656 F.Supp. 1138 (1987)
ALCAN ALUMINUM CORPORATION, Plaintiff,
v.
LYNTEL PRODUCTS, INC., Brian C. Egan, Honorable George A. Higgins, Judge, Cook County Circuit Court, Defendants.
No. 85 C 10006.
United States District Court, N.D. Illinois, E.D.
March 27, 1987.
Darlene A. Vorchek, Sidley & Austin, Chicago, Ill., Lawrence A. Salibra II, Peter D. Miller, Gorden P. Becker, Alcan Aluminum Corp., Cleveland, Ohio, for plaintiff.
George J. Cotsirilos, Robert M. Stephenson, Matthew F. Kennelly, Cotsirilos & Crowley Ltd., Chicago, Ill., for respondents, Lawrence Salibra II, Peter Miller, and Gorden Becker.
Terry McDonald, Patrick J. Agnew, Chicago, Ill., for defendants.

MEMORANDUM
LEIGHTON, Senior District Judge.
Judgment was entered against Alcan Aluminum Corporation in the Circuit Court of Cook County for breach of contract and, having appealed in the courts of Illinois, it filed this civil rights suit seeking a declaration that the judgment was null and void and an injunction restraining its enforcement. The following is the factual background of this controversy.

*1139 I
Alcan was sued by Lyntel Products for breach of contract; and after a bench trial presided over by Judge George A. Higgins, a judgment was entered against it for $100,000. Alcan appealed to the appellate court of Illinos under various legal theories. The court reversed and remanded the case to Judge Higgins, holding that liability should not have been imposed on Alcan without a determination whether payment of front money was a condition precedent to the formation of the contract. Lyntel Products Inc. v. Alcan Aluminum Products Corp., 107 Ill.App.3d 176, 63 Ill.Dec. 4, 437 N.E.2d 653 (1st Dist.1981).
On remand, Alcan requested an evidentiary hearing which it claimed was necessary for the record. Judge Higgins denied Alcan's motion and made the required factual finding on the basis of his recollection of the case. In his findings he stated that prior to imposing liability on Alcan, he had weighed all the evidence and "did then and does now determine that the payment of front money by plaintiffs to defendants was not a condition precedent to the formation of their contract." Lyntel Products Inc. v. Alcan Aluminum Corp., No. 75 L 11387 (Cir.Ct. Cook Co., Ill.; February 25, 1983). Accordingly, he again entered judgment for Lyntel.
Alcan appealed to the appellate court of Illinois, this time claiming as one of its contentions that the trial court erred by entering judgment without holding a full hearing on whether the payment of front money was a condition precedent to the formation of the contract. The appellate court, without an opinion, affirmed Judge Higgins' decision, holding that his failure to hold an evidentiary hearing was not error. Lyntel Products Inc. v. Alcan Aluminum Corp., No. 83-729, Rule 23 Order at 5 (Ill.Ct.App. Dec. 24, 1984) [132 Ill. App.3d 1159, 98 Ill.Dec. 836, 494 N.E.2d 958 (table)]. Alcan asked for rehearing which was denied; it then petitioned the Supreme Court of Illinois for leave to appeal, which was also denied. No petition for a writ of certiorari from the Supreme Court was filed.
Alcan then instituted this suit, alleging violation of its constitutional rights. In Count I of its amended complaint[1] it alleged that the judgment entered against it, based on a factual finding that was made without an evidentiary hearing, was a denial of due process under the Fourteenth Amendment. In Count II, it alleged that the judgment imposed was a denial of due process in violation 42 U.S.C. § 1983.[2] Alcan sought a judgment declaring that the state court judgment was null and void and a preliminary and permanent injunction restraining enforcement and execution of that judgment.
On June 13, 1986, this court granted defendants' motion to dismiss the suit with prejudice, concluding that it lacked subject matter jurisdiction over Alcan's claim, one which in essence sought to relitigate issues that had been adjudicated against it in the state court. Alcan Aluminum Corp. v. Lyntel Products Inc., No. 85 C 10006 (N.D. Ill. June 13, 1986) [Available on WEST-LAW, DCTU database]. In its opinion, the court held that Judge Higgins was clearly an improper party to this suit; noting that he had simply entered judgment in a case where he had jurisdiction over the parties and the subject matter. Based on these considerations, on its own motion, this court entered a rule against Lawrence A. Salibra II, Peter D. Miller and Gordon P. Becker, attorneys for Alcan,[3] to show *1140 cause why, pursuant to Rule 11, Fed.R. Civ.P., they should not be ordered to pay costs and attorneys' fees each defendant incurred in procuring dismissal of this case and $15,000 into the court's registry. In issuing the rule, the court determined that Alcan's suit had no basis in law; and that this court's dismissal of the suit was based on well known principles of federal jurisdiction which "are known by competent attorneys generally, or which any prudent lawyer can ascertain." Id. at 11.

II
Now before the court is respondents' return to the rule.[4] They argue that Rule 11 sanctions are appropriate only where the pleader has no plausible good faith argument for his view of the law. They contend that District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983), provided a plausible good faith argument that this court had subject matter jurisdiction over the complaint attacking the constitutionality of state court procedures. They assert that the claim that state court rules and procedures denied Alcan procedural due process is comparable to the constitutional claim raised in Feldman over which the Supreme Court found federal district courts have jurisdiction, and that the constitutionality of these procedures can be adjudicated independently from the merits of the state court suit. They insist that federal law permits a party to a state suit to later attack the procedures with constitutional challenges not raised in the state suit.
Judge Higgins has responded. He was the only defendant named in the original complaint and one of the defendants named in the amended complaint. The only action that he took which respondents presumed made him a proper defendant to this suit was entering judgment against respondents' client in the state court proceedings. In his response, he argues that the conclusions reached by this court in dismissing the complaint show that it was not based on a plausible view of the law and was contrary to well established precedent. He asserts that Rhoades v. Penford, 694 F.2d 1043 (5th Cir.1983), relied on by Alcan in bringing suit, was rejected by this court. At the very least, he argues, respondents should have dismissed him from the suit once Lyntel Products was made a defendant. He contends that sanctions may be imposed when a plaintiff sues without sufficient basis to include a party as a defendant; and where a litigant attempts to use the Civil Rights Act to avoid a state court judgment against it. He claims Alcan's suit was contrary to established precedent and was therefore devoid of any reasonable inquiry as to the legal merits of the claim. Thus, he concludes he is entitled to expenses incurred in securing dismissal of this suit.
Brian C. Egan has also responded. Respondents named him as a defendant in the amended complaint when he, along with Lyntel Products Inc., sought to enforce the state court judgment. He argues that the only allegations against him in the suit were that he availed himself of the state courts to obtain a judgment and that these allegations presented no ground for federal relief. He contends there was no constitutional issue in this case and respondents' action was merely an attempt to relitigate in federal court an adverse ruling by the state court. He asserts that the question whether refusal of the state trial judge to hear evidence on remand was proper is *1141 simply not a constitutional issue; and consequently, this suit was not well grounded in fact or warranted by existing law. Therefore, he argues he is entitled to fees and costs pursuant to Rule 11.
In reply, respondents argue that this court recognized the proposition of law for which the Rhoades decision stood, but rejected it and held that the allegations of the original and the amended complaint failed to state a claim for deprivation of due process. Thus, respondents assert this court accepted the theory of law under which this case was filed but concluded that the allegations of the complaint failed to state a constitutional claim. For this reason, they contend that imposition of sanctions is inappropriate in this case.

III
Under Rule 11, Fed.R.Civ.P., a lawyer has a duty to limit litigation to contentions well grounded in fact and warranted by existing law, or a good faith argument for its extension or modification. In re TCI Ltd., 769 F.2d 441, 445 (7th Cir.1985). Under the 1983 amendment to the rule, the requirement of bad faith has been eliminated; the standard is now an objective one of reasonableness under the circumstances. Rodgers v. Lincoln Towing Service, Inc., 771 F.2d 194, 205 (7th Cir.1985). Sanctions are proper "where a competent attorney after reasonable inquiry, must say a claim was destined to fail." Zick v. Verson Allsteel Press Co., 623 F.Supp. 927, 932 (N.D.Ill.1985).
Since the rule was amended, the court of appeals for this circuit has not hesitated to impose sanctions to discourage groundless litigation. See e.g., Dreis & Krump Mfg. Co. v. International Ass'n of Machinists, 802 F.2d 247 (7th Cir.1986); Thornton v. Wahl, 787 F.2d 1151 (7th Cir.1986); In re TCI Ltd., 769 F.2d 441 (7th Cir.1985). It has imposed sanctions on its own motion to "remind counsel that they may not make assertions of law for which there is no support," Thornton, 787 F.2d at 1153, and has held it is an abuse of discretion for the district court to decline to impose sanctions in appropriate circumstances. Dreis, 802 F.2d at 255. In Dreis, the court noted:
"It is human nature to crave vindication of a passionately held position even if the position lacks an objectively reasonable basis in the law. But the amended Rule 11 makes clear that he who seeks such vindication in such circumstances and fails to get it must pay his opponent's reasonable attorney's fees ... [F]or such conduct the law authorizes sanctions that this court will not hesitate to impose." Id.

It is under this standard then, that respondents' conduct must be assessed.
At the outset, the court notes that Rhoades v. Penford, 694 F.2d 1043 (5th Cir.1983), relied on by respondents in bringing this suit, has never been followed by any court. Contrary to respondents' assertions, Rhoades was decided two months prior to District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983) and was thus quickly outdated. The standard as to when a district court has subject matter jurisdiction over a claim attacking the constitutionality of a state procedure or rule became that announced in Feldman. Under Feldman, this court does not have jurisdiction over actions in which the constitutional claims presented are "inextricably intertwined" with a state court judgment. Id. at 486-87, 103 S.Ct. at 1316-17. It is this precedent, and not Rhoades, that respondents, as well as this court, were bound to follow.[5]
Simple research into post-Feldman case law would have revealed to respondents the total lack of support for their action in filing this suit. Hagerty v. Succession of Clement, 749 F.2d 217 (5th Cir.1984), cert. denied, ___ U.S. ___, 106 S.Ct. 333, 88 L.Ed.2d 317 (1985), is but one example that *1142 should have served as an indication to respondents that Rhoades was no longer good law in the wake of Feldman.
In Hagerty, appellant brought a § 1983 action alleging denial of his due process rights by the state trial judge's refusal to grant a continuance in the state court suit contesting his aunt's will. When the trial judge denied his fourth continuance, he appealed to the state appellate court, arguing the trial court abused its discretion in refusing to grant the continuance. The state appellate court held there was no abuse of discretion. When the state supreme court denied the petition for a writ of certiorari, he brought an action under 42 U.S.C. § 1983 against the executor of the estate and the state trial judge, among others. The court of appeals affirmed the district court's dismissal of the suit, noting that appellant attempted to use the § 1983 action to attack the validity of the state trial court's judgment, "notwithstanding the well-settled rule that a plaintiff may not seek reversal of a state court judgment simply by casting his claim in the form of a civil rights action." Id. (citing Sawyer v. Overton, 595 F.2d 252 (5th Cir.1979)).
The court held that appellant's constitutional claims, if not identical, were "inextricably intertwined" with the state court's judgment and were therefore impermissible under Feldman. The court concluded that the district court properly dismissed the suit for lack of subject matter jurisdiction. Id. see also Reed v. Terrell, 759 F.2d 472 (5th Cir.), cert. denied, ___ U.S. ___, 106 S.Ct. 343, 88 L.Ed.2d 290 (1985); Anderson v. State of Colorado, 793 F.2d 262 (10th Cir.1986). In addition, the Hagerty court awarded attorney's fees to appellees, holding that the appeal was frivolous in that "Hagerty's legal contentions lack any arguable merit, and are long-settled against him." Id. (citations omitted).[6]
More recently, in a similar case, the fifth circuit upheld the district court's imposition of sanctions under Rule 11 and imposed additional sanctions pursuant to F.R.A.P. 38. Hale v. Harney, 786 F.2d 688 (5th Cir.1986). In Harney, appellant brought suit pursuant to § 1983 against a state judge and others, contending they conspired to deprive him of his constitutional rights in a divorce proceeding in the state courts. The fifth circuit held that the suit was inextricably intertwined with the state court decree of divorce and that much of the relief sought by appellant involved a modification of that decree. In upholding the district court's imposition of sanctions under Rule 11 the court stated:
[A] "reasonable inquiry" could not have led counsel to believe the other allegations of the pleading to be wellgrounded in law, asserting as they do a cause of action against the state judge which had been legally hopeless for over one hundred years and one against the other defendants that had been so at least since the Supreme Court's 1983 decision in Feldman. Id. at 692.
Texaco Inc. v. Pennzoil Co., 784 F.2d 1133 (2d Cir.1986), prob. juris. noted, ___ U.S. ___, 106 S.Ct. 3270, 91 L.Ed.2d 561 (1986), relied on by respondents as support for their position, is clearly distinguishable. In Texaco, appellant obtained a $11.12 billion judgment against appelleee in the Texas state court. Under the Texas Rules of Civil Procedure, in order to stay execution of judgment pending appeal, Texaco would *1143 be required to post a supersedeas bond payable to Pennzoil in at least the amount of the judgment. Texaco could not meet the bond requirement and filed suit in district court alleging that the Texas judgment and enforcement of it through the Texas lien and supersedeas bond provisions violated its constitutional rights. Id. at 1136-37.
The second circuit held that the Feldman doctrine did not bar a federal court from exercising jurisdiction over Texaco's claims that the Texas bond provisions denied its due process and equal protection rights, concluding that these claims were not inextricably intertwined with the state court judgment. First, the court reasoned, this was not a collateral attack on the Texas judgment. Second, it noted that Texaco did not have a fair opportunity to obtain a timely final resolution of the claims in the Texas courts and the United States Supreme Court before it would be irreparably harmed by the Texas bond provisions.
The court was careful to note that its decision was a narrow one, and was based in part, "upon the extraordinary circumstances of this case, which are unlikely ever again to recur: a private civil money judgment in an amount unprecedented in the annals of legal history ... and the likelihood that immediate enforcement of the Texas lien and bond provisions would lead to irreversible destruction of the debtor before its appeal could be heard on the merits, thus robbing its right of appeal of any meaning and effect." Id. at 1157.
As can be seen from this recitation, Texaco involved unique facts that virtually preclude generalizations. First, the attack on the mandatory lien provisions in Texaco arguably was not inextricably intertwined with the state court judgment. Second, Texaco essentially would be deprived of its right to appeal by enforcement of the bond provisions. Here, no rational argument could be made that Alcan's claims were not inextricably intertwined with the state court judgment; and Alcan was not deprived of its right to appeal. Thus, Texaco cannot be said to provide support for respondents' position.[7]

IV
An even more fundamental problem with this suit, although not relied on by the court in dismissing the case, is that when respondents filed it naming only Judge Higgins as a defendant, there was no case or controversy. Although an injunctive suit against a judge is not prohibited when the suit aims at restraining the judge from depriving persons of their federal rights, Pulliam v. Allen, 466 U.S. 522, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984), Article III imposes limitations on the availability of such relief. Id. at 538 n. 18, 104 S.Ct. at 1979 n. 18 (citing In re Justices of the Supreme Court of Puerto Rico, 695 F.2d 17, 21 (1st Cir. (1982)). In Justices, the first circuit held judges are not proper defendants in § 1983 suits challenging the constitutionality of state statutes. The judge is simply a neutral adjudicator; his position is not adverse to that of a plaintiff. A state judge is therefore not a proper defendant in such a suit because he has no stake in upholding the challenged practice. E.g., R.W.T. v. Dalton, 712 F.2d 1225, 1232-33 (8th Cir.), cert. denied, 464 U.S. 1009, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983).[8]
Judge Higgins merely entered judgment against Alcan; he had no interest in enforcing the judgment or upholding its validity. There is no dispute that the judgment was rendered in adversary proceedings that were within the scope of authority granted to the state court judge. As such, respondents' remedy was through the Illinois appellate court and, ultimately, review by the *1144 United States Supreme Court. Id., see also Hagerty, 749 F.2d at 221 (state court judge properly dismissed).
The court finds from the record that the sole reason respondents filed this suit was to harass Lyntel and prevent collection of the judgment. Based on these considerations, the court concludes that the circumstances of this case warrant the imposition of sanctions. "Any court can reasonably expect an attorney to be at least somewhat familiar with the appellate process and to know that appeals to unfavorable decisions are not made through independent lawsuits against the judicial officer rendering such decisions." Affeldt v. Carr, 111 F.R.D. 337, 340 (N.D.Ohio 1986). Respondents had no objective basis to believe this suit was warranted by existing law and made no argument for a good faith extension or modification of existing law.
Accordingly, the Rule to Show Cause is made absolute; defendants are entitled to an award of attorneys' fees and expenses occasioned by respondents' baseless suit. The award is assessed against Lawrence A. Salibra II, Peter D. Miller and Gordon P. Becker, jointly and severally, as attorneys of record for Alcan Aluminum Corporation. Defendants are asked to submit a statement, supported by an appropriate schedule under oath, detailing the amount of fees and costs sought. Respondents will be given an opportunity to question or contest the reasonableness of defendants' request.
Further, the court imposes on Lawrence A. Salibra II, Peter D. Miller, and Gordon P. Becker, jointly and severally, a $15,000.00 fine payable to the clerk of this court for deposit into the court's registry, as a sanction for respondents' abuse of the judicial process in filing this suit. Itel Containers Int'l Corp. v. Puerto Rico Marine Mgt., Inc., 108 F.R.D. 96, 106 (D.N.J. 1985); Olga's Kitchen of Hayward, Inc. v. Papo, 108 F.R.D. 695, 711 (E.D.Mich.1985).[9]
So ordered.
NOTES
[1]  Alcan filed its original complaint naming only Judge Higgins as a defendant. Approximately one month later, prior to the filing of a responsive pleading, it amended the complaint to add as defendants Lyntel Products and Brian C. Egan, who were plaintiffs in the state court suit.
[2]  As noted in this court's memorandum of June 13, 1986, plaintiff's claim of a "violation of 42 U.S.C. § 1983" is inaccurate. Section 1983 does not create any substantive rights which may be violated, but merely provides remedies for deprivations of rights established elsewhere. City of Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 2432, 85 L.Ed.2d 791 (1985) (citing Baker v. McCollan, 443 U.S. 137, 140, 144 n. 3, 99 S.Ct. 2689, 2692, 2694 n. 3, 61 L.Ed.2d 433 (1979)).
[3]  Lawrence A. Salibra II signed the complaint; the names of Mr. Salibra, Peter D. Miller and Gordon P. Becker were typed beneath the signature. In issuing the rule on all three attorneys, this court implicitly determined that the three acted together.
[4]  Respondents do not dispute the court's implicit determination that Messrs. Salibra, Miller and Becker acted together, with Mr. Salibra signing the complaint. The court respectfully disagrees with the ruling of the fifth circuit in Robinson v. National Cash Register Co., 808 F.2d 1119 (5th Cir.1987), holding that an attorney must sign a document in order to have Rule 11 sanctions imposed on him. We instruct jurors that whatever a person is legally capable of doing he can do through another person by causing that person to perform the act. E. Devitt & C. Blackmar, Federal Jury Practice and Instructions, § 12.07 (3d ed. 1977); Committee on Federal Criminal Jury Instructions of the Seventh Circuit, Federal Criminal Jury Instructions of the Seventh Circuit, § 5.07 (1980).
[5]  Respondents attempt to mischaracterize this court's ruling dismissing the suit as a dismissal for failure to state a claim, rather than dismissal based on lack of subject matter jurisdiction. This conclusion can only be reached by reading portions of this court's memorandum of June 13, 1986 completely out of context. The court's reliance on Feldman makes clear that this suit was dismissed for lack of subject matter jurisdiction.
[6]  Contrary to respondents' assertions, their failure to raise their due process claim in the state court does not "preserve" their right to raise it here. The Court in Feldman noted that "a petitioner's failure to raise his constitutional claims in state court does not mean that a United States District Court should have jurisdiction over the claims". 460 U.S. at 482 n. 16, 103 S.Ct. at 1315 n. 16; see also Lynk v. LaPorte Superior Court No. 2, 789 F.2d 554, 564 (7th Cir.1986); Reed v. Terrell, 759 F.2d 472, 473 n. 3 (5th Cir.1985); cf. Fellowship of Christ Church v. Thorburn, 758 F.2d 1140, 1144 (6th Cir.1985). Thus, even a general attack on the constitutionality of a statute or rule may be barred by res judicata or collateral estoppel principles. But see Texaco Inc. v. Pennzoil Co., 784 F.2d 1133, 1134 (2d Cir.1986), prob. juris. noted, ___ U.S. ___, 106 S.Ct. 3270, 91 L.Ed.2d 561 (1986) (federal review of issues a party could have raised in state court proceeding but chose not to are not barred).
[7]  It must be noted that Texaco was decided after respondents filed this suit. Since Rule 11 mandates a pre-filing inquiry, this case cannot provide support for respondents' position when they filed suit.
[8]  Like this court, both the first circuit in Justices and the eighth circuit in Dalton declined to base their holding on a lack of case or controversy under Article III. Justices, 695 F.2d at 22-23; Dalton, 712 F.2d at 1232 n. 10.
[9]  By issuing the rule to show cause affording respondents an opportunity to answer and request a hearing, the court is confident that it has satisfied the procedural protections noted by some courts as necessary when a fine is imposed under Rule 11 as punishment. See Donaldson v. Clark, 786 F.2d 1570, 1576-77 (11th Cir.1986); Cotner v. Hopkins, 795 F.2d 900, 903 (10th Cir.1986).


18‐3633‐bk
Levine v. Trumbull (In re: Timothy Stallmer)

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).
A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT
ON ANY PARTY NOT REPRESENTED BY COUNSEL.

      At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 30th day of October, two thousand nineteen.

        PRESENT: AMALYA L. KEARSE,
                         BARRINGTON D. PARKER,
                         RICHARD J. SULLIVAN,
                                 Circuit Judges.
        ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐

        IN RE: TIMOTHY STALLMER,

                                 Debtor.
        ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐

        PAUL A. LEVINE, CHAPTER 7 TRUSTEE,

                                  Plaintiff‐Appellant,
                      v.                                               No. 18‐3633‐bk

      CHRISTOPHER S. TRUMBULL, JENNIFER
      A. TRUMBULL, FATIMA LOBO,

                               Defendants‐Appellees.
      ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐

      FOR APPELLANT:                                   JAVIER J. MENDEZ (Paul A. Levine,
                                                       on the brief), Lemery Greisler, LLC,
                                                       Albany, NY.

      FOR APPELLEES:                                   CHRISTOPHER A. PRIORE (Peter A.
                                                       Lauricella, on the brief), Wilson, Elser,
                                                       Moskowitz, Edelman & Dicker LLP,
                                                       Albany, NY.

      Appeal from a judgment of the United States District Court for the Northern

District of New York (Mae A. D’Agostino, Judge).

      UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

      Paul A. Levine, Chapter 7 trustee for debtor Timothy Stallmer (“Debtor”),

appeals from an order of the district court (D’Agostino, J.) affirming the bankruptcy

court’s grant of summary judgment in favor of Defendants‐Appellees Christopher

Trumbull, Jennifer Trumbull, and Fatima Lobo. In the underlying bankruptcy

proceeding, the Trustee filed a complaint seeking to quiet title to property located

at 170 Glass Lake Road in Averill Park, New York (“the Property”), claiming, inter
                                                  2
alia, that the deed under which Debtor conveyed the Property (“the RFL deed”) to

Richard F. Lease – who subsequently conveyed the Property and assigned a

mortgage on the Property to Defendants – was executed under false pretenses and

thus void.   Specifically, the Trustee alleged that Debtor’s wife, Marcia Doyle,

tricked Debtor into executing the RFL deed by asking him to sign documents for

the stated purpose of obtaining a loan, without telling him that one of the

documents would in fact convey title in the Property to Lease. The bankruptcy

court (Littlefield, J.) granted Defendants’ motion for summary judgment,

concluding that the RFL deed was not executed under the false pretense that it was

a different type of document and thus void, but instead was, at most, fraudulently

induced and thus voidable. The Trustee appealed under 28 U.S.C. § 158(a)(1) to

the district court, which affirmed. We assume the parties’ familiarity with the

underlying facts and the record of prior proceedings, to which we refer only as

necessary to explain our decision to affirm.

      On appeal from the district court’s review of a bankruptcy court decision,

“[w]e look through the district court to the bankruptcy court’s decision, and review

its analysis of law de novo.” In re DBSD N. Am., Inc., 634 F.3d 79, 94 (2d Cir. 2011).

                                          3
“It is axiomatic, however, that we may affirm on any grounds for which there is a

record sufficient to permit conclusions of law, including grounds not relied upon

by the [bankruptcy] court.” Chesley v. Union Carbide Corp., 927 F.2d 60, 68 (2d Cir.

1991) (internal quotation marks and citation omitted).             In reviewing the

bankruptcy court’s grant of summary of judgment, we must determine “whether,

viewing the record in the light most favorable to the non‐movant, . . . any genuine

and disputed issue of material fact underlies the bankruptcy court’s decision.” In

re Treco, 240 F.3d 148, 155 (2d Cir. 2001). “Summary judgment is appropriate if

‘there is no genuine dispute as to any material fact’ and ‘the movant is entitled to

judgment as a matter of law.’” Ennio Morricone Music Inc. v. Bixio Music Grp. Ltd.,

936 F.3d 69, 71 (2d Cir. 2019) (quoting Fed. R. Civ. P. 56(a)); see also Fed. R. Bankr.

P. 7056 (providing that Fed. R. Civ. P. 56 applies in adversary bankruptcy

proceedings).

      On appeal, the Trustee argues that there are material issues of fact concerning

whether the RFL deed is void, rather than merely voidable. As the parties do not

dispute, New York law governs this question. See, e.g., Lockheed Martin Corp. v.

Retail Holdings, N.V., 639 F.3d 63, 69 (2d Cir. 2011). Under New York law, “[t]he

                                          4
difference . . . between a void deed and a voidable deed is important” because it

affects a party’s ability to quiet title against a subsequent bona fide purchaser.

Weiss v. Phillips, 65 N.Y.S.3d 147, 155 (App. Div. 2017). If a deed is void, “the law

deems that no transfer actually occurred” and thus the deed “does not pass title

and cannot be enforced even if title is later acquired by a bona fide purchaser.” Id.

As relevant here, a deed is void if it was executed under false pretenses – that is, if

the signer of the deed was “unaware of the nature of the instrument he or she was

signing, such as where the signer is illiterate, or blind, or ignorant of the alien

language of the writing, and the contents thereof are misread or misrepresented to

him by the other party, or even by a stranger.”1 Cash v. Titan Fin. Servs., Inc., 873

N.Y.S.2d 642, 645 (App. Div. 2009) (internal quotation marks and citation omitted).

In contrast, if the signer was aware that he was signing a deed, but was misled as

to the deed’s purpose, then the deed is deemed to be procured by fraudulent

inducement and is merely voidable. See Weiss, 65 N.Y.S.3d at 156. In that event,

a subsequent bona fide purchaser is protected under New York Real Property Law

1 Under New York law, a signature procured under false pretenses is tantamount to a
forged signature. See Weiss, 65 N.Y.S.3d at 155–56 (“Forged deeds and/or encumbrances
are those executed under false pretenses, and are void ab initio.”). Thus, we construe the
forgery and false‐pretenses arguments to raise the same issue on appeal.
                                            5
§ 266. See id.

      Here, the bankruptcy court concluded that there was no triable dispute that

the RFL deed “was the result of fraudulent inducement because the debtor stated

that he knew he was signing a deed but was unaware that the property would be

transferred to the Lease.” Special App’x at 7. The court based that conclusion in

part on the following sworn statement, which Debtor gave to the Albany County

District Attorney’s Office during a criminal investigation of Doyle in October 2014:

      One day Marcia called me to meet her in front of the Capitol and I met
      her. She wanted me to sign the deed to 170 Glass Lake Road Averill Park.
      The name of the person was Richard Lease and he was going to loan
      Marcia $10,000.00 and would hold the lease; [sic] deed. I found out
      later it was actually for the sale of the house.

App’x at 181 (emphasis added).         On appeal, the Trustee contends that this

statement does not unambiguously establish that Debtor knew he was signing a

deed at the time he signed it, particularly in light of his subsequent deposition

testimony that he “didn’t know [he] was signing a deed,” but instead “thought [he]

was signing a note of some sort and [] later learned that it was the deed.” App’x

at 461.    However, the Trustee’s attorney submitted an affirmation to the

bankruptcy court stating that “[Debtor]’s testimony is that he thought he was signing a

                                          6
deed because his wife needed a loan . . . .” App’x at 530 (emphasis added).

      But even if there were a genuine dispute over whether Debtor actually knew

he was signing a deed, any such dispute would not be “material,” since Doyle’s

false representations did not relieve Debtor of his obligation to read the three‐page

document. Under New York law, “[i]t is well settled that ‘a party is under an

obligation to read a document before he or she signs it, and a party cannot generally

avoid the effect of a document on the ground that he or she did not read it or know

its contents.’” Dasz, Inc. v. Meritocracy Ventures, Ltd., 969 N.Y.S.2d 653, 655 (App.

Div. 2013) (brackets omitted) (quoting Cash, 873 N.Y.S.2d at 645). As noted above,

this rule applies even where a party is misled as to the contents of the document,

unless that party has a valid excuse for not reading it, “such as where the signer is

illiterate, or blind, or ignorant of the alien language of the writing.” Cash, 873

N.Y.2d at 645 (rejecting, on summary judgment, plaintiffs’ claim that defendants

fraudulently procured a deed that one plaintiff signed without reading). Here, the

Trustee offers no valid excuse for Debtor’s failure to read the RFL deed, which: (1)

was titled “Bargain and Sale Deed, with Covenants against Grantor’s Acts;” (2)

stated that Debtor “does hereby grant and release unto [Richard Lease]” the

                                         7
Property; (3) further stated that Debtor “has duly executed this deed;” and (4)

included Debtor’s undisputed signature under the word “Grantor.” App’x at 37–

38. Further, the deed he signed was accompanied by an affidavit that he was

asked to sign – and did sign – titled “AFFIDAVIT FOR DEED IN LIEU OF

FORECLOSURE.” App’x at 172. On this record, we conclude that the RFL deed

is not void under New York law, and thus the bankruptcy court did not err in

granting Defendants’ motion for summary judgment.

      We find that the Trustee’s remaining arguments are without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                    FOR THE COURT:
                                    Catherine O’Hagan Wolfe, Clerk of Court

                                       8


192 P.3d 1185 (2008)
Roderick Renard DAVIDSON, Appellant,
v.
The STATE of Nevada, Respondent.
No. 48421.
Supreme Court of Nevada.
October 2, 2008.
*1186 Philip J. Kohn, Public Defender, and Sharon G. Dickinson, Deputy Public Defender, Clark County, for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; David J. Roger, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and Sandra DiGiacomo, Deputy District Attorney, Clark County, for Respondent.
BEFORE HARDESTY, PARRAGUIRRE and DOUGLAS, JJ.

OPINION
By the Court, DOUGLAS, J.:
In this appeal, we consider whether the district court can change a jury's verdict from not guilty to guilty for a criminal charge based on a purported clerical error after the jury has been discharged. We also address a clerical error in the judgment of *1187 conviction that precludes habitual criminal sentencing on one of the battery convictions.
Regarding the verdict, we conclude that the Double Jeopardy Clause prohibits the district court from changing the jury's verdict from not guilty to guilty for a criminal charge after the jury has been discharged, even if the change is only to correct a purported clerical error. Therefore, the district court in this case erred by changing the verdict for the robbery charge at issue from not guilty to guilty. Consequently, we reverse one of the robbery convictions.
Regarding the judgment and sentence for battery, we conclude that the judgment of conviction erroneously treats one of the battery convictions (count four) as a felony when the jury returned a finding of guilt for a misdemeanor on that count. As a result, the district court erred in imposing a habitual criminal sentence for that count because NRS 207.010 authorizes a habitual criminal sentencing enhancement for convictions of crimes involving fraud or intent to defraud, of petit larceny, or of a felony. We therefore remand for the district court to amend the judgment of conviction to show that count four is a misdemeanor and to impose a lawful sentence for that count.[1]

FACTS
The State charged appellant Roderick Renard Davidson with two counts of burglary, two counts of robbery, two counts of grand larceny auto, and two counts of battery with substantial bodily harm. These charges stemmed from two separate criminal incidents involving two victims, Robert Garvin and Rulon Spencer.
At the end of a consolidated jury trial for the charges arising from both of these criminal incidents, the jury deliberated and reached its verdict. In reading the jury verdict in open court, the district court clerk stated that the jury found Davidson guilty of burglary, guilty of robbery with the victim being 60 years of age or older, not guilty of grand larceny auto, and guilty of battery (but without substantial bodily harm) with regard to Garvin. As to the Spencer incident, the district court clerk read that Davidson was *1188 found not guilty of robbery, guilty of battery with substantial bodily harm, not guilty of grand larceny auto, and guilty of burglary.
After reading the verdict in open court, the district court clerk asked the jurors whether her reading of the verdict was accurate. All of the jurors responded affirmatively in unison. Defense counsel requested that the jurors be polled and the jurors individually affirmed the district court clerk's reading of their verdict. Inadvertently, only 11 of the 12 jurors were polled. Upon thanking the jurors for their service, the district court asked the jurors if they had any questions. One of the jurors asked a question about a matter not pertinent to this appeal. After the district court answered the juror's question, none of the other jurors posed any other questions. Thereafter the jury was discharged.
Nearly ten minutes after discharging the jury, the district court recommenced the trial proceedings in the presence of the State, defense counsel, and 10 of the 12 jurors. Davidson was not present at this recommencement. During this proceeding, the State informed the district court that it had approached the jurors after they had been discharged and asked them why they had not found Davidson guilty of robbery for the Spencer incident. Apparently, the jurors told the prosecutors that the district court clerk had incorrectly read the verdict as to that charge. One of the jurors also informed the prosecutors that she had not been polled.
Upon the district court's recall of the trial proceedings, the discharged jury foreperson informed the district court that he had accidentally mismarked the verdict form not guilty for the Spencer robbery and that he had subsequently remarked and initialed the verdict form to reflect a guilty finding for this robbery charge. The nine other discharged jurors who were also present agreed that the verdict form had been mismarked and that they had found Davidson guilty of robbery for the Spencer incident. They further indicated that the two missing jurors had also found Davidson guilty of robbery for the Spencer incident.
After allowing the ten jurors to exit the courtroom, the district court informed the prosecutors and defense counsel that they could submit written arguments as to whether the jury verdict could be changed under the circumstances posed in this case. Thereafter, at sentencing, the district court determined that the jury verdict could be changed and that it could adjudicate Davidson guilty of robbery for the Spencer incident.
During sentencing, the district court found that Davidson had three prior felonies, whereby the district court adjudicated Davidson as a habitual criminal. The court then sentenced Davidson under the "small habitual criminal statute"[2] for the three convictions (burglary, robbery, and battery) related to the Garvin incident. For each of those convictions, the district court sentenced Davidson to serve 60 to 240 months in prison, with the sentences to be served concurrently. As for the three convictions related to the Spencer incident, the district court sentenced Davidson under the "large habitual criminal statute."[3] For each of those convictions, the district court sentenced Davidson to serve life in prison with the possibility of parole after ten years, with the sentences to be served concurrently to each other but consecutively to the sentences for the convictions related to the Garvin incident. This appeal followed.

DISCUSSION

Double jeopardy claim
Davidson argues that the Double Jeopardy Clause[4] prohibited the district court from changing the verdict for the robbery charge stemming from the Spencer incident from not guilty to guilty after the jury had been discharged. Davidson contends that questioning by the prosecution tainted the jurors. The State responds that it was not unfair to correct the purported "clerical error" in the jury verdict, relying primarily *1189 on the Ninth Circuit Court of Appeals' decision in United States v. Stauffer.[5]
A claim that a conviction violates the Double Jeopardy Clause generally is subject to de novo review on appeal.[6] The Double Jeopardy Clause provides that no person "shall ... be subject for the same offence to be twice put in jeopardy of life or limb."[7] Similarly, under Article 1, Section 8(1) of the Nevada Constitution, "[n]o person shall be subject to be twice put in jeopardy for the same offense." As recognized by the United States Supreme Court, the Double Jeopardy Clause protects a defendant from being put in fear of a conviction after having been acquitted of an offense:
The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.[8]
Consistent with this underlying idea, the district court has the authority, before accepting a verdict and before discharging a jury, to send the jury back to correct clerical errors and mistakes in their verdict,[9] but the Double Jeopardy Clause does not allow the district court to enhance a verdict if the jury has been discharged because such action could compel the defendant to live in a continuing state of anxiety and insecurity that he or she later could be found guilty for crimes of which he or she had been acquitted. Therefore, a correction that eventually enhances a defendant's conviction must be undertaken before the jury has been discharged.[10]
In Stauffer, the verdict form had reflected convictions for "drug distribution conspiracy, Hawaii extortion, and travel counts," and it reflected an acquittal on "the Nevada extortion count."[11] "Post-verdict interviews of several jurors, initiated by [the defendant's] counsel, determined that the jury had made a clerical error."[12] "The jury apparently became confused concerning the numbering of the counts on their copy of the superseding indictment."[13] According to the jury, "they had intended to acquit [the defendant] on the Hawaii extortion count, and convict on the Nevada extortion count."[14] The district court subsequently "solicited affidavits from the jurors," and "[a]ll the jurors attested to the clerical error."[15] "At a final post-trial hearing, ... the [d]istrict [c]ourt switched the verdicts on the two extortion counts to correct the jury's mistake."[16] The United States Court of Appeals for the Ninth Circuit affirmed, concluding that the district court's correction of the verdict after the jury was discharged by switching it from acquittal to guilty, due to a clerical error made by the jury on the verdict form, did not violate *1190 double jeopardy.[17] In reaching its decision, the court concluded that the "district court did not alter the jury's verdict itself," but rather "corrected the verdict form to reflect the jury's true intent."[18]
The Stauffer decision is distinguishable from the instant appeal. Unlike Stauffer, only 10 of the 12 jurors responded (in court) as to the verdict being inaccurate; by not having all 12 of the jurors enter into sworn affidavits or respond in court, there could be no assurances that any change in the verdict was a product of the complete jury's true intent.[19] Further, the change in the verdict here enhanced Davidson's conviction, whereas the change in Stauffer did not increase or decrease Stauffer's convictions.[20]
In addition to the district court's error in amending the verdict after the jury had been discharged, the district court erred in basing the amendment on the statements of only the ten jurors who were present during the recommencement proceeding. Under Nevada law, a criminal case in district court must generally be decided by a 12-person jury,[21] and the verdict must be unanimous.[22] Here, there is doubt concerning whether there was a unanimous verdict regarding the challenged conviction. The district court clerk recited the verdict in open court. The jurors were then presented with at least three opportunities to object  when the district court clerk asked the jury as a whole whether her reading was accurate, when the jury was individually polled (which should not have precluded the unpolled juror from objecting), and when the district court thanked and asked the jurors if they had any questions. No juror raised any objection prior to speaking with the prosecution after they had been discharged. Therefore, despite the jury having been discharged, the district court could not have changed the verdict here without having all jurors present who unanimously agreed about the purported error.
Moreover, the district court erred in changing the verdict here because Davidson was not present at the recommencement proceeding when the jurors informed the district court about the purported error with the verdict. Thus, the district court's actions of having the jury report about the purported error without Davidson's presence and then later changing the verdict violated notions of due process, as Davidson was not present at a critical stage of his trial.[23]
Accordingly, we conclude that the district court was precluded from changing the verdict from not guilty to guilty for the robbery charge stemming from the Spencer incident.

Judgment and sentence on battery conviction
Davidson argues that the district court erred in increasing his sentence for count four under the small habitual criminal statute[24] because the jury returned a verdict for a misdemeanor on that count. In this respect, Davidson also indicates that the judgment of conviction contains a clerical error in that it identifies count four as a felony conviction rather than a misdemeanor conviction. We agree.
The record indicates that the jury found Davidson guilty of misdemeanor battery in count four. Despite that verdict, the judgment of conviction reflects a felony conviction for count four. The district court enhanced the sentence for that count under NRS 207.010(1)(a) after adjudicating Davidson as a habitual criminal based on three prior felony convictions.
Because Davidson did not object to being sentenced as a habitual criminal on the grounds that the district court erred in adjudicating him as a habitual criminal because *1191 count four was not a felony conviction, we review this issue for plain error.[25] Under plain error review, "this court has the discretion to address an error if it was plain and affected the defendant's substantial rights."[26] In addition, "an illegal sentence may be corrected at any time."[27]
NRS 207.010 allows the district court to enhance the sentence for certain types of offenses if it adjudicates the defendant as a habitual criminal. In particular, NRS 207.010(1)(a) allows for "small" habitual criminal sentencing of a person convicted of "[a]ny crime of which fraud or intent to defraud is an element, or of petit larceny, or of any felony" who has certain qualifying prior convictions. And NRS 207.010(1)(b) allows for "large" habitual criminal sentencing of a person convicted of "[a]ny felony" who has certain qualifying prior convictions. We conclude that although the statute allows the district court to enhance the sentence for each primary offense,[28] the primary offense must be a felony or, for purposes of the "small" habitual criminal statute, a petit larceny or a crime that includes fraud or intent to defraud as an element.
Because Davidson was convicted of a misdemeanor battery for count four and the charge did not involve an element of fraud or intent to defraud, the district court plainly erred when it increased the sentence for that count based on its adjudication of Davidson as a habitual criminal. Accordingly, we remand this matter for the district court to amend the judgment of conviction to reflect the misdemeanor conviction on count four and to impose a lawful sentence for that count.

CONCLUSION
The Double Jeopardy Clause prohibits the district court from changing the jury's verdict from not guilty to guilty for a criminal charge, even to correct a purported clerical error, after the jury has been discharged. The district court therefore erred in changing the jury's not guilty verdict on the Spencer robbery count to guilty. Additionally, as conceded by the State, the judgment of conviction contains an error identifying the battery conviction in count four as a felony, and the district court plainly erred in increasing the sentence for that conviction under the habitual criminal statute. Accordingly, we reverse the robbery conviction related to the Spencer incident and remand for the district court to amend the judgment of conviction and to impose a lawful sentence for count four. We affirm the judgment in all other respects.
We concur: HARDESTY and PARRAGUIRRE, JJ.
NOTES
[1]  Appellant also raises the following issues on appeal: (1) the district court erred in admitting his confession, inmate request/grievance forms, and identifications by the victims into evidence; (2) the district court violated his constitutional rights when it refused to sever his trial according to the counts related to each victim and then proceeded to sentence him as a habitual criminal; (3) the State failed to bring him to trial within the 60-day speedy trial period; (4) errors occurred during jury selection; and (5) cumulative error. We conclude that (1) Davidson's confession was voluntary and the police did not violate his constitutional rights in obtaining the statement, see Passama v. State, 103 Nev. 212, 214, 735 P.2d 321, 322-23 (1987); see also Dickerson v. United States, 530 U.S. 428, 433, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000); (2) the district court did not plainly err in admitting Davidson's inmate request/grievance forms and the admission did not violate Davidson's Sixth Amendment right to counsel, see NRS 48.045(2); Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); see also Shults v. State, 96 Nev. 742, 751, 616 P.2d 388, 394 (1980) (providing that under plain error review, even when the district court errs in receiving evidence, this court will not reverse where the complained of error did not affect the appellant's substantial rights); (3) the identification procedures were not suggestive or unduly tainted, see Bias v. State, 105 Nev. 869, 871, 784 P.2d 963, 964 (1989) (citing Jones v. State, 95 Nev. 613, 617, 600 P.2d 247, 250 (1979) (quoting Stovall v. Denno, 388 U.S. 293, 301-02, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), overruled on other grounds by Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987))); (4) the district court did not abuse its discretion in refusing to sever Davidson's trial, see Honeycutt v. State, 118 Nev. 660, 667-68, 56 P.3d 362, 367 (2002), overruled on other grounds by Carter v. State, 121 Nev. 759, 765, 121 P.3d 592, 596 (2005); (5) Davidson did not have the right to a jury trial for his habitual criminal adjudication, see Parkerson v. State, 100 Nev. 222, 224, 678 P.2d 1155, 1156 (1984); (6) Davidson's habitual criminal adjudication did not violate the Eighth Amendment, see Schmidt v. State, 94 Nev. 665, 668, 584 P.2d 695, 697 (1978); see also Odoms v. State, 102 Nev. 27, 33-34, 714 P.2d 568, 572 (1986); (7) the district court did not plainly err in selecting an alternate juror, see Moore v. State, 122 Nev. 27, 37, 126 P.3d 508, 514 (2006); (8) the district court did not err in evaluating Davidson's challenges for cause, see State v. Lewis, 50 Nev. 212, 224-29, 255 P. 1002, 1005-08, (1927); see also Bryant v. State, 72 Nev. 330, 335-36, 305 P.2d 360, 362-63 (1956); (9) Davidson's right to a speedy trial was not violated, see Anderson v. State, 86 Nev. 829, 834, 477 P.2d 595, 598 (1970); and (10) cumulative error does not warrant reversal of Davidson's convictions, see DeChant v. State, 116 Nev. 918, 927, 10 P.3d 108, 113 (2000).
[2]  NRS 207.010(1)(a).
[3]  NRS 207.010(1)(b).
[4]  U.S. Const. amend. V.
[5]  922 F.2d 508 (9th Cir. 1990).
[6]  U.S. v. Davenport, 519 F.3d 940, 943 (9th Cir. 2008); see also Grey v. State, 124 Nev. ___, ___, 178 P.3d 154, 159 (2008) (observing that this court applies a de novo standard of review to constitutional challenges).
[7]  U.S. Const. amend. V.
[8]  Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).
[9]  See NRS 176.565 ("Clerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders.").
[10]  See Burchett v. Com., 734 S.W.2d 818, 820 (Ky.Ct.App.1987) ("Once a jury is discharged, it cannot reassemble if the jurors have separated and have left the presence of the courtroom." (citing Denham v. Commonwealth, 119 Ky. 508, 84 S.W. 538 (Ct.App.1905))); see also State of Nevada v. Waterman, 1 Nev. 453, 458 (1865) (providing that a district court may make even a substantial change to the verdict if all the jurors assent to it).
[11]  U.S. v. Stauffer, 922 F.2d 508, 511 (9th Cir. 1990).
[12]  Id.
[13]  Id.
[14]  Id.
[15]  Id.
[16]  Id.
[17]  Id. at 514.
[18]  Id.
[19]  See id. at 511.
[20]  Id. at 514 (recognizing that "decreasing the impact of a judgment is less problematic to a defendant than expanding its impact").
[21]  NRS 175.021(2).
[22]  NRS 175.481.
[23]  Rose v. State, 123 Nev. 24, ___, 163 P.3d 408, 417 (2007) (citing NRS 178.388(1)).
[24]  See NRS 207.010(1)(a).
[25]  Grey v. State, 124 Nev. ___, ___, 178 P.3d 154, 163 (2008).
[26]  Gallego v. State, 117 Nev. 348, 365, 23 P.3d 227, 239 (2001) (citing NRS 178.602).
[27]  Grey, 124 Nev. at ___, 178 P.3d at 163 (citing NRS 176.555).
[28]  Odoms v. State, 102 Nev. 27, 33, 714 P.2d 568, 572 (1986) (holding that sentence for each primary offense may be enhanced under NRS 207.010).


457 S.E.2d 603 (1995)
Wendy Marie McCOURT, Deceased, By and Through her Personal Representative, Steven McCOURT, Respondent,
v.
Glenn ABERNATHY, M.D., J.D. Clyde, M.D., Family Medicine Associates, P.A., Appellants.
No. 24242.
Supreme Court of South Carolina.
Heard December 8, 1994.
Decided May 1, 1995.
Rehearing Denied June 14, 1995.
*604 Cary C. Doyle, Anderson, G. Dewey Oxner, Jr. and Sally McMillan, Haynsworth, Marion, McKay & Guerard, Greenville, for appellants.
Michael E. Spears, Spartanburg, for respondent.
SHAW, Acting Associate Justice:
Respondent, Steven McCourt, as personal representative of the estate of his wife, Wendy Marie McCourt, brought wrongful death and survival causes of action against appellants, Glenn Abernathy, M.D., J.D. Clyde, M.D., and Family Medicine Associates, P.A. The jury returned a verdict in favor of respondent for both actual and punitive damages against Dr. Abernathy and Dr. Clyde. The doctors appeal the denial of their motions for new trial and new trial nisi. We affirm.

FACTS
The record discloses as follows. Twentythree year old Wendy McCourt first sought treatment from the appellants in December, 1987. At that time, Dr. Abernathy obtained a history from Wendy revealing past liver problems and subsequently sought medical records from Dr. Truss, who had been Wendy's treating physician in Alabama. On Wednesday or Thursday, March 9 or 10, 1988 Wendy was injured while working with horses. There is evidence Wendy was seen by Dr. Abernathy in his office at that time and was treated for a pulled muscle.[1] On Sunday, *605 March 13, her condition worsened and Wendy went to the Anderson Memorial Hospital emergency room. She was experiencing greater pain and had difficulty breathing. Dr. Clyde examined Wendy at that time and treated her for a pulled chest muscle. There is evidence Dr. Clyde treated the puncture wound to Wendy's finger at that time.[2] She was given prescriptions for Motrin and Co-Tylenol. She returned to her home.
The following day, March 14, Wendy's condition became significantly worse and she again sought treatment at the emergency room. She was examined by an emergency room physician who ran some blood tests. This physician indicated an immediate need to admit Wendy to the hospital. He telephoned Dr. Abernathy and was given permission to admit Wendy. At 6:30 that evening, Dr. Abernathy examined Wendy and observed the injured finger, for which he prescribed Keflex, an oral antibiotic.
At 9:00 the following morning, both Dr. Abernathy and Dr. Clyde saw Wendy while making rounds at the hospital. By that time, Wendy's condition had worsened yet more and the doctors consulted Dr. Kovaz, an internist. Although appellants requested a consult from Dr. Kovaz, they did not express any urgency in his seeing her. After examining Wendy, Dr. Kovaz immediately moved her to the intensive care unit with a diagnosis of sepsis, a bacterial infection. Although treatment with intravenous antibiotics was begun at that time, her condition continued to deteriorate. Over the next 4 days, her skin began to slough off, her eyes filled with blood, her feet turned black, she bled from her nose, mouth and pores, and she became bloated beyond recognition. On March 19, 1988, Wendy McCourt died from beta strep septicemia with multiple organ system failure secondary to the sepsis.
Respondent presented expert testimony from Dr. Neal Craine and Dr. Kenneth DeHart. Dr. Craine stated Wendy's illness was caused by "an unfortunate circumstance where transient bacteria in the bloodstream landed in an area already traumatized by the injury with the horse." He testified, assuming, as the "Death Summary" indicates, Dr. Abernathy saw Wendy on the 9th, she had a puncture wound to the finger and it was known she was working around horses, he should have put her on preventive antibiotics on that day. He stated it would also have been below the standard of care for Dr. Clyde to have observed an infected finger on the 13th and not treat her with antibiotics nor order laboratory tests. He stated he felt Wendy had a 100% chance of survival on the 13th had she been started on antibiotics at that time. Based on the test results received on the afternoon of the 14th, he stated that a doctor should know the patient was seriously ill and should have suspected sepsis. He concluded Wendy's life could have been saved if antibiotics had been started on the 9th, which would have prevented or treated an early infection of the finger. He also stated, more likely than not, Wendy could have been saved on the 13th by treatment with antibiotics as well as on the 14th with aggressive antibiotic therapy. He stated it was also below the standard of care to wait until the 15th to call in a specialist.
Dr. DeHart likewise testified, assuming Wendy presented with an infected finger on the 9th, failure to treat that prophylactically fell below the standard of care. He stated, assuming Wendy presented with an infected finger on the 13th, Dr. Clyde's treatment fell below the standard of care by failing to order lab tests, failing to immobilize the finger, and in failing to start antibiotics. As to Dr. Abernathy's treatment on the 14th, he testified it was "profoundly below the standard of care", not because he missed the diagnosis, but because he failed to order aggressive observation and failed to request consultation intervention.
*606 This matter was tried to a jury and on January 7, 1993 the jury returned the following verdicts for appellant:
(1) Wrongful death action: Actual damages $200,000 against Dr. Abernathy and $100,000 against Dr. Clyde; Punitive damages $500,000 against Dr. Abernathy and $250,000 against Dr. Clyde.
(2) Survival action: Actual damages $500,000 against Dr. Abernathy and $250,000 against Dr. Clyde; Punitive damages $500,000 against Dr. Abernathy and $250,000 against Dr. Clyde.
TOTAL VERDICTS: $2,550,000
On appeal, the appellants contend the trial judge erred in (1) denying their motions for a new trial based on the failure of the court to charge several requested jury instructions; (2) denying their motions for new trial absolute or new trial nisi based on the excessiveness of the verdict; and (3) denying their motions for a new trial on the grounds their due process rights were violated.

FAILURE TO CHARGE
Appellants first contend the trial judge erred in failing to charge several jury instructions relating to mistake in diagnosis or error in judgment in a medical malpractice cause of action.[3] We disagree. We first note the appellant either cites no case law either from South Carolina or other states to support the specific requested charges, or the South Carolina case law cited does not support the language sought to be included in the charge. The trial judge is required to charge only the current and correct law of South Carolina. State v. Robinson, 306 S.C. 399, 412 S.E.2d 411 (1991). Further, we note the requested charges may have a tendency to confuse the jury. Some of the charges imply to the jury that an error in judgment is actionable only if made in bad faith. Such an instruction would impose an unrealistic burden on the plaintiff to prove the doctor's judgment was rendered with less than good faith.
Finally, the appellants assert all of the charges stand for the proposition that a physician is not liable for a mistake in diagnosis or error in judgment if he acts within the appropriate standard of care. To warrant reversal for refusal to give a requested instruction, the refusal must have not only been erroneous, but prejudicial as well. Sherer v. James, 286 S.C. 304, 334 S.E.2d 283 (Ct.App.1985), rev'd on other grounds, 290 S.C. 404, 351 S.E.2d 148 (1986). Refusal to give a properly requested charge is not error if the general instructions are sufficiently broad to enable the jury to understand the law and the issues involved. Waldrup v. Metropolitan Life Ins. Co., 274 S.C. 344, 263 S.E.2d 652 (1980).
In instructing the jury on the burden of proof of the plaintiff and the standard of care required of the defendants, the trial judge gave the following relevant charges.
The material elements of a medical malpractice action require the plaintiff to *607 prove to your satisfaction as jurors by the greater weight or preponderance of the evidence and present evidence of the generally recognized practices and procedures which would be exercised by ordinary competent practitioners in a defendant doctor's field of medicine under the same or similar circumstances, and then to present evidence that a defendant doctor negligently departed from those recognized and generally accepted standards, practices, and procedures in the manner alleged by the plaintiff; and, in addition, to proving that a physician was in some way negligent, the plaintiff must also prove that a physician's negligence was a proximate cause of the plaintiffs injuries and/or death.
....
The mere fact that the plaintiffs expert may use a different approach is not considered a deviation from the recognized standard of medical care. Nor is the standard violated because the expert disagrees with a defendant as to what is the best or better approach in treating a patient. Medicine is an inexact science, and generally qualified physicians may differ as to what constitutes a preferable course of treatment. Such differences to preference under our law do not amount to malpractice.
I further charge you that the degree of skill and care that a physician must use in diagnosing a condition is that which would be exercised by competent practitioners in the defendant doctor's field of medicine. In South Carolina the question of whether a physician, in making a diagnosis deviated from the applicable standard of care either by not employing a particular procedure or by not ordering a particular test is to be determined by what an ordinary careful and prudent physician would have done under the same or similar circumstances.
....
Negligence may not be inferred from a bad result. Our law says that a physician is not an insurer of health, and a physician is not required to guarantee results. He undertakes only to meet the standard of skill possessed generally by others practicing in his field under similar circumstances.
Even if we were to assume the appellants' requested charges were the current and correct law of the state, we find the instructions as a whole clearly intimate that a mere mistake in diagnosis or error in judgment alone is insufficient to support a finding of malpractice. Accordingly, we find no error.

EXCESSIVE DAMAGES
Appellants next contend the trial judge erred in denying their motions for new trial absolute or, in the alternative, new trial nisi on the basis of the excessiveness of the punitive damages awards. They contend the damages are excessive and, because there was no evidence of conduct rising to the level of recklessness, the verdict was the result of passion and prejudice. We disagree.
In order for a plaintiff to recover punitive damages, there must be evidence the defendant's conduct was wilful, wanton, or in reckless disregard of the plaintiffs rights. Scott v. Fruehauf Corporation, 302 S.C. 364, 396 S.E.2d 354 (1990). A conscious failure to exercise due care constitutes wilfulness. Id. The trial judge alone has the power to grant a new trial nisi when he finds the amount of the verdict to be merely inadequate or excessive and the denial of such a motion will not be reversed on appeal absent an abuse in the trial judge's discretion. O'Neal v. Bowles, ___ S.C. ___, 431 S.E.2d 555 (1993). The trial judge should grant a new trial based on excessiveness of the verdict only if the amount is not merely different from that which he would have awarded, but is so grossly excessive so as to shock the conscience of the court and clearly indicates the figure reached was the result of caprice, passion, prejudice, partiality, corruption, or other improper motives. Rush v. Blanchard, 310 S.C. 375, 426 S.E.2d 802 (1993).
We find the record before us contains evidence that both Dr. Abernathy and Dr. Clyde consciously failed to exercise due care in treating Wendy. This evidence includes, but is not limited to: (1) failure to properly diagnose and treat Wendy within the standard of care on three separate occasions; (2) failure to order timely diagnostic tests in light of continual complaints and no improvement of Wendy's condition; (3) failure to *608 appreciate the seriousness of Wendy's deteriorating condition in the face of highly abnormal blood work; (4) failure to aggressively monitor Wendy's deteriorating condition; and (5) failure to promptly seek the immediate aid of a specialist once the seriousness of Wendy's condition became apparent. While the evidence indicates a more severe degree of culpability on the part of Dr. Abernathy than Dr. Clyde, the record contains sufficient evidence of conduct on the part of both doctors to support the awards of punitive damages. The jury's determination of damages is entitled to substantial deference. Rush at 805. We find no abuse of the trial judge's discretion in this respect.

DUE PROCESS
Appellants contend the trial judge erred in failing to instruct the jury on the factors to be included in post-trial review as enunciated in Gamble v. Stevenson, 305 S.C. 104, 406 S.E.2d 350 (1991). We disagree.
In Gamble, this court found the award of punitive damages as guided by the trial court was sufficiently reasonable to withstand constitutional challenge. The instructions of the trial judge there included: the degree of recklessness requisite to a punitive damage award; that such an award was to punish a defendant, or to deter or stop him and others from similar conduct in the future; that it must find actual damages before awarding punitive damages; and in calculating the amount of such damages, it may consider the defendants ability to pay. In the instant case, the trial judge likewise instructed the jury on all these aspects of a punitive damage award.
Nowhere in Gamble did we require the factors to be considered in post-trial review of a punitive damage award be included in the jury charge. We therefore find the trial judge properly instructed the jury pursuant to Gamble.[4]
Appellants also contend the trial judge's post-trial review as mandated by Gamble did not support the jury's award of punitive damages. We disagree. The trial judge separately listed and addressed the eight factors required in a post-trial review. The amount of damages, actual or punitive, is largely within the discretion of the jury, as reviewed by the trial judge, and review by this court is limited. Gamble at 355. We find no error.
AFFIRMED.
CHANDLER, C.J., and FINNEY, TOAL and WALLER, JJ., concur.
NOTES
[1]  Steven McCourt testified he came home on the 9th or 10th and found Wendy icing down her chest. He further stated she was taking prescription muscle relaxant medication from sample packets. While Dr. Abernathy denied seeing Wendy at that time, in a "Death Summary" he indicated he had seen Wendy on the 9th, after an accident while working with horses, at which time she had a small puncture wound to her finger and complained of left chest wall pain. Dr. Abernathy testified he had made a mistake in dictating he had seen Wendy at that time.
[2]  Steven McCourt testified Dr. Clyde pointed out the puncture wound on Wendy's finger which Dr. Clyde proceeded to clean and dress. He stated the finger was red and swollen to almost twice the normal size, and was having some sort of discharge. He further testified the wound was very noticeable and Wendy indicated it was a result of a pin prick that occurred a couple of days earlier.
[3]  Oral request # 1: When a physician exercises ordinary care and skill in keeping within recognized and proven methods, he is not liable for the result of a bona fide mistake of judgment. There is no responsibility unless it is negligent, as I have defined that to you, so as to be inconsistent with that degree of skill which is the duty of every physician practicing in his specialty to possess and use.

Oral request #2: A physician is not ordinarily liable for making an incorrect diagnosis where it is made in good faith and there is reasonable doubt as to the nature of the physical condition involved or as to what should be done in accordance with recognized authority and good current practice, or where it is made in good faith observation of a patient and based upon physical evidence and symptoms which would warrant such a diagnosis by a reasonably prudent and informed physician.
Request #5: A physician cannot be held liable for a mere error in judgment. Where, according to standard medical practice, the diagnosis and course of treatment involved are matters to be subjected to the judgment of the physician, a physician must be allowed the exercise of that judgment and he cannot be held liable if in the exercise of that judgment he has made a mistake as to the course of treatment to be taken.
Request #13: Ladies and Gentlemen, when a physician exercises ordinary care and skill in keeping within recognized and proven methods, he is not liable for the result of a mere mistake of judgment or for a bad result which does not occur because of any negligence on his part. There is no responsibility for error of judgment or for a bad result unless it is so negligent as to be inconsistent with that degree of skill which it is the duty of every practitioner practicing in his specialty to possess.
[4]  We further note the record fails to show the appellants requested any such charge to the jury. See Friedman v. Fludas, 122 S.C. 153, 115 S.E. 200 (1922) (no error may be predicated on failure of court to give charge which was not requested). Nor did appellants raise this issue in their new trial motions. See Degenhart v. Knights of Columbus, 309 S.C. 114, 420 S.E.2d 495 (1992) (issue which is neither ruled on by trial court nor raised in post-trial motion is not properly preserved for appeal).


673 S.E.2d 167 (2009)
STATE
v.
BROWN.
No. COA08-916.
Court of Appeals of North Carolina.
Filed February 17, 2009.
Certification Date March 9, 2009.
Case reported without published opinion. No Error.


                 IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT

                             No. 98-41032

In The Matter Of: US BRASS CORP

                                             Debtor

THE INSURANCE SUBROGATION CLAIMANTS

                                             Appellant

                                 versus

US BRASS CORP; SHELL OIL COMPANY; HOECHST CELANESE
CORPORATION; OFFICIAL POLYBUTYLENE CREDITORS COMMITTEE;
ELJER INDUSTRIES INC; ELJER PLUMBINGWARE INC

                                             Appellees

          Appeal from the United States District Court
                for the Eastern District of Texas

                            March 12, 1999

Before HIGGINBOTHAM, BARKSDALE, and DENNIS, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

     Insurance     Subrogation   Claimants    appealed   an   order   of

confirmation of a Chapter 11 reorganization plan proposed by U.S.

Brass, the debtor, and its direct parents, Eljer Manufacturing,

Inc., and EMI’s parent Eljer Industries, Inc. The ISC contend that

the plan violates 11 U.S.C. § 1123(a)(4), which requires all

creditors within a class be treated the same, unless the creditor
who is being treated less favorably agrees to less favorable

treatment.   The ISC also argue that the plan was not proposed in

good faith under 11 U.S.C. § 1129(a) and should not have been

approved.

     Shell and U.S. Brass have moved to dismiss ISC’s appeal as

moot. We agree, and finding the plan substantially implemented and

effective relief unattainable, dismiss the appeal.

                                    I

     On May 23, 1994, U.S. Brass filed for Chapter 11 relief in the

Eastern District of Texas.    Prior to the petition date, U.S. Brass

had been sued in hundreds of cases seeking damages from alleged

defects associated with a polybutylene plumbing system. During the

pendency of the Chapter 11 case, a global settlement of the PB

litigation was fashioned in an action styled Tina Cox, et al. v.

Shell Oil Co., et al., Civil Action No. 18,844, with the Chancery

Court for Obion County, Tennessee. The Cox court certified the Cox

Plaintiffs as a national settlement class.            The ISC were not

members of the settlement class.

     In   November   1995,   the   Cox   court   approved   a   settlement

agreement between the Cox Plaintiffs and Shell and Celanese and

authorized the parties to pursue contributions from U.S. Brass. A

contribution plan was negotiated and is incorporated into the plan

as the Cox Plaintiffs’ Settlement Agreement.

                                    2
       The Cox Plaintiffs and the ISC are designated as Class 5

claimants   in    the    reorganization       plan.       The   Cox   Plaintiffs’

Settlement Agreement, however, provides a settlement of all Cox

Plaintiffs’ claims in exchange for a cash contribution from the

Brass   Trust    of   $37.4   million       and   80%   of   the   Brass   Trust’s

recoveries from insurance coverage to the settlement fund.                    The

remaining 20% is available for the other Class 5 claimants like the

ISC.

       On September 30, 1997, the bankruptcy court approved U.S.

Brass’ Fourth Amended Disclosure Statement and on January 27-29,

1998, held a confirmation hearing.            The bankruptcy court overruled

the ISC’s objections and confirmed the plan and the incorporated

settlements, including the Cox Plaintiffs’ Settlement Agreement.

The Cox court in Tennessee, in turn, entered a final order on

February    5,   1998,    approving     the       Cox   Plaintiffs’    Settlement

Agreement and authorizing the Cox Plaintiffs to consummate the

transactions contemplated in the plan.

       On February 24, 1998, the bankruptcy court entered its order

confirming the reorganization plan and it became effective March 6,

1998.    On the same day, the ISC filed a notice of appeal to the

district court of the confirmation order.               Here begins the path to

mootness.    The ISC also filed a motion for limited stay pending

appeal with the bankruptcy court requesting the bankruptcy court to

enjoin any funding from the Brass Trust to the Cox Plaintiffs or to

the Consumer Plumbing Recovery Center, the entity that administers

                                        3
the $950 million settlement from Shell and Celanese.              The ISC did

not seek emergency or expedited consideration of the bankruptcy

court’s order.

     The reorganization plan proceeded, and on March 19, 1998 the

following events occurred:

     (1)      The Brass Trust was created pursuant to § 7.1 of
              the plan;

     (2)      nearly $5 million was distributed to pay the
              holders of allowed administrative, priority and
              general unsecured claims;

     (3)      Eljer wired more than $48 million into the Brass
              Trust;

     (4)      the Brass Trust paid more than $32 million to the
              CPRC for distribution to holders of allowed
              plumbing claims;

     (5)      various global settlement agreements and releases
              were signed by the major participants in the
              Chapter 11 case, such as the Cox Plaintiffs’
              Settlement Agreement, the Shell/Celanese Settlement
              Agreement, and the Brass Settlement Agreement;

     (6)      the Eljer note was executed; and

     (7)      U.S. Brass and its parents assigned all their
              right, title, and interest to certain insurance
              proceeds to the Brass Trust.

     On March 26, 1998, U.S. Brass filed an objection to the ISC’s

motion   to    stay,   urging   that   the   plan   was   now   substantially

consummated.      The bankruptcy court held a hearing on the stay

motion on May 6, 1998.      Although no ruling came forth, the ISC did

nothing and on July 27, 1998, the district court affirmed the

bankruptcy court’s confirmation of the plan.

                                       4
     On August 25, 1998, the ISC filed a notice of appeal to this

court.    Then finally on September 17, 1998, the ISC filed a motion

to stay and a request for expedited consideration with the district

court.    The district court never ruled on the stay motion.

     The ISC did nothing until January 21, 1999, almost four months

after appealing the confirmation of the plan to this court.                The

ISC requested that this court stay further proceedings pending

appeal in this court.         We must determine whether this appeal is

moot considering the failure of the ISC to obtain a stay, the

action taken toward implementing the plan, and the potential effect

of the ISC’s requested relief on the plan.

                                      II

     When evaluating whether an appeal of a reorganization plan in

a bankruptcy case is moot, this court examines whether (1) a stay

has been obtained, (2) the plan has been substantially consummated,

and (3) the relief requested would affect either the rights of

parties not before the court or the success of the plan.              See In re

Manges,   29   F.3d   1034,   1039   (5th   Cir.   1994);   In   re   Berryman

Products, Inc., 159 F.3d 941, 944 (5th Cir. 1998).           Shell and U.S.

Brass argue that each of the factors favor finding the ISC’s appeal

moot.

     1. Failure to Obtain a Stay

                                      5
     To date, the ISC have not obtained a stay.             U.S. Brass and

Shell argue that the ISC’s efforts in pursuing a stay have not been

diligent.    For example, the first stay requested by the ISC, on

March   6,   1998,   was   made   without     a   request   for   expedited

consideration   even   though     the    bankruptcy   court   had   already

confirmed the plan on January 29, 1998.           Similarly, although the

district court affirmed the plan on July 27, 1998, the ISC waited

until September 17, 1998 to seek a stay from the district court.

The district court never ruled, and the ISC never sought further

action on this second stay request until January 21, 1999, when the

ISC filed a motion for stay with this court.          U.S. Brass and Shell

maintain that the ISC’s failure to obtain a stay and its lack of

diligence militates in favor of dismissal for mootness.

     This court has recognized that “the failure or inability to

obtain a stay pending appeal carries the risk that review might be

precluded on mootness grounds.”         Manges, 29 F.3d at 1040.    In this

case, it is undisputed that the ISC have failed to obtain a stay.

We turn to the transactions that have taken place as a consequence

to determine the extent to which the plan has been implemented.

     2. Substantial Consummation of the Plan

        The second question in the mootness inquiry is whether the

plan has been substantially consummated.          According to 11 U.S.C.

§1102(a):

     "[S]ubstantial consummation" means--

                                     6
     (A)   transfer of all or substantially all of the
           property proposed by the plan to be transferred;

     (B)   assumption by the debtor or by the successor to the
           debtor under the plan of the business or of the
           management of all or substantially all of the
           property dealt with by the plan; and

     (C)   commencement of distribution under the plan.

“‘Substantial consummation’ is a statutory measure for determining

whether a reorganization plan may be amended or modified by the

bankruptcy court.” Manges, 29 F.3d at 1040.        This court may

“decline to consider the merits of confirmation when a plan has

been so substantially consummated that effective judicial relief is

no longer available--even though the parties may have a viable

dispute on appeal.”   Berryman, 159 F.3d at 944.

     The parties dispute whether the plan has been substantially

consummated.   In the absence of a stay pending appeal, U.S. Brass,

the Brass Trust, the CPRC, and various other parties in interest

have proceeded to implement the plan.   Shell and U.S. Brass argue

that the events following the March 1998 confirmation demonstrate

how extensively the plan has been implemented.       The following

actions, for example, have occurred since the ISC sought a stay

pending appeal in the district court:

     (1)   U.S. Brass has continued       to   operate    as   a
           reorganized entity;

     (2)   U.S. Brass has paid in full all of the outstanding
           debt owed to its debtor-in-possession financing
           lender;

                                 7
       (3)   U.S. Brass and EII have implemented a new financing
             arrangement whereby EII provides operating funds to
             U.S. Brass;

       (4)   the bankruptcy court has entered orders providing
             the final allowance to Class 4 general unsecured
             claims;

       (5)   U.S. Brass has amended its state charter and by-
             laws as required by the plan;

       (6)   a number of state lawsuits against EMI and EII
             asserting plumbing claims have been dismissed with
             prejudice;

       (7)   the Brass Trust has transmitted checks in the sum
             of $267,978.45 as offers of full settlement to the
             convenience class claimants;

       (8)   the   Brass   Trust   has   opened   bank   accounts,
             established an account record system, implemented
             an investment program for excess funds, obtained
             insurance   coverage,    established   by-laws,   and
             retained professionals to carry out its duties;

       (9)   the Brass Trust, the CPRC, and Goldin Associates,
             the financial advisors to the Brass Trust, have
             established a claim resolution system to process
             allowed claims;

       (10) the CPRC has distributed to holders of allowed
            plumbing claims all of the funds transferred by the
            Brass Trust to the CPRC;

       (11) Shell and Celanese, in reliance on the Confirmation
            order   and   pursuant   to  the   terms   of   the
            Shell/Celanese Settlement Agreement, which was
            incorporated into the plan, have released asserted
            claims against U.S. Brass in excess of $1 billion
            for a payment of $2.5 million and have increased
            their commitment to the Cox Settlement from $850
            million to $950 million.

U.S.   Brass   claims   that   all   of   the   elements   of   “substantial

consummation” have occurred because on March 19, 1998, U.S. Brass

emerged as a newly reorganized entity and, as the Closing Binders

                                      8
make clear, “(I) distributions commenced (with the transfer of more

than $48 million to the CPRC and the payment if more than $5

million to holders of allowed administrative, priority and general

unsecured claims), and (ii) substantially all the property to be

transferred   under      the    plan   was   transferred     (i.e.   U.S.   Brass

assigned to the Brass Trust all of their right, title and interest

to certain insurance recoveries).”             Shell and U.S. Brass maintain

that these transactions cannot be “unscrambled” and should weigh in

favor of mootness.

      The ISC reply that the plan has not been so substantially

consummated that effective relief is no longer available.                     The

relief the ISC seek would require the Brass Trust to reallocate its

future disbursements of insurance recoveries pro-rata among all

Class 5 claimants, instead of the present 80%/20% plan.                 In order

to   effectuate   this    relief,      the   ISC   propose   removing   the   Cox

Plaintiffs’ Settlement Agreement from the plan.                  Shell and U.S.

Brass   contend   that     removing      the    Cox    Plaintiffs’   Settlement

Agreement from the plan would dismantle the plan.

      We find the transactions that have taken place to date, the

exchange of mutual releases, the disbursements already made, and

the general implementation of the plan by all the involved parties

evidence substantial consummation of the plan. This determination,

however,   does   not     end    the   mootness       inquiry.    “‘Substantial

consummation of a reorganization plan is a momentous event, but it

does not necessarily make it impossible or inequitable for an

                                         9
appellate court to grant effective relief.’" Manges, 29 F.3d at

1042-43 (quoting Frito-Lay, Inc. v. LTV Steel Co., Inc. (In re

Chateaugay Corp.), 10 F.3d 944, 952 (2nd Cir. 1993)).           Rather, we

must also consider whether the remedy the ISC seek will affect the

success of the plan or alter the rights of third parties that have

been achieved by its substantial consummation.        More specifically,

we must determine whether the plan has been implemented to a point

that the removal of the Cox Plaintiffs’ Settlement Agreement would

jeopardize the plan’s success.

     3. Granting Relief Would Affect Third Parties and Plan

     Shell   and   U.S.   Brass   maintain   that   the   Cox   Plaintiffs’

Settlement Agreement is an essential element of the plan, and its

removal would detrimentally affect confirmation.          They argue that

the various settlement agreements between and among the major

parties with an interest in the Chapter 11 case -- U.S. Brass,

Shell, Celanese, and the Cox Plaintiffs -- were found by the

bankruptcy court to be essential to the debtor’s reorganization.

Without the inclusion of the Cox Plaintiffs’ Settlement Agreement,

Shell and U.S. Brass argue that the plan would not have been

confirmed.

     Section 13.1 of the plan expressly provides that certain

events, including the approval of the Cox Plaintiffs’ Settlement

Agreement, the Shell/Celanese Settlement Agreement, and the Brass

Settlement Agreement, are conditions precedent to confirmation of

                                    10
the plan.       These settlements reflect the negotiations of the

parties interested in the Chapter 11 case and the bargains they

secured by voting in favor of the plan.                      Shell and U.S. Brass argue

that    if   the    80%/20%          split   provided        by    the    Cox    Plaintiffs’

Settlement Agreement was altered, the change would affect the

interdependence of all the settlements.                           The plan also provides

that any of the settling parties may withdraw from the plan in the

event there are modifications to which the parties have not agreed.

In short, U.S. Brass and Shell maintain that the Cox Plaintiffs

Agreement cannot be eliminated from the plan without unraveling the

entire   plan.           In   addition,      U.S.    Brass        and    Shell    oppose   any

modification of the plan by judicial fiat because 11 U.S.C. § 1127

provides that only the proponent of a plan or the reorganized

debtor may modify a confirmed plan.

       The ISC, on the other hand, contend that the plan will not

unravel if the court affords them relief by modifying the 80%/20%

split    with      the    Cox    Plaintiffs         to   a    pro       rata    distribution.

According     to    the       ISC,    the    only    effect        of    removing    the   Cox

Plaintiffs’ Settlement Agreement would be to alter the Brass

Trust’s distribution to holders of Class 5 claims.

                                              III

       While the ISC’s proposed day surgery appears at first blush to

be possible, we are persuaded it would excise parts to which other

vitals of the plan are attached.                    To remove the Cox Plaintiffs’

                                              11
Settlement Agreement from the plan at this point would dismantle a

substantially   consummated      plan,   requiring,   for     example,   a

restoration of the rights of the Cox Plaintiffs to pursue claims

against U.S. Brass, now a reorganized entity.         In addition, the

releases and settlements that were negotiated among the parties

would have to be undone because removal of the Cox Plaintiffs’

Settlement   Agreement   would    consequently   require     giving   each

settling party the right to withdraw from the plan.         Removal of the

Cox Plaintiffs’ Settlement Agreement would also require that the

money contributed by U.S. Brass’ parent corporations to fund the

plan be recovered.   These circumstances persuade us that it would

be inequitable for this court to consider the merits of the ISC’s

appeal.   Accordingly, we dismiss this appeal as MOOT.

     APPEAL DISMISSED.

                                   12


                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
               IN THE UNITED STATES COURT OF APPEALS                 May 27, 2003

                       FOR THE FIFTH CIRCUIT                   Charles R. Fulbruge III
                       _____________________                           Clerk

                            No. 02-51061
                          Summary Calendar
                       _____________________

                       MICHAEL JOHN GILBERT,

                                                Plaintiff - Appellant,

                                versus

                VAL VERDE REGIONAL MEDICAL CENTER,

                                            Defendant - Appellee.
_________________________________________________________________

           Appeal from the United States District Court
                 for the Western District of Texas
                    USDC No.: DR-01-CV-44-FB/DG
_________________________________________________________________

Before JOLLY, HIGGINBOTHAM, and DAVIS, Circuit Judges.

PER CURIAM:*

     Michael John Gilbert, pro se, appeals the magistrate judge’s

order denying appointed counsel in this Title VII action. Although

Gilbert consented to final disposition by a magistrate judge, Val

Verde Regional Medical Center did not consent.          Gilbert did not

seek review of the magistrate judge’s ruling by the district court.

Accordingly,   we   lack   appellate     jurisdiction   to     review      the

magistrate judge’s order. See Singletary v. B.R.X., Inc., 828 F.2d

1135, 1137 (5th Cir. 1987) (pretrial matters referred by a district

     *
      Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
court to a magistrate judge must be appealed first to the district

court).

                                               D I S M I S S E D.

                                2


865 F.2d 261
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Mary A. TUNSTALL, Plaintiff-Appellee,v.SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellant.
No. 86-6167.
United States Court of Appeals, Sixth Circuit.
Dec. 19, 1988.

Before KRUPANSKY and RYAN, Circuit Judges, and BAILEY BROWN, Senior Circuit Judge.

ORDER

1
The Secretary appeals the order of the district court awarding attorney fees to claimant in this Social Security disability action.  The sole issue raised on appeal is the standard for determining the "substantial justification" of the government's position under the Equal Access to Justice Act (EAJA), Pub.L. No. 96-48, 94 Stat. 2328, 28 U.S.C. Sec. 2412(d).  This standard is applied by the court's to decide whether reasonable attorney fees should be awarded against the government.

2
The parties now have filed joint motions to vacate the district court's order and to remand this appeal for further proceedings in light of the recent United States Supreme Court decision in Pierce v. Underwood, 108 S.Ct. 2541 (1988).

3
Upon consideration, we agree with the parties and conclude that the decision in Pierce v. Underwood controls all issues presented to this Court in the immediate appeal.  The district court's judgment of August 29, 1986 is vacated and this case is remanded for further proceedings in light of the Supreme Court's decision in Pierce v. Underwood.

4
It is so ORDERED.


7 So.3d 1111 (2009)
LAFFITTE
v.
STATE.
No. 3D08-780.
District Court of Appeal of Florida, Third District.
April 15, 2009.
Decision without published opinion. Affirmed.