Opinion
Case No. 01-61299
August 13, 2002
MEMORANDUM OPINION AND ORDER
Final hearing was held April 30, 2002, on movants' motion for relief from the automatic stay to allow them to proceed with personal injury litigation against debtor. The court took the matter under advisement and asked the parties to submit proposed findings of fact and conclusions of law. On June 4, 2002, the court entered a memorandum opinion and order granting the motion for relief from stay to the limited extent that movants could proceed with the district court litigation to determine debtor's liability, if any. Debtor filed a motion to reconsider the court's order on July 3, 2002 pursuant to Fed.R.Civ.P. 60(b)(6). Movant Stephen Gould Paper Company then filed an objection to debtor's motion to reconsider on July 18, 2002.
Motions requesting the court to reconsider its judgments to correct errors of fact or law are usually filed under Fed.R.Civ.P. 59(e) and Fed.R.Bankr.P. 9023. Rule 59 motions must be filed no later than 10 days after judgment is entered. A motion under Rule 59(e) is appropriate "to correct glaring errors of fact or law" in the court's opinion. Wal-Mart Stores. Inc. v. El-Amin (In re El-Amin), 252 B.R. 652, 654 (Bankr. E.D. Va. 2000).
Motion to Alter or Amend Judgment. Any motion to alter or amend a judgment must be filed no later than 10 days after entry of the judgment. Fed.R.Civ.P. 59(e).
A motion to reconsider a judgment may also be brought under Rule 60(b) (applicable to bankruptcy proceedings through Fed.R.Bankr.P. 9024) for the following reasons:
1) mistake . . . or excusable neglect; 2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); 3) fraud . . ., misrepresentation or other misconduct of an adverse party; 4) the judgment is void; 5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated . . .; or 6) any other reason justifying relief from operation of this judgment. The motion shall be made within a reasonable time. . . .
Relief granted under Rule 60(b) is an "extraordinary remedy" and not a substitute for direct appeal of a judgment. Design Classics. Inc. v. Westphal (In re Design Classics. Inc.), 788 F.2d 1384, 1386 (8th Cir. 1986). The decision to grant a Rule 60 motion is within the discretion of the court and is "may be reviewed only for abuse of discretion." Id.
Debtor is seeking relief under Rule 60(b)(6), the "catch-all" provision of rule 60. To obtain relief under this provision debtor must show that its motion is "based on a reason other than those enumerated in subclauses (1)-(5)" and that this reason justifies granting of relief.Drake v. Dennis (In re Dennis), 209 B.R. 20, 27 (Bankr. S.D. Ga. 1996). Relief under the catchall provision "is only to be granted in exceptional or extraordinary circumstances" Id.; see also Pioneer Inv. Servs. Co. v. Brunswick Assocs., L.P., 507 U.S. 380, 393 (1993) (stating that a party must show "extraordinary circumstances" suggesting that the movant is faultless in the delay). Trial courts have "broad authority" in determining whether extraordinary circumstances exist. Valley Citizens for Safe Env't v. Aldridge, 969 F.2d 1315, 1317 (1st Cir. 1992). This court has previously ruled that 60(b) "is to be applied sparingly" due to its "wide expanse of remedies." In re Babcock, 258 B.R. 646, 649 (Bankr. E.D. Va. 2001). Furthermore, this court has articulated examples of cases that warranted relief under rule 60(b)(6). Relief "has largely been confined to cases where orders were entered with no notice to movant, undiscovered fraud of a third party, or when movant's health or incarceration prevented participation." Id. at 650.
In the instant case debtor's motion centers around an insurance policy that allegedly contains a $500,000.00 self-insured retention provision. Debtor states that the policy will apply only once damages are awarded in excess of $500,000.00 and will not cover or reimburse debtor for litigation expenses in defending claims. The court's original ruling included a presumption by the court that the debtor "has insurance coverage for the type of claim involved" while acknowledging that the record as to debtor's insurance was "undeveloped." Mem. Op. pp. 5-6. The court limited its ruling accordingly by granting relief from stay for movants to proceed in the district court litigation to determine the extent of debtor's liability, but the ruling did not allow collection from any insurance coverage that debtor may have. Outside of alerting the court to the existence of this insurance coverage the debtor's motion does not demonstrate any extraordinary circumstances that would justify relief under 60(b)(6).
Further, it is worth noting that debtor objected to the introduction into evidence of this same insurance policy by counsel for Stephen Gould during cross examination of Gary W. Moten, Associate General Counsel of AMF Bowling Worldwide, Inc. The court sustained the objection for counsel's failure to lay a proper foundation for the document. Debtor is now asking the court to admit the insurance policy into evidence though debtor failed to do so at hearing or in response to the motion for relief from stay. Such conduct may be covered by the "mistake" or "excusable neglect" provisions of Rule 60(b)(1) and would, therefore, not be appropriate for a Rule 60(b)(6) motion.
Debtor's failure to show "extraordinary circumstances" and the applicability of Rule 60 (b)(1) to debtor's motion justify denial of debtor's motion to reconsider. Accordingly,
IT IS ORDERED, that debtor's motion to reconsider the court's June 4, 2002, order granting relief from stay to parties in the litigation styledHoward v. AMF Bowling. Inc., in the District Court of Nevada, pursuant to Fed.R.Bankr.P. 9024 and Fed.R.Civ.P. 60(b)(6) is