Marshall v. Marshall (In re Marshall)

 

IN THE MATTER OF:

J. HOWARD MARSHALL, III and

ILENE O. MARSHALL,

Debtors,

ELAINE T. MARSHALL, as Successor

Trustee of the BETTYE B. MARSHALL

Living Trust, Trustee of the J.

HOWARD MARSHALL, II Marital

Trust Number Two, and Trustee of

the E. PIERCE MARSHALL Family

Trust Created Under BETTYE B.

MARSHALL Living Trust Indenture

Dated October 30, 1990,

Appellant,

v.

J. HOWARD MARSHALL, III and

ILENE O. MARSHALL,

Appellees.

 

No. 09-55573

D.C. No. 8:03-cv-01354-DOC

United States Court of Appeals

Ninth Circuit

Filed June 28, 2013

 

OPINION

 

Appeal from the United States District Court

for the Central District of California

 

David O. Carter, District Judge, Presiding

 

Argued and Submitted

October 11, 2012--Pasadena, California

 

Before: David M. Ebel,^*

Kim McLane Wardlaw, and

Jacqueline H. Nguyen,

Circuit Judges.

 

Opinion by Judge Nguyen

 

COUNSEL

 

G. Eric Brunstad, Jr. (argued), Matthew Joseph Delude, and Collin O?Connor Udell, Dechert LLP, Hartford, Connecticut; Jeffrey W. Chambers, Ware, Snow, Fogel & Jackson, LLP, Houston, Texas, for Appellant.

 

David L. Neale (argued) and Michelle Sharoni Grimberg, Levene, Neale, Bender, Yoo & Brill LLP, Los Angeles, California; Anne Wells, FutterWells, PC, Santa Monica, California, for Appellees.

 

OPINION

 

NGUYEN, Circuit Judge:

 

     This case marks the third time we have been asked to intervene in the infamous feud over the estate of the late Texas oil magnate and billionaire J. Howard Marshall, II (?J. Howard?). J. Howard died in 1995, leaving nearly all his assets to his son, E. Pierce Marshall (?Pierce?), but excluding his young wife, Vickie Lynn Marshall, also known as Anna Nicole Smith (?Vickie?), and his other son, J. Howard Marshall, III (?Howard?), from receiving any part of his fortune. The ensuing controversy, pitting wife against son and brothers against each other, has defied resolution for nearly two decades, and has survived almost all of its original players.

 

     After J. Howard died, Vickie and Howard each unsuccessfully challenged his will in Texas probate court. In addition to losing the will contest, Howard suffered a multimillion dollar judgment after Pierce successfully counterclaimed against him on the basis of fraud. Following this loss, Howard and his wife, Ilene, filed for Chapter 11 bankruptcy in the Central District of California. Their case was assigned to United States Bankruptcy Judge Samuel Bufford, who had previously presided over Vickie?s Chapter 11 bankruptcy case.¹

     Pierce moved for random reassignment or recusal of Judge Bufford, objected to Howard and Ilene?s proposed Chapter 11 Plan, and moved to dismiss the bankruptcy action. Judge Bufford published three separate opinions: (1) denying Pierce?s motion for reassignment or recusal; (2) confirming the Plan and denying Pierce?s motion to dismiss with respect to his constitutional arguments; and (3) confirming the Plan and denying Pierce?s motion to dismiss with respect to his statutory arguments. Pierce appealed to the district court, which affirmed the bankruptcy court?s decisions in all respects on March 18, 2009.

     Appellant Elaine T. Marshall (?Elaine?),² Pierce?s widow, now appeals the district court?s decision, contending that the district court erred in affirming the bankruptcy court?s orders because: (1) there was no basis for nonrandom assignment of the case to Judge Bufford, and alternatively, Judge Bufford should have recused himself on account of apparent bias; (2) Howard and Ilene?s Chapter 11 petition and proposed Plan were unconstitutional; and (3) Howard and Ilene?s Chapter 11 petition and proposed Plan were filed in bad faith. We have jurisdiction pursuant to 28 U.S.C. § 158(d), and we affirm.

 

BACKGROUND

 

I.

 

THE VICKIE LYNN MARSHALL CASE

 

     In the Texas probate court, Vickie claimed that she was entitled to a portion of J. Howard?s estate, and that Pierce had tortiously interfered with her expectancy of a gift from her husband. While the probate case was pending, she filed for bankruptcy in California, and the matter was assigned to Judge Bufford. Pierce filed a proof of claim, arguing that he held a defamation claim against Vickie that was not subject to her bankruptcy discharge. Vickie counterclaimed, contending, as she had in probate court, that Pierce tortiously interfered with her expectancy of a gift from J. Howard. Judge Bufford dismissed Pierce?s proof of claim against Vickie, and proceeded to consider Vickie?s counterclaim against Pierce. Over the course of the bankruptcy proceedings, Judge Bufford determined that Pierce had engaged in various discovery abuses and issued both monetary and nonmonetary sanctions against him.³

     In September 1998, Pierce moved to withdraw the case from bankruptcy court. District Judge William D. Keller withdrew the bankruptcy reference in part⁴ in October 1998, after which Judge Bufford stated his intent to submit a memorandum to ?assist [Judge Keller] in his review of the matter.? On February 1, 1999, Judge Keller stayed Judge Bufford?s prior sanctions orders. The next day, Judge Bufford declared the stay invalid and issued terminating sanctions against Pierce on Vickie?s tortious interference counterclaim as a result of Pierce?s purported discovery abuses. On March 9, 1999, Judge Keller vacated and remanded Judge Bufford?s initial sanctions order, citing a lack of evidence. Then, after acknowledging receipt of Judge Bufford?s memorandum, Judge Keller vacated his order withdrawing the bankruptcy reference.⁵ On May 20, 1999, Judge Bufford entered a final sanctions order, once again deeming many of Vickie?s allegations established as a sanction against Pierce.

     Judge Bufford then held a fiveday hearing on Vickie?s counterclaim. On the first day, Judge Bufford conducted an unusual press conference of sorts on the record, where he responded to reporters? questions, noted that the case was related to the Texas probate litigation, and explained the procedures by which reporters could obtain public records or court filings. Approximately eleven months later, Judge Bufford entered judgment in Vickie?s favor and against Pierce in the amount of $449,000,000, with an additional punitive damages award of $25,000,000. See Marshall v. Marshall (In re Marshall), 257 B.R. 35, 39, 40 (Bankr. C.D. Cal. 2000).⁶ Judge Bufford acknowledged that the damages were ?mainly based? on facts that were presumed to be true by virtue of his final sanctions order.⁷

     Several months later, the Texas probate court rendered judgment in favor of Pierce in the probate case, ordering Vickie to pay Pierce?s attorneys? fees in the amount of $541,000. The Probate Court later modified its order to specify that the fee award arose solely out of conduct that occurred after Vickie?s bankruptcy discharge. However, Judge Bufford overturned the probate court?s fee award, finding that it violated Vickie?s bankruptcy discharge and was barred by judicial estoppel. The district court affirmed Judge Bufford?s decision, but we reversed and remanded, finding that the attorneys? fees award did not violate Vickie?s bankruptcy discharge, as it was based solely on conduct that occurred after the discharge. Marshall v. Marshall (In re Marshall), 119 F. App?x 136 (9th Cir. 2004).

 

II.

 

THE J. HOWARD MARSHALL III CASE

 

     Howard also challenged J. Howard?s estate plan, arguing that, inter alia, Pierce had exerted undue influence over their father for years, the estate plan had been formulated under duress, and the will was invalid and unenforceable. In his capacity as trustee of the Trusts, Pierce filed a fraud counterclaim against Howard.⁸ After a lengthy trial, the jury found in favor of Pierce, and the probate court entered a Second Modified Final Judgment against Howard (?the Fraud Judgment?) on December 7, 2001. At the time Howard and Ilene filed their bankruptcy petition, the Fraud Judgment exceeded twelve million dollars.⁹

     Howard filed an appeal in the Texas courts, and on January 31, 2002, moved to stay execution of the Fraud Judgment, or in the alternative, to lower the amount of security for a supersedeas bond. As part of that motion, Howard submitted a sworn affidavit attesting to a total net worth of $22,413,220. Elaine contends that the parties engaged in numerous efforts to negotiate a potential settlement, which eventually resulted in an agreement to stay enforcement in return for a $10.4 million bond, but that Howard ultimately reneged on the agreement when he was unable to finance the bond. Pierce moved to enforce the Fraud Judgment, and at a July 18, 2002, hearing, the probate court suggested that Howard voluntarily move assets to Texas to satisfy the judgment. The probate court scheduled another hearing for July 25, 2002 to consider whether it would order Howard to transfer assets to Texas.

     On July 23, 2002, Howard and Ilene (collectively, ?the Debtors?) filed a Chapter 11 bankruptcy petition in the Central District of California. In connection with the petition, they filed a Statement of Related Cases and an addendum noting that Vickie?s bankruptcy case involved a similar factual background and many of the same principal parties as their case. The Clerk assigned Howard and Ilene?s case to Judge Bufford.

 

III.

 

E. PIERCE MARSHALL?S MOTION FOR RECUSAL AND

REASSIGNMENT

 

     Several months later, Pierce moved for random reassignment of the case, or alternatively, recusal of Judge Bufford, pursuant to 28 U.S.C. § 455(a) and the Due Process Clause. Judge Bufford denied Pierce?s motion at an October 29, 2002 hearing. He subsequently issued an Order to Show Cause (?OSC?) why the motion should not be denied on the basis of standing because Pierce had not filed a proof of claim in Howard and Ilene?s case. After a hearing on the OSC, Judge Bufford issued a March 27, 2003 amended written opinion in which he assumed that Pierce had standing  (because the time for filing a proof of claim had not elapsed) and again denied the recusal motion. Pierce never filed a proof of claim in the Debtors? bankruptcy case.¹⁰

 

IV.

 

PIERCE?S OBJECTION TO THE CHAPTER 11 PLAN AND

MOTION TO DISMISS

 

     The Debtors? initial plan of reorganization listed total assets of $8,391,904, personal property valued at $6,084,922, and identified the Texas Fraud Judgment as a disputed unsecured debt. Howard and Ilene filed an amended plan of reorganization on April 16, 2003 (?the Plan?). This time, the Plan provided for full payment of all debts except the Fraud Judgment, which the Plan proposed should nevertheless be discharged.

     Pierce objected to the Debtors? proposed Plan on the grounds that it was unconstitutional and proposed in bad faith. Pierce argued that Howard and Ilene had initiated bankruptcy proceedings for the sole purpose of avoiding enforcement of the Fraud Judgment, that the Debtors misrepresented the value of assets and liabilities in their amended plan, and that Howard and Ilene were solvent and could easily satisfy their financial obligations without resort to bankruptcy. Citing similar concerns, Pierce also moved to dismiss the Debtors? Chapter 11 petition on the grounds of unconstitutionality and bad faith.

     Howard and Ilene argued that they had filed their suit and proposed their Plan in good faith, based not only on their inability to pay the Fraud Judgment, but also on the threat of future litigation with Pierce and others which they claimed could cost them upwards of $100 million.

     On August 26, 2003, Judge Bufford issued a written opinion confirming the Debtors? Plan and denying Pierce?s motion to dismiss on bad faith grounds. Then, on October 9, 2003, he issued a second amended opinion rejecting Pierce?s constitutional challenge. Pierce appealed all three of Judge Bufford?s decisions to the district court, Judge David O. Carter, presiding, which affirmed on March 18, 2009.¹¹ This appeal followed.

 

DISCUSSION

 

     We review de novo a district court?s decision on appeal from a bankruptcy court. Greene v. Savage (In re Greene), 583 F.3d 614, 618 (9th Cir. 2009). As to the decision of the bankruptcy court, we apply the same standard of review applied by the district court. Id. However, we review the bankruptcy court decision independently and without deference to the district court?s decision. Strand v. Neary (In re Strand), 375 F.3d 854, 857 (9th Cir. 2004).

 

I.

 

MOTION FOR REASSIGNMENT OR RECUSAL

 

     We first address Elaine?s contention that the district court erred in affirming the bankruptcy court?s denial of her Motion for Reassignment or Recusal. We review the denial of a § 455(a) motion for recusal for abuse of discretion. United States v. Wilkerson, 208 F.3d 794, 797 (9th Cir. 2000). ?A bankruptcy court abuses its discretion if it applies the law incorrectly or if it rests its decision on a clearly erroneous finding of material fact.? Brotby v. Brotby (In re Brotby), 303 B.R. 177, 184 (B.A.P. 9th Cir. 2003). ?We examine the bankruptcy court?s conclusions of law de novo and its factual findings for clear error.? BCE W., L.P. v. Smith (In re BCE W., L.P.), 319 F.3d 1166, 1170 (9th Cir. 2003).

     ?Clear error exists only when the reviewing court is left with a definite and firm conviction that a mistake has been committed.? In re Brotby, 303 B.R. at 184. ?If two views of the evidence are possible, the trial judge?s choice between them cannot be clearly erroneous.? Lehtinen v. Lehtinen (In re Lehtinen), 332 B.R. 404, 411 (B.A.P. 9th Cir. 2005). De novo review applies to Elaine?s claim that Judge Bufford?s partiality violated due process. See In re Victoria Station Inc., 875 F.2d 1380, 1382 (9th Cir. 1989).

 

A.

 

REASSIGNMENT

 

     Pursuant to 28 U.S.C. § 137, cases are to be assigned among judges in the manner prescribed by local rules and general orders of the court. In the Central District of California, General Order 08-05 § 1.2 (2008), which applies equally to bankruptcy courts, directs the Clerk to assign cases to judges in the district randomly.¹² Gen. Order 08-05 § 1.2 (?The assignment of civil cases shall be completely at random through the Automated Case Assignment System (ACAS).?). However, where cases are related, the Clerk is directed to assign the new case to the same judge who presided over the prior case.¹³ Gen. Order 08-05 § 5.2 (2008); Bankr. C.D. Cal. Gen. Order 11-01 (2011) (formerly, Gen. Order 99-02 (1999)).

     Elaine contends that assignment of the Debtors? bankruptcy case to Judge Bufford was improper because the two cases were not related, notwithstanding the Debtors? listing of the Vickie case in their 1015-2 Statement of Related Cases. The Debtors concede, and we agree, that the Debtors? bankruptcy case is not technically related to Vickie?s case under Local Bankruptcy Rule 1015-2(a).¹⁴ However, the court has ?broad discretion? to interpret the requirements of its General Orders. United States v. DeLuca, 692 F.2d 1277, 1281 (9th Cir. 1982) (?Because general orders and local rules not only implement due process and other statutory rights but also promote efficiency, we permit the district court broad discretion in determining their requirements.?); United States v. Torbert, 496 F.2d 154, 157 (9th Cir. 1974) (noting that a general order requiring random reassignment when a case is returned to the clerk after a judge is disqualified ?is a housekeeping rule for the internal operation of the district court which has a large measure of discretion in interpreting and applying it? (internal quotation marks omitted)). While not technically ?related,? the Debtors? and Vickie?s bankruptcy cases involved convoluted facts and issues, many of which had also been heavily litigated in the Texas probate court. Assignment of the case to Judge Bufford was within the court?s discretion and was in the interests of efficiency.

     Moreover, judges are vested with ?inherent? authority to transfer cases among themselves ?for the expeditious administration of justice.? United States v. Stone, 411 F.2d 597, 598 (5th Cir. 1969) (per curiam); see also Badea v. Cox, 931 F.2d 573, 575 (9th Cir. 1991) (?District court judges have broad discretion regarding the assignment or reassignment of cases.? (internal quotation marks omitted)). Had the Debtors?case been randomly assigned, it is likely that the assigned judge would have transferred the case to Judge Bufford, given his superior knowledge of the complex factual and procedural history of the parties? dispute in the Texas probate court.

     Finally, a party has no due process right to random case assignment or to ensure the selection or avoidance of any particular judge absent a showing of bias or partiality in the proceedings. See Cruz v. Abbate, 812 F.2d 571, 574 (9th Cir. 1987) (explaining that ?a [party] has no right to any particular procedure for the selection of the judge[,]? so long as the decision is made ?in a manner free from bias or the desire to influence the outcome of the proceedings?); Torbert, 496 F.2d at 157 (holding that nonrandom assignment of a case did not violate due process, particularly because there was no showing of actual prejudice resulting from the procedural irregularity). As discussed infra Section I.B., Elaine has not established actual or apparent bias on the part of Judge Bufford, and was therefore not prejudiced by the nonrandom assignment.

 

B.

 

RECUSAL

 

     Elaine contends that Judge Bufford should have recused himself from the Debtors? bankruptcy case pursuant to 28 U.S.C. § 455. Section 455(a) requires recusal when ?a reasonable person with knowledge of all the facts would conclude that the judge?s impartiality might reasonably be questioned.? F.J. Hanshaw Enters., Inc., v. Emerald River Dev., Inc., 244 F.3d 1128, 1144 (9th Cir. 2001).

     First, Elaine argues that Judge Bufford failed to apply the correct legal standard in denying recusal. During a hearing on the recusal motion, Judge Bufford stated that the ?[a]ppearance of impropriety is not a basis for recusal.? This was undeniably a misstatement of the law. See Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 860 (1988) (?The goal of section 455(a) is to avoid even the appearance of partiality.? (quoting Health Servs. Acquisition Corp. v. Liljeberg, 796 F.3d 796, 802 (5th Cir. 1986))). Proof of actual bias is not required under § 455(a). Instead, bias should ?be evaluated on an objective basis, so that what matters is not the reality of bias or prejudice but its appearance.? Liteky v. United States, 510 U.S. 540, 548 (1994). ?It is well established that the recusal inquiry must be made from the perspective of a reasonable observer who is informed of all surrounding facts and circumstances.? Cheney v. U.S. Dist. Ct., 541 U.S. 913, 924 (2004) (emphasis and internal quotation marks omitted).

     Nevertheless, Judge Bufford articulated the correct standard in his subsequent written opinion and specified that his denial of recusal was based ?on the grounds stated in the court?s decision of this date.? Thus, we find that Judge Bufford ultimately applied the correct legal standard. The salient inquiry, then, is whether Judge Bufford abused his discretion in concluding that his conduct in the Vickie case did not give rise to an appearance of bias against Pierce that warranted his recusal from the Debtors? proceedings.

     Elaine contends that Judge Bufford?s impartiality may be reasonably questioned in light of his handling of Vickie?s case. Specifically, she claims that Judge Bufford?s rulings demonstrated partiality towards Vickie, that his issuance of severe discovery sanctions and ?critical? statements against Pierce and Pierce?s attorney throughout the proceedings indicated prejudice against Pierce, and that his communications with the press and the district court evinced an uncommon interest in the case.

     As a preliminary matter, we note that Elaine?s examples of bias emanate exclusively from Judge Bufford?s rulings and conduct during Vickie?s case. Insofar as Elaine points to Judge Bufford?s judicial rulings as evidence of bias, such ?rulings alone almost never constitute a valid basis for a bias or partiality motion.? Liteky, 510 U.S. at 555. ?Almost invariably, they are proper grounds for appeal, not for recusal.? Id. Moreover, ?the judge?s conduct during the proceedings should not, except in the ?rarest of circumstances? form the sole basis for recusal under § 455(a).? United States v. Holland, 519 F.3d 909, 913?14 (9th Cir. 2008) (quoting Liteky, 510 U.S. at 555). ?[O]pinions 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 deepseated favoritism or antagonism that would make fair  judgment impossible.? Liteky, 510 U.S. at 555. We find that Judge Bufford?s conduct in Vickie?s case does not satisfy this standard.

     For example, Elaine contends that Judge Bufford advocated for Vickie by ruling in her favor on arguments neither raised nor briefed by the parties. While Judge Bufford may have erred in basing certain rulings on arguments not raised by the parties and without giving the parties an opportunity to respond, doing so several times in the course of lengthy and complicated litigation does not reasonably give rise to an inference that he is advocating for one side or another. Further, Elaine?s argument suffers from the fact that neither Vickie nor Pierce were parties to Howard and Ilene?s bankruptcy case.¹⁵ Thus, Judge Bufford?s purported partiality toward Vickie (or antagonism towards Pierce), even if true, does not reasonably give rise to an appearance of bias in Howard and Ilene?s case.

     Elaine also argues that, after initially denying Pierce?s recusal motion, Judge Bufford instigated an improper sua sponte investigation to find additional grounds for denying the motion. Judge Bufford issued an OSC why the motion should not be denied for lack of standing, in light of Pierce?s failure to file a proof of claim. We find nothing unusual or improper in the bankruptcy court?s effort to determine whether a party has standing to litigate; in fact, such determination is required. See B.C. v. Plumas Unified Sch. Dist., 192 F.3d 1260, 1264 (9th Cir. 1999) (?[F]ederal courts are required sua sponte to examine jurisdictional issues such as standing.?).

     As further evidence of bias, Elaine points to Judge Bufford?s decisions declaring the district court?s stay of his initial discovery sanctions ineffective and reimposing virtually the same sanctions in his Final Sanctions Order. Presumably, Elaine is insinuating that Judge Bufford openly defied the district court in order to ensure that Pierce would remain subject to his virtually insurmountable terminating sanctions. However, not only are judicial rulings rarely a basis for recusal, Liteky, 510 U.S. at 555, these particular rulings cannot reasonably be seen as contravening the district court?s direction. The district court subsequently adopted Judge Bufford?s Final Sanctions Order, notwithstanding its similarity to the initial vacated order, and even increased the damages award against Pierce. In re Marshall, 275 B.R. 5, 58 (C.D. Cal. 2002), rev?d on other grounds, 392 F.3d 1118 (9th Cir. 2004), rev?d and remanded, sub nom. Marshall v. Marshall, 126 S. Ct. 1735 (2006), rev?d on remand, 600 F.3d 1037 (9th Cir. 2010), aff?d, sub nom. Stern v. Marshall, 131 S. Ct. 2594 (2011).

     With respect to the sanctions themselves, the district court?s decision to increase Judge Bufford?s sanctions significantly weakens Elaine?s contention that the heavy sanctions create an appearance of bias on Judge Bufford?s part. See Offutt v. United States, 348 U.S. 11, 15?16 (1954) (holding that heavy sanctions, which were later reduced by a higher court, constituted ?compelling proof? of bias). Moreover, a reasonable person could find, as the district court did, that Judge Bufford?s decision to sanction Pierce was based on his perception of Pierce?s bad faith. See United States v. Yagman, 796 F.2d 1165, 1181?82 (9th Cir. 1986) (?When [a judge imposes sanctions], the judge will obviously be dissatisfied with some aspect of the offending attorney?s conduct[,]? but ?[w]ithout more, this natural responsive attitude does not provide reasonable grounds to question the judge?s impartiality[.]?). Judge Bufford found that Pierce committed numerous discovery abuses throughout the Vickie case. His determination was affirmed by the district court, and Pierce apparently elected not to raise the issue again on appeal of that decision to this court.¹⁶ See In re Marshall, 392 F.3d 1118 (9th Cir. 2004). The record does not indicate that Judge Bufford?s findings of sanctionable discovery abuse were erroneous. Thus, neither the existence nor the scope of the sanctions suggest that Judge Bufford harbored deepseated antagonism against Pierce.

     Similarly, Judge Bufford?s comments towards Pierce and his attorney during Vickie?s case might also be reasonably seen as the product of Judge Bufford?s frustration with Pierce?s behavior throughout the litigation. See F.J. Hanshaw Enters., Inc., 244 F.3d at 1144?45 (?[P]redispositions developed during the course of a trial will [rarely] suffice.? (citing Liteky, 510 U.S. at 544?45)); United States v. Conforte, 624 F.2d 869, 881 (9th Cir. 1980) (explaining that recusal under § 455(a) requires a finding of ?an animus more active and deeprooted than an attitude of disapproval toward certain persons because of their known conduct?). For example, Judge Bufford referred to Pierce as ?a Defendant with extremely dirty hands,? told Pierce?s counsel to bring certain documents to court or ?bring [his] toothbrush,? to bring his ?checkbook? to a hearing, and that he had ?substantial experience with the way [Pierce?s] side has handled cases.? These statements, while potentially indicative of personal bias, are not serious enough to overcome the high standard set forth in Liteky:

 

[J]udicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.

 

510 U.S. at 555 (emphasis added).

 

     Elaine also contends that Judge Bufford?s communications with the press gave rise to an appearance of partiality. Judge Bufford primarily took questions from reporters about the procedures for obtaining court documents and records. These procedural comments, themselves, do not indicate partiality and are not ethically proscribed. See Code of Judicial Conduct Canon 3(A)(6) (?This proscription [on judicial speech] does not extend to public statements made in the course of the judge?s official duties, to the explanation of court procedures, or to a scholarly presentation made for purposes of legal education.?); see also United States v. Microsoft Corp., 253 F.3d 34, 112 (D.C. Cir. 2001) (distinguishing between ?purely procedural matters,? which the district judge may properly discuss in public, and the judge?s ?views on factual and legal matters at the heart of the case,? upon which the judge may not publicly comment).

     However, the fact that Judge Bufford initiated the ?press conference? at all is highly unusual and of some concern. See In re Boston?s Children First, 244 F.3d 164, 170 (1st Cir. 2001) (noting that, in highly publicized cases, ?even ambiguous comments may create the appearance of impropriety? and ?[i]n fact, the very rarity of such public statements, and the ease with which they may be avoided, make it more likely that a reasonable person will interpret such statements as evidence of bias?); see also United States v. Cooley, 1 F.3d 985, 995 (10th Cir. 1993) (holding that a judge?s deliberate choice to express ?strong views? on a pending case in a media forum ?conveyed an uncommon interest . . . in the subject matter? and ?created the appearance that the judge had become an active participant in [the litigation]?).

     Furthermore, in speaking with the press, Judge Bufford mentioned the interplay between the Texas probate case and Vickie?s bankruptcy case, explaining that there were some overlapping issues that might be resolved in either venue. Given that the bankruptcy court?s jurisdiction over Vickie?s counterclaim was in dispute, such statements might be viewed as commentary on the merits of the case. See In re Boston?s Children First, 244 F.3d at 170 (concluding that a judge?s comment that one case was more ?complex? than another could be seen as ?a preview of a ruling on the merits of petitioner?s motion for class certification? and called the judge?s impartiality into question). While there is nothing wrong with a court providing procedural information to the press in a highly publicized case, an appearance of impropriety may be created where a judge voluntarily takes on that role, especially in open court during the course of the proceedings.

     Still, notwithstanding our concerns, Judge Bufford?s statements to the press are in and of themselves insufficient to warrant recusal. The lion?s share of his comments dealt with courtroom procedures and policies, which is understandable given the strong media interest in Vickie?s case. That several of his comments might be construed as a vague reflection on a disputed jurisdictional issue does not, alone, compel a finding of apparent bias.

     In addition, Elaine makes much of a private communication Judge Bufford shared with Judge Keller regarding Pierce?s motion to withdraw the bankruptcy reference. She argues that, by sending Judge Keller a ?secret memorandum,? Judge Bufford injected himself into the case under the guise of ?assisting? Judge Keller?s decision on whether to withdraw the reference, evincing an ?uncommon interest and degree of personal involvement? in Vickie?s case. Cooley, 1 F.3d at 995. However, context matters, and the record here does not support that conclusion.

     In October 1998, Judge Keller issued a minute order withdrawing the bankruptcy reference in part. The minute order indicated that the bankruptcy judge would determine which discovery matters were necessary to ?core? bankruptcy proceedings and should therefore remain before the bankruptcy court. At a January 1999 hearing, Howard and Ilene?s counsel reminded Judge Bufford that the bankruptcy court ?was going to be coming out with an order with respect to th[e] Court?s belief as to the jurisdictional responsibilities . . . which Judge Keller[?s] . . . minute order indicated he was awaiting.? Judge Bufford clarified that his response to Judge Keller would ?not take the form of an order[,]? but would be ?a memorandum to Judge Keller to assist in his review of the matter.? Judge Bufford then noted that the memo would be ?an internal document not available to the parties.? After receiving the memo, Judge Keller noted that ?as far as the memorandum that [Judge Bufford] shared with me, he does have authority to try everything but the MPI case, as far as I can tell.? Judge Keller acknowledged that he was ?not as deeply into it from a bankruptcy standpoint as [Judge Bufford was],? and that Judge Bufford was the one who ?kn[ew] what[ was] going on.?

     Although we are not privy to the contents of Judge Bufford?s communication, this context strongly suggests that Judge Bufford?s memo dealt with legitimate jurisdictional issues, and that Judge Bufford was merely responding to a request made by Judge Keller. At any rate, the record does not suggest that Judge Bufford was actively trying to retain jurisdiction over Vickie?s case because of antagonism or favoritism towards the parties, as opposed to, for example, his understandable reticence to foist a complex case on the district court unless it was necessary to do so.

     Elaine?s examples of bias are almost exclusively based on Judge Bufford?s conduct during Vickie?s bankruptcy proceedings. Taken together, Judge Bufford?s actions are not indicative of a ?deepseated favoritism or antagonism that would make fair judgment impossible.? Liteky, 510 U.S. at  As such, this case is not one of the ?rarest of circumstances? where judicial conduct in prior proceedings should form the sole basis for recusal under § 455(a). Holland, 519 F.3d at 914. Judge Bufford?s determination-- that under all of the circumstances a reasonable person would not question his impartiality--does not reflect an incorrect application of the law and is not based on clearly erroneous factual findings. Therefore, we cannot say that Judge Bufford abused his discretion in denying Elaine?s motion to recuse.¹⁷

 

II.

 

CONSTITUTIONAL ISSUES

 

     For the reasons outlined in the second amended opinion of the bankruptcy court filed on October 9, 2003, in the Central District of California, we conclude that the district court correctly affirmed the bankruptcy court?s confirmation of Howard and Ilene?s Chapter 11 plan and denial of Elaine?s motion to dismiss with respect to the constitutional issues raised in the motion. See In re Marshall, 300 B.R. 507 (Bankr. C.D. Cal. 2003). Therefore, we adopt the bankruptcy court?s opinion on Elaine?s constitutional claims, and affirm the district court?s decision as to the issues addressed therein. See Appendix A.

 

III.

 

NONCONSTITUTIONAL ISSUES

 

     Elaine contends that the bankruptcy court erred in confirming the Debtors? Chapter 11 Plan because the Plan does not satisfy the ?Best Interests of Creditors? test and was proposed in bad faith. Elaine also argues that the bankruptcy case should have been dismissed because it was filed in bad faith.

     We review the bankruptcy court?s decision to confirm the Debtors? Chapter 11 Plan for abuse of discretion. In re Brotby, 303 B.R. at 184. The bankruptcy court?s ruling on a motion to dismiss for bad faith is also subject to review for abuse of discretion. Stolrow?s Inc. v. Stolrow?s Inc. (In re Stolrow?s, Inc.), 84 B.R. 167, 170 (B.A.P. 9th Cir. 1988). In both cases, ?[t]he question of good faith is factual? and we review for clear error. Id.; Marsch v. Marsch (In re Marsch), 36 F.3d 825, 828 (9th Cir. 1994) (per curiam).

 

A.

 

PLAN CONFIRMATION--BEST INTERESTS OF CREDITORS TEST

 

The socalled ?Best Interest of Creditors? test requires that:

 

[w]ith respect to each impaired class of claims or interests--

 

(A) each holder of a claim or interest of such class--

 

(i) has accepted the plan; or

 

(ii) will receive or retain under the plan on account of such claim or interest property of a value, as of the effective date of the plan, that is not less than the amount that such holder would so receive or retain if the debtor were liquidated under chapter 7 of this title on such date.

 

11 U.S.C. § 1129(a)(7)(A).

 

     Because the Plan purported to discharge the Texas Fraud Judgment without any payment, Elaine contends that the Plan failed to ensure that Pierce would receive at least as much as he would have under Chapter 7 liquidation. However, Pierce never filed a proof of claim in the Debtors? Chapter 11 proceedings, and the deadline for doing so had passed by the time the bankruptcy court confirmed the Debtors? Chapter 11 Plan. Thus, § 1129(a)(7)(A) did not apply to Pierce or to the Fraud Judgment.

     That Pierce would not have been foreclosed from filing a proof of claim under Chapter 7 is of no moment. See 11 U.S.C. § 726(a)(2) (permitting latefiled claims in Chapter 7 cases). We will not extend the ?Best Interests of Creditors? test to individuals who are only hypothetically creditors, simply because the statute invokes a hypothetical Chapter 7 liquidation as a point of reference. Were we to go that far, a Chapter 11 Plan would not be confirmable unless it provided for all individuals who could potentially be entitled to distribution. Such a result would be untenable in practice and would eviscerate the proof of claim filing deadline in Chapter 11.

 

B.

 

PLAN CONFIRMATION--BAD FAITH

 

     Under 11 U.S.C. § 1129(a)(3), a bankruptcy plan must be ?proposed in good faith and not by any means forbidden by law.? ?A plan is proposed in good faith where it achieves a result consistent with the objectives and purposes of the Code.? Sylmar Plaza, L.P. v. Sylmar Plaza L.P. (In re Sylmar Plaza, L.P.), 314 F.3d 1070, 1074 (9th Cir. 2002).

     Elaine argues that the Plan was not proposed in good faith because the Debtors (1) were actually solvent; (2) misrepresented the true value of their assets; and (3) filed the petition with the primary purpose of avoiding payment of the Texas Fraud Judgment.

     We agree that the Debtors? claim of potentially costly future litigation-- including a $5 million Louisiana lawsuit in which Howard was a named defendant and Pierce?s separate threat of a $100 million lawsuit--was perhaps too speculative to support a finding that they were ?insolvent.? However, ?insolvency is not a prerequisite to a finding of good faith under § 1129(a).? Id. at 1074?75. The bankruptcy court reasonably concluded that the Debtors? technical solvency did not bespeak bad faith given that they faced the threat of future litigation, not to mention their very concrete obligation to satisfy the Texas Fraud Judgment, amounting to nearly $12 million.

 

     With regard to the Debtors? purported misstatements on their asset schedule, the chief example cited by Elaine was the listing of the value of the Eleanor Stevens Gift Trust Debenture as ?contingent,? despite its prior valuation at upwards of $6 million.¹⁸ However, the Debtors? identification and description of the debenture and other stock holdings were more than sufficient to put creditors on notice of the assets so they could investigate further. See, e.g., Cusano v. Klein, 264 F.3d 936, 946?47 (9th Cir. 2001) (holding that, while a debtors must ?be as particular as is reasonable under the circumstances[,]? there are ?no brightline rules for how much itemization and specificity is required,? and where the value of assets are unknown, ?a simple statement to that effect will suffice? (citations and internal quotation marks omitted)); In re Weingarten, No. 05- 01091, 2013 WL 309076, at *12 (Bankr. C. D. Cal. Jan. 25, 2013) (?By listing the asset, even one with an unknown value, [the debtor] has put parties on notice of these assets and they can investigate further.?). Further, with regard to the Debtors? failure to list certain assets, the bankruptcy court did not clearly err in finding that the omitted assets---200 shares of stock, worth roughly $175?180 per share, and Citibank accounts containing $186,458--were de minimis and unproven, respectively.

     Finally, Elaine argues that the Plan was proposed in bad faith because the Debtors? primary purpose was to avoid paying the Texas Fraud Judgment. However, the only reason consummation of the Debtors? Plan would frustrate Elaine?s attempt to collect on the Texas Fraud Judgment was because Pierce never filed a proof of claim. Significantly, the Debtors initially included the Fraud Judgment in their Plan, and amended to provide for discharge of the judgment only after Pierce failed to file a proof of claim. We find no reason to conclude that the Debtors knew Pierce would not file a proof of claim and we see nothing that prevented him from doing so.

     In sum, the bankruptcy court?s finding that the Debtors? Plan was proposed in good faith was not clearly erroneous under all the circumstances. Therefore, confirmation of the Debtors? Plan was not an abuse of discretion.

 

C.

 

MOTION TO DISMISS--BAD FAITH

 

     Under 11 U.S.C. § 1112(b), a Chapter 11 bankruptcy case may be dismissed ?for cause.? ?Although section 1112(b) does not explicitly require that cases be filed in ?good faith,? courts have overwhelmingly held that a lack of good faith in filing a Chapter 11 petition establishes cause for dismissal.? In re Marsch, 36 F.3d at 828. The good faith requirement does not depend on a debtor?s subjective intent, but rather ?encompasses several, distinct equitable limitations that courts have placed on Chapter 11 filings.? Id. Generally, a plan is not filed in good faith if it represents an attempt ?to unreasonably deter and harass creditors? and to ?achieve objectives outside the legitimate scope of the bankruptcy laws.? Id.

     The question of a debtor?s good faith ?depends on an amalgam of factors and not upon a specific fact.? Id. (quoting Idaho Dep?t of Lands v. Arnold (In re Arnold), 806 F.2d 937, 939 (9th Cir. 1986)). ?[T]he courts may consider any factors which evidence ?an intent to abuse the judicial process and the purposes of the reorganization provisions.?? Phoenix Piccadilly, Ltd. v. Life Ins. Co. of Va. (In re Phoenix Piccadilly, Ltd.), 849 F.2d 1393, 1394 (11th Cir. 1988) (quoting Albany Partners, Ltd. v. Westbrook (In re Albany Partners, Ltd.), 749 F.2d 670, 674 (11th Cir. 1984)). A ?[d]ebtor bears the burden of proving that the petition was filed in good faith.? Leavitt v. Soto (In re Leavitt), 209 B.R. 935, 940 (B.A.P. 9th Cir. 1997) (citing In re Powers, 135 B.R. 980, 997 (Bankr. C.D. Cal. 1991)).

     Elaine argues that the petition was filed in bad faith and should have been dismissed. First, Elaine contends that the timing of the filing, within days of the Texas court?s suggestion that Howard transfer assets to satisfy the Fraud Judgment, indicated bad faith. We agree that the timing of Howard and Ilene?s filing may be an indication that the Debtors initiated bankruptcy proceedings for the purpose of avoiding or delaying payment of the judgment. See In re Leavitt, 171 F.3d at 1225 (finding that the timing of debtor?s bankruptcy petition, filed within two weeks of judgment, demonstrated that the debtor?s primary motive was avoidance of the judgment). However, because the Debtors specifically included the Texas Fraud Judgment in their initial Plan, it appears just as likely that they filed their petition in order to ?effect a speedy, efficient reorganization,? and not ?to unreasonably deter and harass creditors.? In re Marsch, 36 F.3d at 828.

     In addition, Elaine argues that the Debtors? sole purpose in filing the petition was to avoid filing a supersedeas bond pending appeal of the Texas Fraud Judgment. In Marsch, we held that a petition was correctly dismissed for bad faith where it ?was filed solely to delay collection of the judgment and avoid posting an appeal bond, even though debtor had the ability to satisfy the judgment with nonbusiness assets.? Id. at 831; see also In re Boynton, 184 B.R. 580, 581 (Bankr. S.D. Cal. 1995) (finding bad faith where petition was filed in order to evade a tax judgment despite the fact that debtors had ?significant assets? and ?may have been able? to post a bond).

     Here, unlike in Marsch and Boynton, the record suggests that Howard and Ilene?s liquid assets were probably insufficient to satisfy the judgment or cover the cost of a supersedeas bond. The bankruptcy court found that the Fraud Judgment amounted to over $12 million plus interest, that the ?custom? in Texas was to set appeal bonds at 150% of the judgment, and that Howard did not have sufficient liquid assets to post a bond of that size. Although the record does not invariably indicate that the Debtors could not finance a supersedeas bond, we cannot say that the bankruptcy court?s determination was clearly erroneous. Moreover, notwithstanding their ability to finance a bond, Howard and Ilene?s inclusion of the Fraud Judgment in their initial Plan suggests that they filed their bankruptcy petition for the proper purpose of reorganization, not as a mere ploy to avoid posting the bond.

     Finally, Elaine contends that the absence of other unsecured creditors in the Plan shows that the Debtors filed their petition in order to avoid having to obtain a supersedeas bond or pay the Texas Fraud Judgment. See, e.g., Chinichian v. Campalongo (In re Chinichian), 784 F.2d 1440, 1445 (9th Cir. 1986); Little Creek Dev. Co. v. Common Wealth Mortg. Corp. (In the Matter of Little Creek), 779 F.2d 1068, 1073  (5th Cir. 1986); In re Silberkraus, 253 B.R. 890, 904 (Bankr. C.D. Cal. 2000). Indeed, Howard and Ilene paid off at least $89,000 in unsecured debts the day before filing, and the Texas Fraud Judgment made up roughly 82% of the Debtors? total scheduled liabilities.

     However, notwithstanding their minimal unsecured debt, the Debtors? decision to file for bankruptcy does not indicate bad faith in light of the size of the Texas Fraud Judgment and the potential cost of obtaining a bond. As the bankruptcy court noted, all debtors file for bankruptcy in order to delay creditor action. Thus, although the Debtors? main motivation may have been to ameliorate the burden of the judgment, given that the Plan proposed payment of the judgment, we cannot say that they filed a Chapter 11 petition in order to avoid paying it altogether, or to unduly deter or harass creditors.¹⁹

     Moreover, we agree with the bankruptcy court that ?[p]erhaps the most compelling grounds for denying a motion to dismiss grounded on bad faith is the determination that a reorganization plan qualifies for confirmation.? This is because ?[a] debtor?s showing that a plan of reorganization is ready for confirmation essentially refutes a contention that the case is filed or prosecuted in bad faith.? Id. The bankruptcy court properly considered the viability of the Debtors? proposed Plan as weighing heavily against dismissal.

     Viewing the amalgam of factors together, it is not ?obvious that [the Debtors are] attempting unreasonably to deter and harass creditors[.]? In re Thirtieth Place, Inc., 30 B.R 503, 505 (9th Cir. B.A.P. 1983) (quoting Matter of Levinsky, 23 B.R. 210, 218 (N.Y. Bankr. 1982)). Accordingly, the bankruptcy court?s finding of good faith was not clearly erroneous, and it did not abuse its discretion in denying the motion to dismiss.

     For the foregoing reasons, the district court?s decision is AFFIRMED.

 

 

 

^* The Honorable David M. Ebel, Senior Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.

 

¹ Vickie filed for bankruptcy protection in the Central District of California while her probate claims were still pending in the Texas court. Pierce filed a proof of claim, and Vickie successfully counterclaimed against him for tortious interference with an expectancy. Vickie?s case was extensively litigated, including twice before the Supreme Court, and is not now before us. We nevertheless discuss certain aspects of her bankruptcy case to the extent they are relevant to this appeal.

 

² Pierce died in 2006. Elaine appears in her capacity as Successor Trustee of the Bettye B. Marshall Living Trust, Trustee of the J. Howard Marshall, II Marital Trust Number Two, and Successor Trustee of the E. Pierce Marshall Family Trust Created Under the Bettye B. Marshall Living Trust Indenture Dated October 30, 1990 (collectively ?the Trusts?).

 

³ Specifically, Judge Bufford found that Pierce (a) destroyed documents; (b) failed to respond to discovery requests; (c) failed to produce a privilege log and documents in camera; and (d) failed to produce documents held by J. Howard?s attorneys.

 

⁴ Judge Keller?s October 21, 1998 minute order granted Pierce?s motion to withdraw with respect to Pierce?s defamation claim and Vickie?s counterclaim. Vickie?s Chapter 11 petition, Pierce?s proof of claim, and aspects of Pierce?s defamation claim that pertained to dischargeability of debt, as well as all pending discovery matters were to remain before the bankruptcy court. The minute order also indicated that ?[a]ll discovery matters which the bankruptcy judge determines are necessary to the ?core? bankruptcy proceedings . . . shall proceed before the bankruptcy court.?

 

⁵ The contents of the memorandum remain undisclosed.

 

⁶ The Supreme Court ultimately held that the bankruptcy court lacked constitutional authority to enter a final judgment on Vickie?s common law tort counterclaim. Stern v. Marshall, 131 S. Ct. 2594, 2601 (2011).

 

⁷ Judge Bufford sua sponte withdrew the final sanctions order on January 18, 2000. However, his October 6, 2000, decision on Vickie?s tortious interference counterclaim identified a number of factual findings the court deemed established as discovery sanctions against Pierce.

 

⁸ Howard claimed that J. Howard had orally promised to divide his estate equally between his two sons after Howard agreed to sell back to J. Howard voting shares of Koch Industries. In his fraud counterclaim, Pierce argued that J. Howard had disinherited Howard in 1980, that no such oral promise was ever made, and that Howard purposely sold his shares back to J. Howard in order to later concoct the claim that the sale was consideration for his father?s oral promise to divide his estate equally between his sons.

 

⁹ The probate court?s modified Fraud Judgment reflects a substantial reduction from the jury?s original $34 million judgment against Howard.

 

¹⁰ Elaine admits that Pierce deliberately refrained from filing a proof of claim in the Debtors? case to avoid potential counterclaims such as those brought against him in Vickie?s case.

 

¹¹ Judge Carter denied Pierce?s request for a stay without bond pending appeal of the bankruptcy opinions. However, we granted a stay pending decision of the district court and also pending resolution of Vickie?s case in the Supreme Court (Stern v. Marshall, 131 S. Ct. 2594 (2011)). Although both decisions have now been rendered, consummation of the Plan remains stayed pursuant to the district court?s July 27, 2012 Order. See Order Granting Appellant?s Motion for Stay at 4, In re Marshall, 8:03- cv-01354-DOC, Docket no. 127 (C.D. Cal. July 27, 2012), ECF No. 127.

 

¹² At the time the Debtors filed their bankruptcy petition, the operative provision was General Order 224 § 1.2 (1993). The terms of that provision have been consolidated and superseded several times, but now exist in substantially the same form within General Order 08-05 § 1.2 (2008).

 

¹³ In bankruptcy cases, the parties must file a 1015-2 statement of related cases. Under Local Bankruptcy Rule 1015-2(a) (formerly, Rule 1015-2(1)) cases are deemed ?related? if the earlier case was filed or pending before the new petition was filed and the debtors:

 

(1) Are the same;

 

(2) Are spouses, former spouses, domestic partners, or former domestic partners;

 

(3) Are ?affiliates,? as defined in 11 U.S.C. § 101(2), except that 11 U.S.C. § 101(2)(B) shall not apply;

 

(4) Are general partners in the same partnership;

 

(5) Are a partnership and one or more of its general partners;

 

(6) Are partnerships that share one or more common general partners; or

 

(7) Have, or within 180 days of the commencement of either of the related cases had, an interest in property that was or is included in the property of another estate under 11 U.S.C. § 541(a), § 1115, § 1207, a n d / o r § 1306.

 

¹⁴ In fact, the Debtors explained that the cases were not technically related in the very Statement of Related Cases at issue here.

 

¹⁵ As a practical matter, Judge Bufford?s purported bias against Pierce would not spill over into Howard and Ilene?s bankruptcy case unless and until Pierce injected himself into the case by filing a proof of claim, which he had not done by the time Judge Bufford ruled on the recusal motion. This is true notwithstanding the fact that the time in which to file a proof of claim had not yet elapsed. Section 455(a) cannot reasonably be read to require recusal based on speculation that a particular party might subsequently enter in the case.

 

¹⁶ Although the Supreme Court ultimately determined that the bankruptcy court did not have jurisdiction over Vickie?s counterclaims, the propriety of the Final Sanctions Order was not ultimately decided in either venue. See In re Marshall, 600 F.3d 1037, 1046 n.17 (9th Cir. 2010) (noting that the Court?s ?discussion of these matters? would be ?limited? as ?the parties agreed that there [were] no sanctions issues . . . on appeal? and because ?Pierce . . . [was] entitled to judgment in his favor for other reasons . . .?).

 

¹⁷ Furthermore, the record does not suggest that ?the probability of actual bias? on Judge Bufford?s part was ?too high to be constitutionally tolerable[,]? so as to mandate his recusal on due process grounds. Withrow v. Larkin, 421 U.S. 35, 47 (1975).

 

¹⁸ In addition, while the asset schedule stated the value of the Debtors? stock holdings as ?unknown,? Elaine points to Howard?s Probate Affidavit which valued his stock holdings in the millions of dollars and a monthly statement from his investment advisor indicating that Howard?s stock holdings were worth $5,891,141.65. Elaine also claims that the amended schedules improperly listed the ?book value? of certain assets, rather than market value and ?inexplicably? valued various partnership interests at just one hundred dollars each. According to Elaine, Howard and Ilene?s assets actually exceeded their stated liabilities by at least $4,000,000.

 

¹⁹ In support of her motion to dismiss based on bad faith filing, Elaine also relies on the arguments that the Debtors were solvent and misrepresented the value of their assets. W e reject these arguments for the same reasons discussed supra section III.B.

 

 

 

APPENDIX DELETED