UNITED STATES BANKRUPTCY COURT
District of Massachusetts
In Re: Chapter 11
Case No. 96-10123-CJK
V&M MANAGEMENT, INC.
ALPHONSE MOURAD, Adversary Proceeding
Plaintiff No. 99-1205
HAROLD H. MURPHY
DONALD F. FARRELL, JR.
HANIFY & KING, P.C.
(A Law Partnership)
AND STEPHEN GRAY
ALPHONSE MOURAD'S MOTION FOR RECUSAL AND TO REMAND, AND
FOR LEAVE TO FILE THIS LATE STATEMENT OBJECTING TO AND
DENYING THE REMOVING PARTY'S(STEPHEN GRAY'S) REMOVAL ALLEGATIONS
Now comes the Plaintiff, Alphonse Mourad, and moves this Court (Kenner, C.J.) to recuse herself from this Adversary Proceeding No. 99-1205, and, pursuant to 28 U.S.C. § 1452(b) and Bankruptcy Rules 9014 and 9027 (d), to remand this action back to Suffolk Superior Court, and to have this Motion be considered Mourad's Statement, under Bankruptcy Rule 9027(e), denying and objecting to removal, and to allow the late (one month late) filing of this statement beyond the ten day period for filing said statement under Bankruptcy Rule 9027(e).
In support, Mourad says as follows:
1. On December 23, 1998, this Court granted Trustee Gray's Motion For Final Decree and ordered the V&M Management, Inc. Bankruptcy Case, No. 96-10123-CJK, to be closed upon the outcome of Mourad's appeal. In her December 23, 1999 Memorandum of Decision on Amended Motion For Final Decree, the Court stated it would "overrule the objections and allow the motion, with final decree to enter upon resolution of (1) the matters presently under appeal and (2) the recently-decided matters as to which the appeal period has not lapsed. Except as to those matters, the case shall be deemed closed upon entry of the order allowing this motion." Judge Kenner goes on to say: "Aside from an appeal filed recently by Alphonse Mourad and one recently decided matter as to which the appeal period has not lapsed, this case is ready to be closed, and there is no impediment to entry of the final decree. Because of the pending appeals and unlapsed appeal period, this case must remain open as to those matters and those matters only. For all other purposes, however, the Court will close this case forthwith." Judge Kenner's December 23, 1999 Memorandum of Decision on Amended Motion For Final Decree attached as Exhibit "1."
2. Mourad says that his appeal, BAP No. MB 98-104, in which this Court had awaited the final outcome to close V&M Management's bankruptcy case, was dismissed on March 12, 1999. See March 12, 1999 Judgement, attached as Exhibit "2."
3. Accordingly, V&M Management's bankruptcy case, Case No. 96-10123-CJK, was closed on that day.
4. On March 31, 1999, Mourad timely filed a State Court legal malpractice and conspiracy lawsuit in the Suffolk Superior Court, Case No. 99-1470-C, against Harold Murphy, Donald Farrell, Hanify & King, and Stephen Gray.
5. On or about April 6, 1999, Stephen Gray was served, and on May 5, 1999, Stephen Gray caused the State Court action to be removed to the U.S. Bankruptcy Court, claiming Mourad's lawsuit challenged Gray's actions as the Court-appointed Trustee, and therefore, it was appropriate to remove the case to this Bankruptcy Court.
6. Mourad disputes that assertion, and asks the Court to remand the case back to the Suffolk Superior Court, as allowable under 28 U.S.C. § 1452(b) and Bankruptcy Rule 9027(d), on any equitable ground.
7. The March 12, 1999 dismissal and closing of V&M Management, Inc.'s. bankruptcy case, No. 96-10123-CJK, is an equitable reason to remand this action.
8. Mourad further says that the U.S. Bankruptcy Court has no or questionable jurisdiction to rule upon any matters regarding the State Court malpractice suit filed in the Suffolk Superior Court, and that this Court should recuse itself or remand the State Court action back to the Suffolk Superior Court.
9. This U.S. Bankruptcy Court should not preside over a State Court malpractice lawsuit where the corporate V&M bankruptcy is no longer open, and where this State Court case was commenced by a non-bankrupt party, Alphonse Mourad. The Chapter 11 debtor, V&M Management, Inc., is not a party to the State Court lawsuit.
10. Trustee Gray, in his May 26, 1999 Memorandum and Motion to Dismiss, is wrong to assert that that "Mourad lacks standing to bring this action." Mourad can rightfully complain about a conspiracy between V&M's attorneys and the Court-appointed Trustee against him (Mourad).
11. Mourad says that he (not V&M Management, Inc.) filed the State Court malpractice suit personally, after V&M Management's bankruptcy case had been dismissed. Mourad has standing for his personal losses and irreparable harm caused by the actions of above mentioned Defendants to the State Court action.
12. Trustee Gray argues that "Mourad has failed to sate a claim upon which relief may be granted." Yet, Mourad says Trustee Gray perjured himself on two separate occasions and conspired with Hanify & King to deprive Mourad (not V&M) of his (Mourad's) property, causing irreparable harm to Mourad, and further unjustly enriching Stephen Gray with exorbitant fees and administrative expenses.
13. The fact that issues of collateral estoppel or res judicata may arise does not warrant federal removal; such issues can be heard in State Court.
14. To be blunt, Mourad maintains that this Court (Kenner, C.J.) hates his (Mourad's) guts, and is incapable of fairly adjudicating these claims, and is prejudiced, and biased against Mourad, as demonstrated by all the previous rulings made by Judge Kenner against Mourad.
15. Mourad says that Judge Kenner knew that Hanify & King represented Stephen Gray in the Patriot Paper Corp. bankruptcy case, because the Patriot Paper Corp. case was before Judge Kenner at the very same time the V&M bankruptcy case was before her. Judge Kenner did nothing about Stephen Gray's perjury when Gray filed two (April 5 and April 10, 1996) Verified Statements stating he had no connection to the debtor's (V&M's) attorney(s), when, in fact, Gray had a very significant connection by being represented by Hanify & King in another bankruptcy matter at the same time (before Judge Kenner no less).
16. These are not issues that Judge Kenner, who heard the V&M Management bankruptcy, should hear in this new action, now that the bankruptcy is over.
17. Trustee Gray removed this action as a forum shopping tactic to find a friendly, favorable forum. He should not be allowed to take advantage of this device. That is why remand is the appropriate and equitable remedy to employ.
18. Further, Harold Murphy, Donald Farrell, and Hanify & King unjustly refused to accept service of the State Court Complaint served to them by the Suffolk County Deputy Sheriff, at their One Federal Street, Boston office. Deputy Sheriff Igo told Mourad "This is the first time any law firm or attorney has refused to accept service from me."
19. Mourad was forced to file an emergency motion entitled- MOURAD'S EMERGENCY MOTION TO COMPEL THE SUFFOLK DEPUTY SHERIFF'S OFFICE TO 'SERVE' DEFENDANTS HAROLD MURPHY, DONALD FARRELL AND HANIFY & KING TO AUTHORIZE THE DEPUTY SHERIFF OR A DISINTERESTED PERSON TO ENTER UPON THE HANIFY & KING LAW OFFICES AT ONE FEDERAL STREET, BOSTON FOR THE PURPOSE OF SERVING MURPHY, FARRELL AND HANIFY & KING WITH THE SUMMONS AND COMPLAINT IN THE MATTER, see Exh. "3."
20. Judge Diane M. Kottymyer allowed Mourad's Motion, and Ordered the Defendants to appear on May 11, 1999, at 2:30 pm, at the Suffolk Courthouse, Room 227, to hear argument on said Motion, see Exh. "4."
21. During this hearing, D. Ethan Jeffery, attorney for Hanify & King, Murphy and Farrell, told Judge Kottymyer that the case had been transferred to the Bankruptcy Court, and that she no longer had jurisdiction to hear the case. This was to Judge Kottymyer's surprise, see May 11, 1999 Transcript, attached as Exh. "5." Judge Kottymyer Ordered the Defendants to accept service.
22. It wasn't until Judge Kottymyer ordered them to accept service that said parties complied, see Exh "6".
23. It would be inequitable for Judge Kenner, whom Alphonse Mourad has challenged and complained against, to hear Mourad's 'removed' State Court lawsuit. Remand resolves the problem without having to address the recusal aspect of the motion.
24. The Bankruptcy court has already heard enough about Alphonse Mourad. The Court has wrongfully formed a very negative, hostile, biased, prejudiced, and closed-minded opinion about Mourad, because he fought and disagreed with this Court's rulings, and challenged Judge Kenner about her misconduct, bias and prejudice to higher agencies, and the First Circuit Judicial Council.
25. The following lists Mourad's eight of Motions challenging Judge Kenner: (1) January 14, 1997 filed Mourad's Motion For Recusal, Exh."7." (2) February 13, 1997 filed Mourad's Motion For Change of Venue and Reassignment, Exh."8." (3) August 1, 1997 filed Emergency Motion For Reconsideration of Alphonse Mourad's Motion For Recusal, Exh."9." (4) June 1, 1998 filed Alphonse Mourad's Motion For Recusal of Judge Kenner On The Ground Of Her Committing Perjury, Exh."10." (5) August 11, 1998 filed Mourad's Motion To Supplement His Motion To Recuse Judge Kenner, Exh."11." (6) November 5, 1998 filed Mourad's Motion To Be Imprisoned and To Go On A Hunger Strike Until Judge Kenner Rules On His Six Pending Motions, Exh."12."
(6) November 13, 1998 filed Mourad's Motion Vowing Not To Leave Judge Kenner's Court Room and To Be Arrested And Go On Hunger Strike, Exh."13." (7) December 7, 1998 filed Mourad's Notice of His Petition For Impeachment of Judge Kenner To The House Judiciary Committee in Washington D.C., Exh."14."
26. Alphonse Mourad cannot get a fair hearing or fair shake from Judge Kenner. Judge Kenner's November 16, 1998 Order, attached as Exhibit "15," barring Mourad from the U.S. Bankruptcy Court has already lead to Mourad's May 12, 1999 arrest.
27. Mourad was arrested for simply following the advice of Judge Kottymyer, to go to the Bankruptcy Court's Clerk's Office to inquire about the transferred State Court action, and to see whether it was docketed. Again, see May 11, 1999 Transcript, attached as Exh. "5."
28. Mourad initially tried to call the Clerk's Office but got no response. So Mourad would not appear at the Clerk's Office unannounced, the night before, he (Mourad) notified the FBI that he had no choice but to go the Clerk's Office to inquire about the status of his case that was transferred to the Bankruptcy Court, and that he (Mourad) meant no harm to Judge Kenner. The FBI then notified U.S. Marshall Stephen M. Donaher to meet Mourad at the Bankruptcy Court and assist him in seeking access to the Clerk's Office. When Mourad arrived, and walked through the metal detectors, U.S. Marshall Donaher was awaiting him. Donaher escorted Mourad to a private room, so Mourad could wait while Donaher spoke with Judge Kenner privately about the matter. Donaher spoke with Judge Kenner for over a half hour, trying to convince her to allow Mourad to inquire about his case. Mourad came nowhere near Judge Kenner or her Courtroom. Marshall Donaher was forced, by Judge Kenner, to arrest Mourad for contempt of court for violating an invalid Court Order that has no legal or constitutional basis, especially after the bankruptcy case was dismissed, and is a deprivation of Mourad's civil right of access to the Courts.
29. As a result of Judge Kenner's vindictive, invalid and unconstitutional Court Order, Mourad now has a criminal record, is be prosecuted by the U.S. Attorney, Donald K. Stern, and could possibly face up to six months in prison.
30. Mourad, a United States Citizen, has been treated like a Lebanese immigrant, with no rights. Judge Kenner seems to think Mourad is an Lebanese immigrant, as she has barred Mourad from the U.S. Bankruptcy Court for life.
31. That Order barring Mourad's presence in the Bankruptcy Court is yet another equitable reason to remand this action to State Court, to protect Mourad's civil right of access to the Courts for redress of his legal grievances. Mourad cannot participate in this removed Court action if the case remains in a Bankruptcy Court from where he is barred.
32. Another equitable and constitutional reason to remand is that Gray's removal to this Bankruptcy Court deprives Mourad of his Massachusetts State Constitutional Right (Art.15), and his Federal Seventh Amendment right of trial by jury to decide this "controversy exceeding twenty dollars."
33. Mourad properly included his jury trial claim in his Complaint, and he does not consent to having the Bankruptcy Court hear this action; unless this Court is prepared to offer Mourad a jury trial, under Bankruptcy Rule 9015. Mourad suggests that remand to the Suffolk Superior Court avoids this Seventh Amendment deprivation issue.
34. Finally, Mourad says that the State law claims are best heard in State Court, and that the Suffolk Superior Court can hear such cases. In Palmer v. Murphy, 42 Mass App Ct. 334, 677 N.E. 2d 247 (1997), the Court allowed the joinder of the trustee in bankruptcy, Harold Murphy, a defendant here, to be added as a party to a State Court lawsuit.
35. There are no equitable reasons to keep this case in the U.S. Bankruptcy Court, and there are equitable and constitutional grounds to remand the action, and get the case out of Judge Kenner's Courtroom.
WHEREFORE, Mourad moves this Court to recuse and/or to remand this action back to the Suffolk Superior Court.
ALPHONSE MOURAD, PRO SE
125 West Street
Hyde Park, MA 02136
June 11, 1999
CERTIFICATE OF SERVICE
I, Alphonse Mourad, hereby certify that I mailed, on June 11, 1999, mailed a copy of this Motion to Recuse and Remand to:
W. Daniel Troyka and Paul Moore, Attorneys for Stephen Gray, Choate, Hall & Stewart, 53 State Street, Boston, MA 02109, to D. Ethan Jeffrey, Attorney for Murphy, Farrell and Hanify & King Hanify & King, One Federal Street, Boston, MA 02110, and to Donald K. Stern, 1003 John W. McCormack POCH, 90 Devonshire Street, Boston, MA 02109, and that I delivered the original to the U.S. Bankruptcy Clerks Office, 10 Causeway St., Boston, and that Clerk Lynch, on June 4, 1999, granted me an enlargement until June 15, 1999 to file this Motion/Reply.