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IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
WILLIAM H. MALOOF, ) Case No. 09-4251
Petitioner )
)
vs. )
)
HON. RANDOLPH BAXTER, )
Judge, United States Bankruptcy Court )
Northern District of Ohio )
Respondent )
_______________________________________________________________________
AMENDED PETITION FOR A WRIT OF MANDAMUS
________________________________________________________________________
Now comes William H. Maloof, Petitioner in the above captioned matter, and for his Amended Petition for a Writ of Mandamus states as follows:
PARTIES
1.) Petitioner is the sole shareholder of Level Propane Gases, Inc. and related corporations, presently subject to the jurisdiction of the United States Bankruptcy Court for the Northern District of Ohio, pursuant to a certain Chapter 11 Case styled In Re: Level Propane Gases, Inc., et al., Case No. 02-16172 (U.S.B.C., N.D.O.) in which he is also a creditor;
2.) Respondent is the United States Bankruptcy Judge for the Northern District of Ohio, presently presiding over In Re: Level Propane Gases, Inc., et al., supra, whose recusal in relation to this case is the subject of this Petition for a Writ of Mandamus.
JURISDICTION
3.) This Court has jurisdiction over this matter under 28 U.S.C. Sec. 1661 (All Writs Act), 28 U.S.C. 1331(Federal Question) and 28 U.S.C. Section 158 (Bankruptcy Jurisdiction.)
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FACTUAL BASIS FOR THE PETITION
4.) On June 6, 2002, Level Propane Gases, Inc. and its related corporations were placed in involuntary Chapter 7 bankruptcy by Deutsche Bank, LaSalle Bank N.A. and Provident Bank, N.A. (now part of National City Bank), collectively, the Bank Group, parties to a certain loan facility of Level Propane Gases, Inc. and the related corporations. Respondent was assigned to the proceedings, upon Petitioner’s information and belief, as a result of “judge shopping” based upon the following matters of record in the Bankruptcy Court PACER record of June 6, 2002, the date the Level Propane Involuntary Petitions were filed. This record shows the following: the Level Propane Gases, Inc. Involuntary Petition bears the case number 02-16172, with which were filed petitions for related entities bearing the case numbers 02-16173 through 02-16178. At the time that these petitions were filed, bankruptcy petitions of all kinds were filed on paper, in person, with the Clerk of the Bankruptcy Court. The judges were assigned using an automated random number generator. The Local Rules were and are silent as to the order in which the judge is chosen, the case number stamped on the paper petition and the paper petition time-stamped. At the time that these petitions were filed there were two (2) judges in the Cleveland Office of the Northern District, Judge Morgenstern-Clarren and Judge Baxter. Judge Snow had retired in June, 2000 and his seat on the bench would not be filled until October, 2002.
5.) The docket discloses the following evidence: 84 new cases were filed on June 6, 2002, bearing case numbers 02-16105 through 02-16189. The Level Propane petitions were filed toward the end of the day. Immediately before these petitions were filed, Attorney Jonathan Krainess filed four separate petitions: 02-16167, 02-16169, 02-16170 and 02-16171 all but one of which, 02-16170, drew Judge Morgenstern-Clarren. Case No. 02-16170 drew Judge Baxter.
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Another petition, 02-16168, was filed by Attorney Barbara Brown-Daniels, which drew Judge Morgenstern-Clarren. Immediately after the last of the Level Propane petitions, 02-16178, Jonathon Krainess filed 02-16179, which drew Judge Morgenstern-Clarren. The filing fee receipt for the case filed by Ms. Brown-Daniels bore the number 104989.The filing fee receipt for the Level Propane cases bore the number 104990, the filing fee receipt for all five of the cases filed by Mr. Krainess bore the number 104991.
6.) The docket evidence reveals these facts: Attorney Krainess was in line in front of those filing the Level Bankruptcy. He allowed Attorney Brown-Daniels to file her single case, leaving those filing the Level Propane cases immediately behind him. He then drew Judge Morgenstern-Clarren for 02-16171. He then allowed the Level Propane cases in front of him, which drew Judge Baxter. Mr. Krainess then filed 02-16179, which drew Judge Morgenstern- Clarren. Mr. Krainess apparently permitted his filing of no less than five cases to be interrupted by the filing of eight (8) involuntary corporate petitions. The facts in this state, as reflected by the Court docket, strongly suggest that the parties filing the Level Propane involuntary petitions made specific efforts to choose Judge Baxter specifically as the judge to preside over those cases. Until the issue of a random draw arose as a result of the email evidence described below in this Petition, as an extrinsic factual basis on which to challenge to their authenticity, Petitioner had no reason to question whether any attempt to manipulate the draw had been made, nor indeed was such am attempt to manipulate the draw even relevant to the any issue bearing on this case.
7.) On April 1, 2008, Petitioner moved Respondent to recuse himself from the proceedings in In Re: Level Propane Gases, Inc. 02-16172 (Dkt. No. 3298, Exhibit 1, attached) based on the fact that he was presented with scurrilous and defamatory material related to Petitioner as an exhibit to a Motion to Appoint Trustee made by the lead lenders of Level
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Propane Gases, Inc., which Motion was later withdrawn. On May 6, 2008, Respondent denied Petitioner’s Motion and refused to recuse himself (Order of May 6, 2008, Dkt. No. 3326, Exhibit 2, attached). In said Order, the Respondent denying knowledge of the Carmen Zagaria prosecutions in the early 1980s or of the party that made the defamatory charge against Petitioner, stating that he had referred the matter to the United States Attorney to confirm and report that he had no contact with these prosecutions, despite his employment as an Assistant United States Attorney during the time Carmen Zagaria was prosecuted. No such report was ever made public.
8.) Respondent’s denial of the recusal motion was not appealable. Petitioner did not file for a writ of mandamus, since in this Circuit the articulated basis for any such petition would have little chance of establishing a clear legal right for such recusal, City of Cleveland v. Krupansky, 619 F.2d 576 (6 th Cir., 1980).
9.) On October 9, 2008, the Liquation Plan for the Level Propane Estate was confirmed by the Respondent, Dkt. No. 3471. On April 6, 2009, Petitioner filed a Complaint to Revoke Confirmation pursuant to 11 U.S.C. §1144, alleging fraud on the Court, Maloof v. Uhrich, Case No. 09-1127.
10.) On June 1, 2009, Petitioner filed a Motion to Recuse Respondent in Maloof v. Uhrich, supra (Dkt. No. 23, Exhibit 3,) based on the discovery of a series of emails dating from 2000 and 2001 in which Respondent was named as a participant in an criminal scheme to seize control of Level Propane Gases, Inc. and its affiliate companies through the Bankruptcy Court. On July 16, 2009, Petitioner submitted a Declaration of his forensic examiner in which it was averred that the emails were “neither fabricated nor contrived,” (Dkt. No. 35, Exhibit 4.)
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11.) On September 8, 2009, Respondent denied Petitioner’s Motion to Recuse in Maloof v. Uhrich, supra, from the bench, specifically stating that the above said emails were fraudulent and that the presentation of these emails in court was criminal conduct which he referred to the Department of Justice and the FBI for prosecutorial consideration. In that same ruling from the bench, Respondent recused himself from further proceedings in Maloof v. Uhrich, supra. Respondent further stated that Petitioner had previously sought his recusal in In Re: Level Propane Gases, Inc., Case No. 02-16172, which he denied (Dkt. No. 3326, Exhibit 2, above) the confirmation of which plan the Complaint to revoke, Maloof v. Uhrich, supra, directly related, which involved the same parties, which cases were inextricably bound both in subject matter and procedurally under the Bankruptcy Code, and upon which the same basis for recusal, that he had been named by participants in the scheme to seize control of Level Propane, would lie.
12.) On September 21, 2009, Respondent placed on the Docket in Maloof v. Uhrich, supra, an Order, Dkt. No. 42, (Exhibit 5, attached) specifically denying Petitioner’s Motion to Recuse, stating the emails upon which that Motion was based were fabrications. On September 22, 2009, Respondent placed on the Docket in Maloof v. Uhrich, supra, an Order, Dkt. No. 45, (Exhibit 6, attached) in which he referred Petitioner to the United States Attorney and the FBI for prosecutorial consideration for fraud on the Court, described the email evidence as “bogus,” specifically referred to the prior Motion to Recuse made in In Re: Level Propane Gases, Inc., supra, see Exhibits 2 and 6, and then recused himself from further proceedings in this case.
13.) On September 22, 2009, Arthur I. Harris of the Northern District was assigned to replace the Respondent as the judge in Maloof v. Uhrich, Case No. 09-1127, pursuant to that Order of Recusal.
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PETITIONER’S CLEAR LEGAL RIGHT TO RECUSAL OF RESPONDENT
14.) In each of the Orders above, Respondent specifically identified Petitioner as a claimant in In Re: Level Propane Gases, Inc., Case No. 02-16172. The issues that Maloof v. Uhrich, supra, seeks to address are fraud on the bankruptcy court that goes back to the initial filing in June, 2002, and are, as set forth above, inextricably interconnected with In Re: Level Propane Gases, Inc., supra, over which Respondent presided since June, 2002, and the conduct of which the complaint in Maloof v Uhrich, supra, challenges, including the Orders made by the Respondent.
15.) Because Petitioner cannot seek recusal of Respondent in In Re: Level Propane Gases, Inc., Case No. 02-16172, because he had already done so pursuant to 28 U.S.C. §455 and Bankr. R. 5004, Petitioner is without any remedy other than this Petition. 16.) Because Respondent has recused himself from Maloof v. Uhrich, supra, which addresses the very legitimacy of the proceedings in In Re: Level Propane Gases, Inc., supra, and has specifically identified Petitioner as a claimant in those proceedings, Petitioner has a clear legal right to the recusal of Respondent in those proceedings. A Memorandum in Support of this Petition is submitted herewith and hereby incorporated by reference.
PRAYER FOR RELIEF
WHEREFORE, Petitioner prays that this Court issue a writ of Mandamus to the Respondent, directing him to recuse himself from further service as Bankruptcy Judge in In Re: Level Propane Gases, Inc., et al., Case No. 02-16172 because the Respondent has recused himself in Maloof v. Uhrich, Case No. 09-1127, an adversary proceeding that challenges the confirmation of the Liquation Plan on the basis of fraud pursuant to 11 U.S.C. §1144.
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Respondent has failed to recuse himself from In Re: Level Propane Gases, Inc., Case No. 02- 16172, despite the fact that he has already acknowledged and articulated the clear basis on which his impartiality might reasonably be questioned by his Order of Recusal in Maloof v. Uhrich, supra, Case No. 09-1127, which is inextricably connected to these Chapter 11 proceedings. Further, Petitioner prays for such other relief as is just in the premises.
Respectfully Submitted,
/s/ David C. Eisler .
David C. Eisler, Counsel for William H. Maloof
Ohio Reg. No. 0020362
P.O. B. 1721
Medina, OH 44258
(216) 214-2106
inqs@AOL.com
SERVICE
The foregoing has been filed electronically this 7 th day of December, 2009. It has been electronically served on all parties to this action whose counsel have entered a notice of appearance herein. It is available to all other parties who access the Court website.
/s/David C. Eisler _______________
David C. Eisler, Counsel for Plaintiff
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