IN	THE	UNITED	STATES	DISTRICT	COURT	FOR	THE

SOUTHERN	DISTRICT	OF	ALABAMA

SOUTHERN	DIVISION

In	Re: )

)

RICHARD	D.	HORNE and	 )

PATRICIA	NELSON	HORNE, )

)

Debtors, )

)

MARY	BETH	MANTIPLY, )

) CIVIL	ACTION	NO.	13-00258-CB-B

Plaintiff/Appellant, )

)

v. )

)

RICHARD	D.	HORNE	and )

PATRICIA	NELSON	HORNE, )

)

Defendants/Appellees. )

OPINION

For	the	second	time,	this	matter	is	before	the	Court	on	appeal	of	an	order	of	

the	bankruptcy	court.		After	the	Court	entered	its	opinion	in	the	first	appeal,	but	

before	entry	of	final	judgment,	appellant	Mary	Beth	Mantiply	filed	a	second	notice	of	

appeal.		The	Court	granted	Mantiply’s	motion	to	consolidate	the	two	appeals.		In	the	

current	appeal,	Mantiply	appeals	“from	the	Judgment	Order,	or	Decree	of	the	

Bankruptcy	Judge	of	December	17,	2013.”		(Notice	of	App.,	R2. 3,	Bkt.	Doc.	388.)1		

That	order	denied	Mantiply’s	“Motion	for	Recusal	Based	on	Newly	Discovered	

																																																							 1 The	record	on	appeal	from	the	second	appeal	(Doc.	58)	will	be	designated	

“R2.”.		The	record	on	appeal	from	the	first	appeal	(Doc.	1)	will	be	designated	“R.”.			

The	abbreviation	“Bkt.	Doc.”	refers	to	the	cm/ecf	docket	entry	in	bankruptcy	court.		

As	is	customary	in	this	district,	the	abbreviation	“Doc.”	refers	to	the	cm/ecf	docket	

entry	in	this	Court.

Case 1:13-cv-00258-CB-B Document 72 Filed 04/08/14 Page 1 of 14
2

Evidence	and	Motion	to	Supplement	the	Record	on Appeal”	(R2.		862-66,	Bkt.	Doc.	

376)	and	Motion	to	Supplement	(R2.	867-68,	Bkt.	Doc.	377.)

Procedural	History

In	2011,	Debtors	Richard	Horne	and	Patricia	Horne	filed	a	motion	for	

sanctions	in	bankruptcy	court	against	attorney	Mary	Beth	Mantiply	for	violating	the	

bankruptcy	code’s	automatic	stay	provision	and	for	violating	the	bankruptcy	code’s	

discharge	injunction.		After	a	lengthy	period	of	discovery	and	an	evidentiary	

hearing,	Judge	Shulman	found	in	favor	the	Debtors	and	against	Mantiply	on	both	

counts.			On	January	24,	2013,	the	judge	entered	an	oral	motion	order	granting	the	

motion	and	awarding	compensatory	damages,	punitive	damages, and	attorney’s	

fees.		Altogether,	the	sanctions	award	amounted	to	$81,714.31	($40,000	in	

compensatory	and	punitive	damages	and $41,714.31	in	attorneys	fees).		Mantiply	

appealed	(“the	first	appeal”).				

While	the	first	appeal	was	pending,	Mantiply filed	two	identical	motions	

seeking	relief	from	judgment	in	bankruptcy	court	based	on	“newly	discovered	

evidence.”		Judge	Shulman	denied	both	motions—the	first	because	of	the	divestiture	

rule	and	the	second	because	it	was	based	on	Fed.	R.	Civ.	P.	62.1,	which	is	

inapplicable	to	bankruptcy	courts.		Mantiply	subsequently	filed	a	motion	in	this	

Court	seeking,	in	effect,	limited	remand so	that	the	bankruptcy	court	could	consider	

the	“newly	discovered	evidence.”		This	Court	declined	to	remand	the	motion	to the	

bankruptcy	court	for	its	consideration.		(Doc.	24.)		Remand	would	have	been	futile	

because	the	motion	clearly	did	not	meet	four	of	the	five	requirements	for	relief	from	

Case 1:13-cv-00258-CB-B Document 72 Filed 04/08/14 Page 2 of 14
3

judgment	based	on	newly	discovered	evidence	set	forth	in	Fed.	R.	Civ.	P.	60(b).		(Id.

at	6-9.)

Richard	Horne	died	during	the	pendency	of	the	first	appeal.		His	counsel	filed	

suggestion	of	death	on	September	6,	2013.		(Doc.	31.)		On	October	28,	2014,	Patricia	

Horne,	as	personal	representative	of	the	Estate	of	Richard	Horne,	was	substituted	

for	Richard	Horne.		(Doc.	34.)		The	same	day,	the	Court	entered	issued	its	opinion	

affirming	the	bankruptcy	court’s	award	of	sanctions.		(Doc.	35.)	Final	judgment	was	

not	entered,	however.		By	separate	order,	the	Court	granted	the	Hornes’	motion	for	

attorneys’ fees	on	appeal	and	set	a	deadline	for	submission	of	fee	request	and	

supporting	documentation.		That	order	also	provided	Mantiply	an	opportunity	to	

object	to	the	amount	of	the	fee	request.		

On	November	12,	2013,	Mantiply	filed	a	pleading	in	this	Court	entitled	

“Motion	for	Rehearing;	to	Alter,	Amend	or	Vacate	Opinion,	or	for	Relief	from	

Opinion.”		(Doc.	37.)		Attached	to	the	motion	were	several	exhibits,	including	

affidavits	from	Angela	Brunson,	Frank	Kruse,	Gus	Dimitreolos,	Paulene	Phillips	and	

two	affidavits	from	Mary	Beth	Mantiply.		(Doc.	37-1.)		The	motion	was	a	“bare	

bones”	motion,	which	cited	no	law	or	facts	and	for	that	reason	was	denied.		(Doc.	

41.)		On	November	27,	2013,	Mantiply	filed	a	pleading	entitled	“Objections	to	

Attorney	Fees,	Amended	and	Renewed	Motion	for	Rehearing,	or	for	Relief	from	

Opinion	and	Brief	in	Support	Thereof.”		(Doc.	42.) Included	as	part	of	the	same	

filing,	albeit	a	separate	document	was	a	“Motion	for	Recusal	Based	on	Newly	

Discovered	Evidence	and	Motion	to	Supplement	the	Record	on	Appeal.”	(Doc.	42,	pp.	

Case 1:13-cv-00258-CB-B Document 72 Filed 04/08/14 Page 3 of 14
4

12- 16)	and	attached	affidavits2 (Doc.	42,	pp.	17-29).		In	the	order	addressing	the	

claims	raised	in	that	pleading,	this	Court	observed	that	the	“Appellant	ha[d]	not	

identified	any	legal	basis	for asserting	th[e]	[recusal]	motion.”		Because	the	motion	

most	closely	resembled	a	Rule	60(b)(2)	motion	for	new	trial	based	on	newly	

discovered	evidence,	the Court	held	that	it	should	first	be	presented	to	the	

bankruptcy	court.		(Id. at	4-5.)		

In	fact,	on	the	same	day	she	filed	the	above-described	motions	in	this	Court,	

Mantiply	filed	an	identical “Motion	for	Recusal	Based	on	Newly	Discovered	Evidence	

and	Motion	to	Supplement	the	Record	on	Appeal” in	bankruptcy	court. (R2.	862,	Bkt.	

Doc.	376.)	 In	addition,	Mantiply	filed	in	bankruptcy	court	a	separate	“Motion	to	

Supplement	the	Record”	requesting	that	the	bankruptcy	court	supplement	the	

record	on	appeal	with a	transcript	of	a	March	25,	2013	hearing	to	set	the	bond	

amount.3		(R2.	867-68,	Bkt.	Doc.	377.)		On	December	17,	2013,	Judge	Shulman	

entered	an	order	denying	the	motions.		This	appeal (“the	second	appeal”)	followed,	

and	because	final	judgment	had	not	been entered	on	the	first	appeal	the	two	appeals	

were	consolidated.

Mantiply’s	Newly	Discovered	Evidence	&	Judge	Shulman’s	Order

																																																							 2 These	are	the	same	affidavits	submitted	with	the	“Motion	for	Rehearing...”		

(Doc.	37.)		

3 Adding	confusion	to	the	chaos	of	this	record,	the	Motion	for	Recusal.	.	.	and	

to	Supplement.	.	.”		requests	that	the	bankruptcy	court	supplement	the	record	on	

appeal	“with	the	attached	affidavits”	(R2.	864,	Bkt.	Doc.	376),	but	no	affidavits	are	

attached.		Instead,	those	affidavits	and	other	related	documents	are	attached	to	the	

separate	“Motion	to	Supplement	the	Record	on	Appeal”	regarding	bond	hearing	

transcript.		(R2.	869-81,	Bkt.	Doc.	377-1.)		The	affidavits	are	identical	to	those	filed	

in	this	Court.

Case 1:13-cv-00258-CB-B Document 72 Filed 04/08/14 Page 4 of 14
5

Mantiply’s	“Motion	for	Recusal	Based	on	Newly	Discovered	Evidence”	was	

based	on	her	discovery	(made	less	than	three	weeks	prior)	that	Judge	Shulman’s	

courtroom	deputy,	Angela	Jemison,	and	Chrissie	Carnley,	a	paralegal	for	one	of	the	

Hornes’	attorneys,	are	sisters.		Carnley	had	submitted	an	affidavit	on	behalf	of	the	

Hornes	attesting that	she	had	served	copies	of	the	amended	petition	adding	

Mantiply’s	clients	as	creditors	in	the	bankruptcy	case	on	Mantiply	via	United	States	

mail.		Mantiply	denied,	under	oath,	having	received	them.

4		According	to	the	motion,	

“Judge	Shulman	made	factual	findings	that	Mrs.	Mantiply’s	testimony	as	to	

numerous	issues	was	not	credible	and	resolved	almost	every	disputed	question	of	

fact	and	inference	against	her.”		(R2.	863,	Bkt.	Doc.	376.)		

The	motion	cited	no	Bankruptcy	Rule	or	Federal	Rule	of	Civil	Procedure.		

After	reciting	the	recusal	standard	of	28	U.S.C.	§	455(a),	which	requires	that	a	judge	

“shall	disqualify	himself	in	any	proceeding	in	which	his	impartiality	might	

reasonably	be	questioned,”		Mantiply	argued	that	“observers	would	certainly	

entertain	doubt”	about	Judge	Shulman’s	impartiality	because	he	“was	required	to	

choose	between	the	conflicting	testimonies	of	his	Courtroom	Deputy’s	sister	and	

Mrs.	Mantiply.”	 (Id. 864.)		The	motion	did	not	seek	any	specific	remedy	other	than	

recusal.

In	response,	Horne	argued	that	the	appeal	had	divested	the	bankruptcy	of	

jurisdiction	to	consider	the	motion.		Alternatively,	Horne	pointed	out	the	motion’s		

“multiple	factual	inaccuracies	and	incorrect	legal	assertions.”	(R2.	889,	Bkt.	Doc.	

																																																							 4 There	were	a	total	of	six	amended	petitions,	one	for	each	of	Mantiply’s	

clients.

Case 1:13-cv-00258-CB-B Document 72 Filed 04/08/14 Page 5 of 14
6

379.)		Horne	also	filed	an	objection	to	the	motion	to	supplement	the	record	on	

appeal.		(R2.	931,	Bkt.	Doc.	380.)

In	his	written	order	dated	December	17,	2013,	Judge	Shulman	found	that	the	

bankruptcy	court	had	jurisdiction	to	“either	deny	a	Rule	60(b)	motion	or	indicate	its	

opinion	that	the	arguments	raised	have	merit	when	a	case is	on	appeal.”		(R2.	963,	

Bkt.	Doc.	386)	(citing	Mahone	v.	Ray,	326	F.3d	1176	(11th Cir.	2003)).		Next,	because	

Mantiply	had	asserted	the	motion	for	recusal	as	one	based	on	“newly	discovered	

evidence”	Judge	Shulman	addressed	it	as	a	motion	for	relief	from judgment	based	on	

newly	discovered	evidence	under	Fed. R.	Civ.	P.	60(b)(2)	(adopted	by	Bankruptcy	

Rule	9024)	and	applied	the	five	requirements	for	relief	from	judgment	based	on	

newly	discovered	evidence:		“(1)	the	evidence	was	newly	discovered	since	trial;	(2)	

the	movant used	due	diligence	to	discover	the	evidence;	(3)	the	evidence	is	not	

merely	cumulative	or	impeaching;	(4)	the	evidence	is	material;	and	(5)	the	evidence	

is	such	that	a	new	trial	would	probably	produce	a	new	result.”		(Id. 964)	(citing	

Waddell	v.	Henry	County	Sheriff’s	Office,	329	F.3d	1300,	1309	(11th Cir.	2003)).

After	finding	that	the	first	two	requirements	were	met,	Judge	Shulman	noted	

that	“[t]he	crux	of	Mantiply’s	argument	is	that	[the	judge]	was	biased	in	favor	of	the	

evidence	presented	by	the	Hornes	that	Mantiply	was	served	with	the	amendments	

that	added	her	clients	to	the	Hornes’	bankruptcy	schedules	due	to	the	familial	

relationship	between	his	deputy	clerk	and	the	proponent	of	the	affidavit	to	prove	

service	[Carnley].”		(R2.	964,	Bkt.	Doc.	386.)		Judge	Shulman	found	that	the	evidence	

was	impeachment	evidence	because	it	was	directed	at	bias	and	related	to	Mantiply’s	

credibility.		He	also	found	that	the	evidence	was	cumulative	because	“there	was	

Case 1:13-cv-00258-CB-B Document 72 Filed 04/08/14 Page 6 of 14
7

evidence	of	Mantiply’s	actual	knowledge of	the	Hornes’	bankruptcy	almost	from	the	

time	of	filing.”		(Id.)		Next,	the	judge	determined	that	the	evidence	was	not	material	

because	“Mrs.	Carnley’s	affidavit	merely	outlined	the	routine	and	ministerial	actions	

she	took	as	Mr.	Wynne’s	legal	assistant	to	serve	the	amendments.”	5 (Id. 965.)			

Finally,	Judge	Shulman	concluded	that	the	outcome	of	the	hearing	would	have	been	

the	same	even	if	the	relationship	between	Carnley	and	Jemison	had	been	raised	at	

that	time	because	“[t]he	Court	was	not	biased	by	the	relationship.”		(Id.)			The	order		

concluded	by	denying	“Mantiply’s	motion	for	recusal	based	on	newly	discovered	

evidence	and	motion	to	supplement	the	record.”6		(Id.)

Issues	Presented

On	appeal,	Mantiply argues	that	Judge	Shulman applied	the	wrong	legal	

analysis	to	her	motion	for	recusal	based	on	newly	discovered	evidence and	that	

application	of	the	correct	legal	standard	should	result	in	Judge	Shulman’s

																																																							 5 Furthermore,	Judge	Shulman	rejected	Mantiply’s	implication	that	

something	nefarious	was	afoot	because	Carnley’s	testimony	was	not	verified	by	a	

notation	of	service	on	the	docket	sheet.		Pursuant	to	Bankruptcy	Local	Rule	1009-1,	

“the	debtor’s	attorney	is	responsible	for	serving	amendments	on	creditors,	not	the	

Clerk’s	office;	therefore,	there	is	not	docket	entry	regarding	service.”		(Id. 965)

6 The	order	did	not	specifically	address	the	motion	to	supplement	the	record	

contained	within	the	motion	for	recusal,	nor	did	it	specifically	address	the	

separately	filed	motion	to	supplement	the	record	with	the	bond	hearing	transcript.		

It	did,	however,	refer	to	both	motions	by	docket	entry.		(Id. 967.)		Therefore,	the	

order	applies	to	both	motions	to	supplement.

Case 1:13-cv-00258-CB-B Document 72 Filed 04/08/14 Page 7 of 14
8

disqualification	and	vacatur	of	the	sanctions	award.

7		In	response,	Horne	argues	that	

the	bankruptcy	court	did	not	abuse	its	discretion	in	denying	the	recusal	motion.	8

Standard	of	Review

A	district	court	sitting	as	an	appellate	court	in	a	bankruptcy	appeal	reviews	

the	bankruptcy	court’s	legal	conclusions	de	novo and	reviews	findings	of	fact	under	

a	clearly	erroneous	standard.		In	re	Sublett,	895	F.2d	1381,	1383	(11th Cir.	1990).		

Legal	Analysis

Introduction

In	retrospect,	the	legal	analysis	applied	by	the	bankruptcy	court	was	wrong;	

however;	application	of	the	correct	legal	standard	leads	to	the	same	result.9		

Confronted	with	a	“Motion	for	Recusal	Based	on	Newly	Discovered	Evidence”	in	a	

matter	in	which	judgment	had	been	entered,	Judge	Shulman	analyzed	it	under	Rule	

60(b)(2)	as	a	motion	for	relief	from	judgment	based	on	newly	discovered	

evidence.10 		Postjudgment	motions	to	vacate	based	on	violations	of	28	U.S.C. §	

																																																							 7 In	her	Statement	of	Issues	and	Standard	of	Review,	Mantiply	also	asserts	

the	following	issue:		“Whether	the	Trial	Court’s	denial	of	Appellant’s	Motion	to	

Supplement	was	error[?]”	 (Appellant’s	Br.	3,	Doc.	66.)		Nowhere	in	her	brief	does	

she	identify	which	motion	to	supplement	she	is	referring	to,	identify	the	error,	or	

address	the	issue.		The	Court	deems	this	issue	to	be	abandoned.

8 Horne	also	points	to	a	number	of	issues	and	arguments	raised	in	Mantiply’s	

motions	that	are	due	to	be	stricken	for	failure	to	cite	to	the	record	or	to	legal	

authority.		Though	many	of	Horne’s	arguments	are	well	taken,	it	is	ultimately	

unnecessary	to	resolve	them.	

9 An	appellate	court	may	affirm	a	lower court’s	decision	“’on	any	ground	that	

appears	in	the	record	whether	or	not	that	ground	was	relief	upon	or	even	

considered	by	the	court	below.	‘”		Rowell	v.	BellSouth	Corp.,	433	F.3d	794,	798-99	

(11th Cir.	2005)	(quoting	Powers	v.	United	States,	996	F.2d	1121,	1123-1124	(11th

Cir.	1993)).	

10Horne	argues	that	Mantiply	never	requested	relief	from	judgment	below	

and,	therefore,	the	issue	cannot	be	considered	on	appeal.		This	argument	presents	a	

close	question.	Horne	points	out	that	the	motion	filed	in	bankruptcy	court	sought	

Case 1:13-cv-00258-CB-B Document 72 Filed 04/08/14 Page 8 of 14
9

455(a)	fall	under	Rule	60(b)(6),	which	provides	relief	from	judgment	under	“upon	

such	terms	as	are	just.”		Liljeberg	v.	Health	Serv.	Acquisition	Corp.,	486	U.S.	847,	863-

64	(1988).		On	appeal,	the	denial	of	a	Rule	60(b)	motion	is	reviewed	for abuse	of	

discretion.		Crapp	v.	City	of	Miami	Beach,	242	F.3d	1017,	1019	(11th Cir.	2006).

The	Supreme	Court	has	held	that	“Rule 60(b)(6)	relief	is	[	]	neither	

categorically	available	nor	categorically	unavailable	for	all	§	455(a)	violations.”		

Liljeberg,	486	U.S.	at	863.		Instead,	three	issues	should	be	considered	in	deciding	

whether	a	judgment	should	be	vacated	when	a	violation	has	occurred:	“the	risk	of	

injustice	to	the	parties	in	the	particular	case,	the risk	that	the	denial	of	relief	will	

produce	injustice	in	other	cases,	and	the	risk	of	undermining	the	public’s	confidence	

in	the	judicial	process.”		Id. at	864.		The	Court rejects	Mantiply’s	claim	that	the	

sibling	relationship	between	Judge	Shulman’s	courtroom	deputy	and	Ms.	Carnley	

created	an	appearance	of	impropriety.		Even	though	affirmance	is	appropriate	on	

that	ground	alone,	the	Court	also	considers,	and	rejects,	Mantiply’s	position	that	the	

purported	violation	would	entitle	her	to	relief	from	judgment.		

Judge	Shulman’s	Failure	to	Disqualify	Himself	Did	Not	Violate	§	455(a)

The	first	question	to	be	considered	is	whether	the	sibling	relationship	

between	a	witness	and	a	courtroom	deputy	creates	an	appearance of	impropriety.		

																																																																																																																																																																				

only	“recusal”	in	a	matter	no	longer	pending	before	the	bankruptcy	court.			Not	until	

appeal	did	Mantiply	assert	that	the	judgment	should	be	vacated.	It	is	true	that	“an	

issue	not	raised	[below]	and	raised	for	the	first	time	in	an	appeal	will	not	be	

considered	[on	appeal].”		Access	Now,	Inc.	v.	Southwest	Airlines	Co.,	385	F.3d	1324,	

1331	(11th Cir.	2004).		 The	motion	filed	below	addressed	only	grounds	for	recusal	

under	28	U.S.C.	§	455(a),	did	not	address	the	point	of	a	motion	for	recusal	filed	postjudgment,	did	not	cite	any	rule	supporting	relief	from	judgment,	and	did	not	request	

specific	relief	other	than	recusal.		Nevertheless,	Judge	Shulman	interpreted	the	

motion	as	one	for	relief	from	judgment	and	addressed	it	as	such.		For	that	reason,	

this	Court	will	also	address	the	merits	of	the	claim.

Case 1:13-cv-00258-CB-B Document 72 Filed 04/08/14 Page 9 of 14
10

The	unequivocal	answer	is	that	it	does	not.		The	Court	has	neither	found,	nor	been	

directed to,	any	cases	in	which	recusal	was	sought	based	on	the	relationship	

between	a	court’s	administrative employee,	such	as	a	courtroom	deputy,	and	a	

witness	or	party.		There	are,	however,	a	number	of	recusal	cases	involving	law	

clerks,	who	are	members	of	chambers	staff	and	who	engage	in	substantive	work	on	

cases	assigned	to	the	judge.		The	rule	that emerges	from	those	cases	is	this:		If	a	law	

clerk’s	relationship	with	an	attorney	or	party	in	a	case	creates	an	appearance	of	

impropriety,	then	the	law	clerk	is	disqualified	from	working	on	that	case	but	the	

judge	is	not.		See	Parker	v.	Connors	Steel	Co.,	855	F.2d	1510,	1523-25	(11th Cir.	1988)	

(appearance	of	impropriety	based	on	totality	of	circumstances,	including	judge	

giving	credit	to	law	clerk	in	opinion,	law	clerk’s	father	partner	in	law	firm	that	

represented	defendant,	and	law	clerk	holding	hearing	in	judge’s	absence);	 Hunt	v.	

Am.	Bank	&	Trust	Co.	of	Baton	Rouge, 783	F.2d	1011	(11th Cir.	1986)	(per	curiam),	

(recusal	not	required	where	two	of judge’s	law	clerks	accepted	offers	of	

employment	from	law	firm	representing	defendants	while	case was	pending	and	

case	had	been	assigned	to	one	of	those	law	clerks	as	a	“ministerial”	matter	before	

law	clerk	recused);	Crawford	v.	Dept.	of	Homeland	Security,	245	Fed.	Appx.	369	(5th

Cir.	2007)	(affirming	denial	of	recusal	motion	based	on	unsupported	speculation	

that	law	clerk previously	litigated	against	plaintiff	and	noting	that	“the	final	

decisions	in	this	case were	made	by	the	judge,	not	the	law	clerk”).	 The	mere	

existence	of	a	relationship	between	a	law	clerk	and	a	party	does	not	disqualify	the	

judge;	rather,	disqualification	may	be	called	for	only	if	the	law	clerk	works	on	the	

case,	i.e.,	makes	a	substantive contribution	to	the	outcome	of	the	case.		

Case 1:13-cv-00258-CB-B Document 72 Filed 04/08/14 Page 10 of 14
11

A	courtroom	deputy	functions	as	an	administrative	employee	who plays	no	

substantive	role	in	the	decision-making	process.		A law	clerk’s	relationship	to	a	

party	does	not	create	an	appearance	of	impropriety,	as	long	as	the	law	clerk	

performs	no	substantive	work	on	the	case.		A	fortiori,	no	appearance	of	impropriety	

arises	from	courtroom	deputy’s	relationship	to	a	party	because	that	courtroom	

deputy’s	function	is	administrative,	not	substantive.		To	paraphrase	the	First	Circuit:		

“Both	bench	and	bar	recognize,	moreover,	that	judges,	not	[courtroom	deputies]	

make	the	decisions.”		In	re	Allied–Signal,	Inc.,	891	F.2d	967,	971	(1st Cir.	1989).		

Mantiply’s	reliance	on	United	States	v.	Kelly,	888	F.2d	732	(11th Cir.	1989),	to	

demonstrate	the	need	for	recusal	is	woefully	misplaced.	 In	Kelly,	a	criminal	case	

tried	nonjury, the	judge’s	wife	and	the	wife	of	a	witness	for	defense	were	close	

friends.		The	judge	asked	the	witness’s	wife	into	chambers	during	the	trial	where	

she	told	him	that	her	husband	was	going	to	be	a	witness.		The	judge	informed the	

parties	of	the	friendship,	“expressed	profound	doubts”	that	he	should	continue,	

“expressed	near	certainty”	that	he	should	recuse,	and	admitted	that	the	situation	

had	caused	him	marital	disharmony.		Id. at	745.	Nevertheless,	he	did	not	recuse	

himself	for	fear	that	jeopardy	had	attached.		The	appellate	court	reversed,	holding	

that	all	of	these	considerations—the	personal	relationship,	the	judge’s	expressed	

discomfort,	and	his	decision	to	avoid	a	potential	double	jeopardy	claim—created	an	

appearance	of	impropriety.		In	the	instant	case,	the	witness	had	no	relationship	to	

either	the	judge	or	a	member	of	his	family.		For	that	reason	alone,	Kelly is	inapposite.

In	further	support	of	her	argument	that	recusal	was	required under	§ 455(a),	

Mantiply	cites	a	number	of	Judge	Shulman’s	rulings	and	other	case-related	actions	

Case 1:13-cv-00258-CB-B Document 72 Filed 04/08/14 Page 11 of 14
12

that	she	contends	demonstrate	partiality.		This	Court	will	not	attempt	to	address	in	

detail	this	exhaustive	list	of	complaints	of	unfair	treatment.		Suffice	it	to	say	that	

“judicial	rulings	alone	almost	never	constitute	a	valid	basis	for	[a	recusal	motion	

under	§	455(a)]	when	no	extrajudicial	source	is	involved.”		Liteky	v.	United	States,	

510	U.S.	540,	555	(1994).		Because	the Court	has	found	no	extrajudicial	bias	(i.e.,	the	

sibling	relationship	between	the	courtroom	deputy	and	the	witness	did	not	create	

an	appearance	of	impropriety),	the	evidence	of	unfavorable	rulings	or	treatment	

cannot	support	the	recusal	argument.11

The	Decision	Would	be	Affirmed	Even	if	Recusal	Had	Been	Required

In	Liljeberg,	the	Supreme	Court	held	that	failure	to	recuse	when	recusal	is	

warranted	is	not	necessarily	grounds	for	reversal.		Instead	a	court	must	consider	the	

risk	of	injustice	to	the	parties,	risk	of	injustice	in	other	cases	and	the	risk	of	

undermining	the	public’s	confidence	in	the	judicial	process.		Liljeberg,	486	U.S.	at	

864.		Affirming	the	bankruptcy	judge’s	decision	would	not	reflect	adversely	on	any	

of	these	factors	because	the	evidence	supporting	the	sanctions	award	was	

overwhelming.		Mantiply	was	sanctioned	for	willful	violation	of	the	automatic	stay,	

11	U.S.C.	§	362(a)(1),	and	for	willful	violation	of	the	discharge	injunction,	11	U.S.C.	§	

																																																							 11 Mantiply	has	made	a	number	of	unsupported,	inflammatory	accusations	

regarding	Judge	Shulman’s	handling	of	this	case.		This	Court	cannot	allow	them	all	to	

go	without	remark.		On	pages	15-16	of	her	brief,	Mantiply	argues	that	Judge	

Shulman’s	partiality	was	apparent	because	he	ruled	too	quickly	on	Mantiply’s	

February	20,	2013	motion	to	vacate	the	bankruptcy	judgment.		Because	a	ruling	was	

entered	less	than	two	working	days	after	the	motion	was	filed,	Mantiply	concludes	

that	“having	your	sister	running	the	Judge’s	docket	comes	in	quite	handy	for	a	legal	

assistant,	her	boss	and	their	clients	when	the	collection	of	a	large	monetary	

judgment	is	at	stake.”		(Appellant’s	Br.	16.)		Mantiply	concludes	her	brief	in	a	similar	

vein,	requesting	that	“the	judgment	[	]	be	vacated	and	the	case	remanded	to	an	

impartial	Judge	and	preferably	one	without	a	fox	guarding	the	henhouse.”		(Id. 21.)			

These	gratuitous	statements	serve	no	useful	purpose.

Case 1:13-cv-00258-CB-B Document 72 Filed 04/08/14 Page 12 of 14
13

524(a).		Willful	violation	of	either	statute	occurs	when	a	party	is	aware	of	the	

bankruptcy	and	intended	the	actions	that	violated	the	stay	or	discharge.		In	re	Hardy,	

97	F.3d	1384,	1390	(11th Cir.	1996).		Mantiply	admittedly	knew	of	the	Hornes’	

bankruptcy	petition	shortly	after	it	was	filed.		With	that	knowledge,	she	filed	the	

state	court	action	against	Richard	Horne	and	kept	that	action	alive	long	after	the	

discharge	had	been	entered.		Indeed,	Mantiply	admits	that	she	violated	the	

automatic	stay	and	seeks	reversal	only	as	to	violation	of	the	discharge injunction.		

Mantiply	argued	at	the	sanctions	hearing	that	she	lacked	the	knowledge	

necessary	for	a	willful	violation	of	the	discharge	injunction	because	she	was	not	

aware	that	he	clients	had	been	added	as	creditors	in	the	bankruptcy	petition.		In	her	

current	appeal,	Mantiply	maintains	that	the	only	evidence	of	her	knowledge	is	the	

allegedly	tainted	Carnley	affidavit	and,	therefore,	reversal	is	warranted.12			That	

argument	ignores	crucial	law	and	evidence.		First,	knowledge	of	the	existence	of	the	

bankruptcy	proceeding	is adequate	to	put	a	creditor	on	notice	that	he	must	file	a	

complaint	in	bankruptcy	contesting	dischargeability	or	be	forever	barred,	even	if	the	

debtor	failed	to	list	him	as	a	creditor.		Byrd	v.	Alton	(In	re	Alton),	837	F.2d	457,	461	

(11th Cir.	1988)	(per	curiam).13		Therefore,	because	Mantiply	had	actual	knowledge	

of	the	bankruptcy	petition,	notice	that	her	clients	had	been	listed	as	creditors	was	

unnecessary.		Second,	there	is	indisputable	evidence	that	Mantiply	received	actual	

																																																							 12 Carnley	testified	that	she	served	the	amended	petition	adding	Mantiply’s	

clients	by	mailing	them	to	Mantiply.		Mantiply	denied	receiving	any	of	the	six	copies	

Carnley	allegedly	mailed.		

13 Mantiply	points	out	that	Alton was	abrogated	by	Kontrick	v.	Ryan,	540	U.S.	

443	(2004).		It was,	however,	abrogated	on	a	completely	unrelated	issue,	i.e.,	

whether	a	bankruptcy	court	had	discretion	to	consider	a	late-filed	motion	to	extend	

time	to	file	dischargeability	complaint.	With	respect	to	other	issues,	Alton remains	

good	law.

Case 1:13-cv-00258-CB-B Document 72 Filed 04/08/14 Page 13 of 14
14

notice	that	her	clients	were	listed	as	creditors.		 After	her	clients	were	added	as	

creditors, Mantiply	received at	least	120	notices,	on	behalf	of	her	clients,	from	the	

bankruptcy court.		(Oct.	28,	2013	Opinion	3,	Doc.	35.)

Conclusion

For	the	reasons	set	forth	above,	the	Court	finds	that	Judge	Shulman	was	not	

required	to	recuse	himself	from	this	case	and	did	not	err	in	denying	the	motion	for	

relief	from	judgment.		Accordingly,	the	order	is	AFFIRMED.

DONE and	ORDERED this	the	8th day	of	April,	2014.

s/Charles	R.	Butler,	Jr.	

Senior	United	States	District	Judge

Case 1:13-cv-00258-CB-B Document 72 Filed 04/08/14 Page 14 of 14