E. Duran Under Rule 2004," (see Docket No. 186), and an "Application . . . for Examination of Golden Eagle Insurance Co. Under Rule 2004," (see Docket No. 188.) Both applications were granted by Judge Montali on December 4, 2000. (See Docket Nos. 187, 189.)DISCUSSION
McColm has appealed from the two orders granting Holt the authority, under Rule 2004 of the Federal Rules of Bankruptcy Procedure, to conduct examinations of certain persons and entities. McColm argues that because the earlier-filed order of conversion was erroneous, all subsequent orders, including the two orders that are the subject of this appeal, were likewise erroneous. McColm additionally argues that Judge Montali should be disqualified.
As a threshold matter, the Court observes that McColm, on November 9, 2000, filed a notice of appeal from the order of conversion. (See Docket No. 160.) That separate appeal was assigned to United States District Judge Martin J. Jenkins, who later dismissed the appeal due to McColm's failure to comply with the briefing schedule.See In re McColm, C 00-4223 MJJ (N.D. Cal. Jan. 31, 2001). The Ninth Circuit subsequently affirmed the dismissal. See In re McColm, 2002 WL 31654512 (9th Cir. November 22, 2002). McColm offers no authority, nor has the Court located any such authority, to support the proposition that, in spite of the Ninth Circuit having affirmed the dismissal of her appeal from the order of conversion, she nevertheless is entitled to collaterally attack the order of conversion in this proceeding.
To the extent McColm's brief can be construed as a request for leave to amend her notice of appeal to include an appeal from the order of conversion, leave would be improper. Although "a mistake in designating the judgment appealed from should not bar appeal as long as the intent to appeal a specific judgment can be fairly inferred and the appellee is not prejudiced or misled by the mistake," United States v. One 1977 Mercedes Benz, 708 F.2d 444, 451 (9th Cir. 1983), here, it is clear that McColm did not mistakenly fail to designate the order of conversion in the notice of appeal filed on December 14, 2000, because, as of that date, McColm's separately-filed notice of appeal from the order of conversion was pending decision before Judge Jenkins. Moreover, the Court would lack jurisdiction over any such notice of appeal to the extent it is amended to designate the order of conversion, because the instant notice of appeal was filed more than a month after the order of conversion was filed in the Bankruptcy Court.See In re Souza, 795 F.2d 855, 858 (9th Cir. 1986) (holding district court lacked jurisdiction over bankruptcy appeal where notice of appeal was filed more than 10 days after entry of order being appealed). Simply put, whether or not the order of conversion was properly entered is not an issue within the scope of this proceeding.
To the extent McColm, in arguing that grounds exist for disqualification of Judge Montali, may be contending that the two orders of December 4, 2000 should be vacated on such grounds, the Court finds no basis for setting aside the orders or for disqualification. McColm's request for disqualification is based entirely on her contention that certain orders made by Judge Montali during the course of the above-referenced bankruptcy proceeding, as well as during the course of other unidentified proceedings, were erroneous. A judge's adverse rulings are not sufficient cause for disqualification or recusal. See United States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986) ("The alleged prejudice must result from an extrajudicial source; a judge's prior adverse ruling is not sufficient cause for recusal.")
In sum, other than challenging the order of conversion and requesting disqualification, McColm does not argue that the two orders of December 4, 2000, granting Holt permission to conduct Rule 2004 examinations, are erroneous. Because this Court lacks jurisdiction to consider whether the order of conversion was proper and there is no basis for disqualification, the orders of December 4, 2000 will be affirmed.
CONCLUSION
For the reasons stated above, the Order Authorizing 2004 Examination of Addus Health Care Inc., Wayne Alexis, Linda Higgins and Johnny E. Duran, filed December 4, 2000, and the Order Authorizing 2004 Examination of Golden Eagle Insurance Company, also filed December 4, 2000, are hereby AFFIRMED.The Clerk shall close the file.
IT IS SO ORDERED.