The Honorable George B. Daniels, United States *

District Court for the Southern District of New York,

sitting by designation. 

1

08-3658-bk

In re Calpine Corp.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED

AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1 AND

FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT

CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION

MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: “(SUMMARY ORDER).”

UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE

WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV), THE

PARTY CITING THE SUMMARY ORDER MUST FILE AND SERVE A COPY OF THAT SUMMARY ORDER TOGETHER

WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED. IF NO COPY IS SERVED BY REASON OF THE

AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT

DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

4 New York, on the 25 day of November, two thousand nine. th

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 PIERRE N. LEVAL,

9 Circuit Judge,

10 GEORGE B. DANIELS,*

11 District Judge.

12

13 - - - - - - - - - - - - - - - - - - - -X

14

15 IN RE: CALPINE CORPORATION,

16

17 Debtor,

18

19 - - - - - - - - - - - - - - - - - - - -X

20
2

1 ELIAS A. FELLUSS, 

2

3 Appellant,

4

5 -v.- 08-3658-bk

6

7 CALPINE CORPORATION, THE OFFICIAL 

8 COMMITTEE OF UNSECURED CREDITORS,

9

10 Appellees.

11

12 - - - - - - - - - - - - - - - - - - - -X

13

14 APPEARING FOR APPELLANT: ELIAS A. FELLUSS, pro se,

15 Centerport, N.Y.

16

17

18 APPEARING FOR APPELLEES: RICHARD M. CIERI, MARC

19 KIESELSTEIN, and DAVID R.

20 SELIGMAN, Kirkland & Ellis LLP,

21 New York, N.Y., and JEFFREY S.

22 POWELL, ASHLEY C. PARRISH, and

23 SCOTT M. ABELES, Kirkland &

24 Ellis, Washington, D.C., for

25 Reorganized Debtors-Appellees.

26

27 MICHAEL S. STAMER, DAVID M.

28 ZENSKY, and PHILIP C. DUBLIN,

29 Akin Gump Strauss Hauer & Feld

30 LLP, New York, N.Y., for

31 Appellee Official Committee of

32 Unsecured Creditors.

33

34 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

35 AND DECREED that the judgment of the district court be

36 AFFIRMED. 

37

38 Elias A. Felluss, pro se, appeals from the judgment of

39 the United States District Court for the Southern District

40 of New York (Marrero, J.), dismissing as moot his appeal

41 from a judgment of the United States Bankruptcy Court for

42 the Southern District of New York (Lifland, J.). We assume

43 the parties’ familiarity with the underlying facts, the

44 procedural history, and the issues presented for review. 

45
3

1 A district court’s affirmation of a bankruptcy court’s

2 judgment is subject to plenary review; conclusions of law

3 are reviewed de novo and findings of fact are reviewed for

4 clear error. In re First Cent. Fin. Corp., 377 F.3d 209,

5 212 (2d Cir. 2004). Having undertaken such a review, we

6 affirm for substantially the reasons stated by the district

7 court. Felluss’s appeal is equitably moot because the plan

8 of reorganization was substantially consummated and Felluss

9 has not overcome the ensuing presumption of mootness by

10 establishing the factors set forth in In re Chateaugay

11 Corp., 10 F.3d 944, 952-54 (2d Cir. 1993).

12

13 Finding no merit in Felluss’s remaining arguments, we

14 AFFIRM the judgment of the district court.

15

16

17 FOR THE COURT:

18 CATHERINE O’HAGAN WOLFE, CLERK

19

20 By:___________________________