The opinion
April 03, 2024
Nathan Ochsner, Clerk
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
IN RE: §
§ CASE NO: 24-396
Attorney Suspension of Diogu §
Kalu Diogu II et al §
MEMORANDUM OPINION
Diogu Kalu Diogu II moves to quash an order in his chapter 13
case suspending him from practice before the Bankruptcy Court,
arguing the underlying state court disbarment order was void. The
Court denies the motion.
BACKGROUND
I. FACTUAL BACKGROUND
The Commission for Lawyer Discipline initiated disbarment
proceedings against Diogu on January 6, 2021. The case was before
Judge Norma Gonzales in the District Court of Fort Bend County, Texas.
On January 19, 2024, Diogu filed a motion to disqualify or recuse
Judge Gonzales under Texas Rule of Civil Procedure 18. See CX 13 at
6. Pursuant to Texas Rule of Civil Procedure 18a, Judge Gonzales
referred the motion to Judge Susan Brown of the Eleventh
Administrative Judicial Region of Texas. See ECF No. 20-2. On
January 24, Judge Brown denied recusal of Judge Gonzales. ECF No.
20-2.
On January 25, Diogu moved for disqualification or recusal of
Judge Brown and for reconsideration of the denial to recuse Judge
Gonzales. See CX 13 at 7.
On January 26, Judge Gonzales held a pre-trial conference.
PX54. Diogu notified Judge Gonzales about the pending motion in front
of Judge Brown. Judge Gonzales stated: “I’ve read the rules that allow
me to proceed, so I’m going to proceed this morning.” PX54 at 7.
On January 29, Judge Brown declined to recuse herself and
referred the motion to the Chief Justice of the Supreme Court of Texas.
CX 13 at 8.
Trial took place on January 30 in front of Judge Gonzales. Diogu
did not attend the trial. See ECF No. 20-1; see also CX 10 (Diogu did not
appear, “not withstanding [sic] having received notice and confirmation
at the pretrial hearing on January 26, 2024.”). The trial ended with a
jury verdict for disbarment and Judge Gonzales ordered Diogu
disbarred. CX 10.
II. PROCEDURAL BACKGROUND
Diogu is the chapter 13 debtor in case number 21-33581. The
Bankruptcy Court was informed of Diogu’s disbarment. The Southern
District of Texas automatically disbars an attorney from appearing
before it if the attorney was disbarred by the State of Texas. RULES 3
AND 4 OF THE RULES OF DISCIPLINE (made applicable to bankruptcy cases
by Bankruptcy Local Rule 1001-1(b)). On February 7, 2024, Chief
Bankruptcy Judge Eduardo Rodriguez entered an order suspending
Diogu from practicing before the Bankruptcy Court. Case No. 21-33581,
ECF No. 285.
A. Motion to Quash
Diogu moved to quash the order issued by Chief Judge Rodriguez,
arguing that Judge Gonzales’ order of disbarment is void. Chief Judge
Rodriguez recused, ECF No. 2, and the motion was referred to us.
Diogu argues the state court order of disbarment is void because
it was issued while his two motions were pending: the motion to recuse
or disqualify Judge Brown and the motion for reconsideration of Judge
Gonzales’ non-recusal. He reasons that, until his motions were ruled on,
Judge Gonzales did not have authority to hold the trial. As a result, he
argues, Judge Rodriguez could not recognize the allegedly void state
court disbarment order.
B. Other Motions
There are various pending motions before the Court.
Diogu moved to consolidate this case with his case in front of
Judge Lee Rosenthal. ECF No. 17.
There is an unsigned “Emergency Motion to Abate this
Proceeding Because of Judge Isgur’s Failure to Recuse or Disclose His
Relationship with the Resigned Judge David Jones or Michael
Durshmidst [sic].” ECF No. 13.
Diogu moved to withdraw his motion to quash and the
supplemental motion to quash. ECF No. 16.
Diogu also filed a motion to dismiss the “complaint against
Defendant, Chief Judge Eduardo V. Rodriguez.” ECF No. 22.
JURISDICTION
The District Court has jurisdiction over this proceeding under 28
U.S.C. § 1334(a). Venue is proper in this District pursuant to 28 U.S.C.
§ 1409. This is a core proceeding under 28 U.S.C. § 157(b)(2). The
dispute has been referred to the Bankruptcy Court under General Order
2012-6.
LEGAL STANDARD
Texas Rule of Civil Procedure 18a governs recusal and
disqualification of judges. Rule 18a(f)(2)(A) states: “If a motion is filed
before evidence has been offered at trial, the respondent judge must take
no further action in the case until the motion has been decided, except
for good cause stated in writing or on the record.” Tex. R. Civ. P.
18a(f)(2)(A).
DISCUSSION
I. MOTION TO QUASH
The crux of Diogu’s motion to quash is whether Judge Brown’s
order denying recusal was stayed by the filing of either of the motions.
A. Motion to Recuse or Disqualify Judge Brown
Rule 18a(f)(2)(A) applies to the respondent judge and stays any
further action in the case until the motion has been decided. When
Diogu moved to recuse Judge Gonzales, Judge Gonzales was the
respondent judge. Judge Gonzales properly referred the motion to
Judge Brown and did not take further action in the case. Once Judge
Brown decided the motion, denying Judge Gonzales’ recusal, the stay on
further action in the case was lifted.
Diogu’s argument that moving to recuse Judge Brown also works
to stay Judge Gonzales’ further action in the case misreads the statute.
Rule 18a(f)(2)(A) stays further action by the respondent judge, meaning
the judge against whom the motion is filed. Therefore, Judge Gonzales’
authority to proceed in the case was unaffected by the motion to recuse
Judge Brown.
B. Motion to Reconsider Non-recusal of Judge
Gonzales
Diogu argues that his motion for reconsideration of the denial of
recusal stayed the authority granted to Judge Gonzales by the denial.
Diogu has tried, and failed, to argue this point before. Diogu v.
Ratan-Aporn, 2015 WL 3982531 (Tex. App. June 30, 2015).
In Diogu v. Ratan-Aporn, Diogu filed a motion for reconsideration
of the denial of his motion to recuse the trial judge. He then argued that
the trial court erred in proceeding with the trial because his motion for
reconsideration was still pending.
The Court of Appeals held:
We likewise reject Diogu's argument that the trial court
should have stayed the trial court proceedings after he filed
a Motion for Reconsideration of the denial of his recusal
motion. He reasons that “his first Order denying the
Appellant's Motion to recuse/Disqualify was put on hold
and suspended until the motion for reconsideration was
decided.” Nothing in rule 18a or the case law interpreting
it supports Diogu's position that the trial court could not
proceed with the ongoing trial while a Motion for
Reconsideration was pending.
Id at *4.
Ultimately, the issue of whether Judge Gonzalez’s order was
correct must be left to the Texas appellate courts. We only decide the
much narrower question as to whether Chief Judge Rodriguez
inappropriately relied on a void order. The order was not void, and
Diogu offers no persuasive authority to the contrary.
II. OTHER MOTIONS
The motion to consolidate is mooted by Judge Rosenthal’s March
25, 2024, remand order. Case No. 4:24-cv-00779, ECF No. 9.
The unsigned motion is denied.
The motion to quash has been opposed. See ECF Nos. 6, 14 & 15.
Federal Rule of Civil Procedure 41(a)(1)(A)@) prohibits withdrawal of an
opposed action. The motion to withdraw is denied.
The motion to dismiss has no basis. There is no complaint against
Chief Judge Rodriguez in this case. The motion to dismiss is moot.
CONCLUSION
A separate order will be issued.
SIGNED 04/03/2024
rr
_S/—4—
Marvin Isgur
United States Bankruptcy Judge
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