In re Hussey, 05-30361-BKC-JKO.

Page 911

391 B.R. 911

In re Jodi B. HUSSEY and Mark A. Hussey, Debtors.

No. 05-30361-BKC-JKO.

United States Bankruptcy Court, S.D. Florida, Fort Lauderdale Division.

August 21, 2008.

Eric S. Glatter, Boca Raton, FL, for Debtors.

ORDER DENYING MARY ALICE GWYNN'S MOTION TO RECUSE BANKRUPTCY JUDGE

JOHN K. OLSON, Bankruptcy Judge.

THIS CASE is before me on the Verified Motion for Recusal of the Honorable John K. Olson Pursuant to Bankruptcy Rule 5004, 28 U.S.C. § 144 and § 144 (the "Recusal Motion") [DE 299] filed November 30, 2007, by Mary Alice Gwynn ("Ms. Gwynn"), purportedly¹ as a creditor of these chapter 7 debtors, and on Mary Alice Gwynn's Response to the Court's Order on Ms. Gwynn's Purported Compliance with Practice Requirements and Supplement to Mary Alice Gwynn's Motion for Recusal [DE 311], filed December 11, 2007 (the "Supplemental Motion," and together with the Recusal Motion, the "Recusal Motions").

I conducted a hearing on the Recusal Motions on December 17, 2007, and denied them on the record. An excerpted transcript of the relevant portion of that hearing was filed on May 7, 2008, as Docket Entry 322. This Order memorializes my reasons for denying the Recusal Motions.

I. Background

I inherited this case pursuant to Chief Judge flyman's Order Transferring Case [DE 278] entered October 30, 2007.² That Order was entered after Ms. Gwynn filed her Emergency Motion to Disqualify and Request to Stay Proceedings (the "Emergency Motion") [DE 276], filed October 29, 2007. In the Order Transferring Case, Judge Hyman correctly ruled that no basis for his disqualification had been stated but that judicial efficiency suggested that it was appropriate to transfer this case to me because a related corporate case, In re It's AU in the Style, Inc., Case No. 05-30362, had been transferred to me in August 2007.

In the Emergency Motion, Ms. Gwynn sought two distinct forms of relief. First, she sought entry of an order disqualifying Chief Judge Hyman from further presiding in this case and to transfer the case to me. Second, she sought a stay of all proceedings in this case pending determination of an appeal now pending in the United States Court of Appeals for the Eleventh Circuit. I conducted a hearing on the Emergency Motion on November 7, 2007, and entered an Order denying the relief sought on November 9, 2007 [DE 285], published as In re Hussey, 378 B.R. 397 (Bankr.S.D.Fla.2007). I denied the Emergency Motion as moot to the extent that it sought Judge Hyman's disqualification and denied the balance of the Emergency Motion on the merits.

The matters giving rise to the Recusal Motions all occurred at the hearing on the Emergency Motion on November 7, 2007, and chiefly arise out of colloquy between Ms. Gwynn and me at that hearing relating to her non-compliance with the Local Rules of this Court. A transcript of that hearing is found at Docket Entry 289 and portions of it are contained in the Recusal Motion.

As I ruled in the Order denying the Emergency Motion, Ms. Gwynn's pleadings in this case which were then before me did not bear either of the alternative certifications required under this Court's then-applicable³ Local Rule 9011-4, which provided in relevant part as follows:

(A) Identification of Attorney. In the signature block of all court papers signed by an attorney, the attorney must be identified by name, state bar number, complete mailing address, telephone number and the name of the party who [sic] the attorney represents.

(B) Certification of Attorney. Papers filed by an attorney appearing:

(1) as a qualified attorney pursuant to Local Rule 2090-1(A) must contain this certification: "I hereby certify that I am admitted to the' Bar of the United States District Court for the Southern District of Florida and am in compliance with the additional qualifications to practice in this court set forth in Local Rule 2090-1(A)." (2) pro hac vice pursuant to Local Rule 2090-1(B)(2) must contain this certification: "I hereby certify that the undersigned attorney is appearing pro hac vice in this matter pursuant to court order dated (date)." This certification shall be placed in papers in the locations described in subdivision (1) above.

In turn, Local Rule 2090-1 provides in relevant part:

Rule 2090-1. Attorneys.

(A) Qualifications to Practice. Except as provided in subdivision (B) of this rule, to be qualified to practice in this court an attorney must:

(1) be a member of the Bar of the United States District Court for the Southern District of Florida under the Special Rules Governing the Admission and Practice of Attorneys in the District Court;

(2) read and remain familiar with these rules, administrative orders, the Federal Rules of Bankruptcy Procedure, the Federal Rules of Civil Procedure, the Federal Rules of Evidence, The Florida Bar's Rules of Professional Conduct, and the Bankruptcy Code; and

(3) earn at least 12 credit hours from The Florida Bar for attending or participating in CLE courses related to the subject area of "Bankruptcy Law" during each attorney's Florida Bar three-year CLE reporting requirement. This provision will not preclude an attorney from appearing who is within a three-year CLE reporting period but who has not yet earned the required 12 hours for that period.

Attorneys appearing pursuant to this subdivision must include on all papers the certification contained in Local Rule 9011-4(B).

(B) Appearances Permitted as Exceptions to Qualification Requirements. An attorney who has not fulfilled the qualifications to practice set forth in subdivision (A) above may only appear as set forth in this subdivision. Any attorney who appears pursuant to this rule shall be deemed to be familiar with, and shall be governed by, these rules, and the Rules of Professional Conduct and other ethical limitations or requirements governing the professional behavior of members of The Florida Bar.

(1) Appearances in Limited Instances. [Inapplicable here].

(2) Pro Hac Vice Appearances. Any attorney who is a member in good standing of the bar of any state or territory or insular possession of the United States, but is not admitted to practice in the United States District Court for the Southern District of Florida and qualified to practice before this court may, upon the filing and this court's approval of the Local Form "Motion to Appear Pro Hac Vice" and proposed Local Form "Order Admitted Attorney Pro Hac Vice", be permitted to appear and participate in a particular case or proceeding. The motion shall designate an attorney who is qualified to practice in this court and who maintains an office in this district for the practice of law with whom the court and opposing counsel may readily communicate regarding the conduct of the case or proceeding and upon whom papers shall be served. The motion must be accompanied by a written statement of the local attorney who consented to the designation, and the name, address and telephone number of the named designee. The motion shall (a) indicate all bars or courts to which the attorney is admitted; (b) indicate all bars or courts, if any, from which the visiting attorney has been disbarred, suspended or prohibited from appearing in front of and the dates of the foregoing; and (c) certify that the visiting attorney is familiar with and shall be governed by these rules, the Rules of Professional Conduct and all other requirements governing the professional behavior of members of The Florida Bar. Visiting attorneys appearing under this subdivision shall include on all papers filed with the court the certification contained in Local Rule 9011-4(B)(2). Upon written motion and for good cause shown, the court may waive or modify the requirements of designation of qualified local counsel.

In light of these requirements contained in the Local Rules, it was surprising to me that the Emergency Motion contained neither of the alternative certifications mandated by Local Rule 9011-4(A) or Local Rule 9011-4(B)(2). When I raised the absence of either certification with Ms. Gwynn, she asserted — falsely — that she was representing herself and appearing before me pro se. As noted in footnote 1 above, Ms. Gwynn individually is not a creditor of these Debtors. Proof of Claim 18-1 was filed by Gwynn, P.A., and both the proof of claim form and the underlying contract on which it is based so indicate.

Local Rule 9010-1(B)(1) prohibits corporations from appearing in proceedings in this Court except in limited circumstances. The Rule provides:

(1) Corporations and Other Business Entities. A corporation, partnership, trust, or other business entity cannot appear or act on its own behalf without counsel in a case or proceeding, except to file a request for service of notices (pursuant to Bankruptcy Rule 2002), a proof of claim, a response to an objection to its claim, or a ballot, or to attend and inquire at the meeting of creditors held under 11 U.S.C. § 341.

It is clear that the Emergency Motion did not fall within any of the exceptions to Local Rule 9010-1(B)(1). Thus, under the Local Rules, Gwynn, P.A. could only appear by an attorney authorized to practice in this Court under Local Rule 2090-1.

Local Rule 9010-1(B)(1) is completely consistent with the very long-standing rule that corporations and other artificial entities can act only through their agents, cannot appear pro se, and must be represented by counsel. Commercial & Railroad Bank of Vicksburg v. Slocomb, 39 U.S. (14 Pet.) 60, 10 L.Ed. 354 (1840); Osborn v. Bank of United States, 22 U.S. (9 Wheat.) 738, 6 L.Ed. 204 (1824); Palazzo v. Gulf Oil Corporation, 764 F.2d 1381, 1385-86 (11th Cir.1985); In re K.M.A., Inc., 652 F.2d 398 (5th Cir. Unit B 1981); In re Las Colinas Development Corp., 585 F.2d 7 (1st Cir.1978). There is simply no question that a corporation cannot be represented by someone who is not an authorized attorney, even if that person is the president and sole shareholder of the...