United States District Court, D. Colorado
ORDER DENYING PETITION
BROOKE JACKSON UNITED STATES DISTRICT JUDGE
September 8, 2017 petitioners Galen LeMar Amerson and Frances
Moorer Scott filed a Petition for Mandamus seeking an order
directing the Clerk of the United States Bankruptcy Court for
the District of Colorado to transfer that court's files
to this Court for purposes of a de novo review of certain
orders of the bankruptcy court. Petitioners cite Bankruptcy
Rule 5011-3(a)(3). There is no such rule, either in the
Federal Rules of Bankruptcy Procedure or in the Local
Bankruptcy Rules of the United States District Court for the
District of Colorado. I deem the Petition, in substance,
either to seek a withdrawal of the reference pursuant to
Bankruptcy Rule 5011(a) and Local Bankruptcy Rule 5011-1 or
an appeal to the district court pursuant to Bankruptcy Rule
bankruptcy court's Order on Pending Motions issued July
13, 2017 summarizes the history of this matter. Bankruptcy
Case No. 12-17245-KHT, Doc. No. 305 (also attached to the
pending Petition). In January 2012 a gentleman by the name of
Seale A. Moorer executed a will in the state of Florida.
Petitioner Frances Moorer Scott is the daughter of Mr.
Moorer, and Petitioner Galen LeMar Amerson is Ms. Scott's
husband. A month after the will was executed Mr. Moorer died.
Two months later Mr. Amerson and Ms. Scott filed a voluntary
Chapter 7 bankruptcy petition in the United States Bankruptcy
Court for the District of Colorado. Id. at 2.
Amerson and Ms. Scott did not disclose Mr. Moorer's death
or Ms. Scott's anticipated inheritance in their
bankruptcy case. Ms. Scott did, however, file a suit in
Florida to contest the will. Mr. Amerson and Ms. Scott did
not inform the bankruptcy court or the Trustee of that suit
until sometime in 2013. However, upon learning of the Florida
suit, the Trustee reopened the Chapter 7 proceeding and began
to participate in the Florida case on behalf of the
bankruptcy estate. Mr. Amerson and Ms. Scott unsuccessfully
petitioned the bankruptcy court to order the Trustee to
abandon the estate's interest in the will contest, and on
July 14, 2014 the bankruptcy court approved the Trustee's
settlement of the Florida case. Id. at 2-3. The
bankruptcy court refers to that approval as the
“Settlement Order.” Id. at 3.
Amerson and Ms. Scott at that time had the right to appeal
the Settlement Order either to this Court or to the BAP. 28
U.S.C. § 158(a)(1), (b)(1). See Bankruptcy
Rules 8001-8005. Represented by counsel Edward Levy they
elected to appeal to the BAP. However, that court affirmed
the Settlement Order, holding that Ms. Scott's interest
under her father's will and in the will contest of that
will were property of Ms. Scott's bankruptcy case.
Bankruptcy Case No. 12-17345, Doc. No. 305 at 3. See In
re Galen Lemar Amerson, 2015 WL 5162763 at *9. Mr.
Amerson and Ms. Scott, still represented by Mr. Levy, then
appealed to the United States Court of Appeals for the Tenth
Circuit, which affirmed the decision of the BAP. No.
12-17345, Doc. No. 305 at 3. See In re Amerson, 839
F.3d 1290 at 1301. Mr. Amerson and Ms. Scott petitioned for a
writ of certiorari to the United States Supreme Court, which
denied the petition just two weeks ago, sub nom Scott,
Frances M. v. King, Dennis W., No 16-1429, 2017 WL
2362655 (Oct. 2, 2017).
the petition for a writ of certiorari was pending Mr. Amerson
and Ms. Scott filed the several motions in the bankruptcy
court which were the subject of that court's Order on
Pending Motions. The bankruptcy court denied their motion
challenging attorney Levy's compensation. Bankruptcy Case
No. 12-17345-KHT, Doc. No. 305 at 4. The court denied their
motion seeking compensation from the Trustee for the loss of
Ms. Scott's inheritance, finding that it was an
impermissible collateral attack on the Settlement Order.
Id. at 5-6. Put another way, the court found that it
was impermissible attempt to relitigate issues that had
already been addressed in the Settlement Order and on appeal
of that order to the BAP and the Tenth Circuit.
that in the same order the bankruptcy court addressed
arguments advanced by Mr. Amerson and Ms. Scott concerning
the “Barton doctrine, ” which prevents in some
circumstances the assertion of claims against the trustees
for acts committed while acting in their official capacity.
Id. at 5. The court also addressed Mr. Amerson and
Ms. Scott's “Stern Motion, ” in
which they asserted that the Settlement Order was not a final
order, and that the bankruptcy court lacked jurisdiction of
enter it. I mention the Barton doctrine and the
Stern motion because those same issues are mentioned
again in the pending Petition. The Barton doctrine matter is
moot. To the benefit of Mr. Amerson and Ms. Scott, the
bankruptcy court did not rely on that doctrine. Id.
The Court rejected the Stern motion, finding that it
was an attempt to relitigate issues already decided by that
court and affirmed by the BAP and the Tenth Circuit.
Id. at 6-7. As indicated supra n. 1, Mr.
Amerson and Ms. Scott moved for reconsideration. Bankruptcy
Case No. 12-17345-KHT, Doc. No. 307. The bankruptcy court
denied Mr. Amerson and Ms. Scott's motion for
reconsideration on August 1, 2017. Id., Dec. No.
extent that the pending Petition is an appeal from the
bankruptcy court's order of July 13, 2017 and its denial
of reconsideration on August 1, 2017, it appears to be
untimely under Bankruptcy Rule 8002(a)(1). See supra
n.1. But regardless whether it is an appeal, a motion to
withdraw the reference, or something else, the substance is
that Mr. Amerson and Ms. Scott, having struck out in the
bankruptcy court, the BAP, the Tenth Circuit, and even the
United States Supreme Court, are looking to this Court as the
last (or latest) port in the storm. Unfortunately, there is
nothing that this Court can or will do. The issues have been
fully litigated and decided.
reasons given in this order, the Petition is denied and the
matter is dismissed with prejudice.
 As discussed later in this order, on
July 13, 2017 the bankruptcy court denied several motions
filed by Mr. Amerson and Ms. Scott, a major issue being their
attempt to relitigate issues concerning a previous bankruptcy
court order dubbed the “Settlement Order.”
Bankruptcy Case No. 12-17345-KHT, Doc. No. 305. Mr. Amerson
and Ms. Scott moved for reconsideration. Doc. No. 307. The
court denied the motion on August 1, 2017. Doc. No. 310. Mr.
Amerson and Ms. Scott filed a Notice of Appeal on August 16,
2017. Doc. No. 314. On August 18, 2017 the BAP issued an
order to show cause by August 31, 2017 as to why the appeal
should not be dismissed for lack of jurisdiction. Doc. No.
316. The order noted that an appeal was due within 14 days
after the bankruptcy court's denial of the motion for
reconsideration (rehearing), but the notice of appeal was
filed on the 15th day. On September 1, 2017 the BAP dismissed
the appeal for failure to prosecute. Doc. No. 318. On October
10, 2017 Mr. Amerson and Ms. Scott filed an “Amended
Notice of Appeal” in which they attempted to clarify
that they wished to appeal to this Court, not to the
 Essentially the same background can be
found in an order of the United States Bankruptcy Appellate
Panel of the Tenth Circuit, In re Galen Lemar
Amerson, BAP No. CO-14-045, 2015 WL 5162763 (Sept. 2,
2015) (unpublished) and in an order of the United States
Court of Appeals for the Tenth Circuit, In re Galen Lemar
Amerson,839 F.3d ...