     08-3658-bk
     In re Calpine Corp.



                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED
     AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1 AND
     FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT
     CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION
     MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: “(SUMMARY ORDER).”
     UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE
     WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV), THE
     PARTY CITING THE SUMMARY ORDER MUST FILE AND SERVE A COPY OF THAT SUMMARY ORDER TOGETHER
     WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED. IF NO COPY IS SERVED BY REASON OF THE
     AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT
     DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.


 1            At a stated term of the United States Court of                    Appeals
 2       for the Second Circuit, held at the Daniel Patrick                    Moynihan
 3       United States Courthouse, 500 Pearl Street, in the                    City of
 4       New York, on the 25 th day of November, two thousand                  nine.
 5
 6       PRESENT: DENNIS JACOBS,
 7                         Chief Judge,
 8                PIERRE N. LEVAL,
 9                         Circuit Judge,
10                GEORGE B. DANIELS, *
11                         District Judge.
12
13       - - - - - - - - - - - - - - - - - - - -X
14
15       IN RE: CALPINE CORPORATION,
16
17                    Debtor,
18
19       - - - - - - - - - - - - - - - - - - - -X
20


                *
               The Honorable George B. Daniels, United States
         District Court for the Southern District of New York,
         sitting by designation.

                                                  1
 1   ELIAS A. FELLUSS,
 2
 3            Appellant,
 4
 5            -v.-                              08-3658-bk
 6
 7   CALPINE CORPORATION, THE OFFICIAL
 8   COMMITTEE OF UNSECURED CREDITORS,
 9
10            Appellees.
11
12   - - - - - - - - - - - - - - - - - - - -X
13
14   APPEARING FOR APPELLANT:   ELIAS A. FELLUSS, pro se,
15                              Centerport, N.Y.
16
17
18   APPEARING FOR APPELLEES:   RICHARD M. CIERI, MARC
19                              KIESELSTEIN, and DAVID R.
20                              SELIGMAN, Kirkland & Ellis LLP,
21                              New York, N.Y., and JEFFREY S.
22                              POWELL, ASHLEY C. PARRISH, and
23                              SCOTT M. ABELES, Kirkland &
24                              Ellis, Washington, D.C., for
25                              Reorganized Debtors-Appellees.
26
27                              MICHAEL S. STAMER, DAVID M.
28                              ZENSKY, and PHILIP C. DUBLIN,
29                              Akin Gump Strauss Hauer & Feld
30                              LLP, New York, N.Y., for
31                              Appellee Official Committee of
32                              Unsecured Creditors.
33
34        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
35   AND DECREED that the judgment of the district court be
36   AFFIRMED.
37
38        Elias A. Felluss, pro se, appeals from the judgment of
39   the United States District Court for the Southern District
40   of New York (Marrero, J.), dismissing as moot his appeal
41   from a judgment of the United States Bankruptcy Court for
42   the Southern District of New York (Lifland, J.). We assume
43   the parties’ familiarity with the underlying facts, the
44   procedural history, and the issues presented for review.
45


                                  2
 1        A district court’s affirmation of a bankruptcy court’s
 2   judgment is subject to plenary review; conclusions of law
 3   are reviewed de novo and findings of fact are reviewed for
 4   clear error. In re First Cent. Fin. Corp., 377 F.3d 209,
 5   212 (2d Cir. 2004). Having undertaken such a review, we
 6   affirm for substantially the reasons stated by the district
 7   court. Felluss’s appeal is equitably moot because the plan
 8   of reorganization was substantially consummated and Felluss
 9   has not overcome the ensuing presumption of mootness by
10   establishing the factors set forth in In re Chateaugay
11   Corp., 10 F.3d 944, 952-54 (2d Cir. 1993).
12
13        Finding no merit in Felluss’s remaining arguments, we
14   AFFIRM the judgment of the district court.
15
16
17                     FOR THE COURT:
18                     CATHERINE O’HAGAN WOLFE, CLERK
19
20                     By:___________________________




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