Opinion
Case No. 12-12796 (REG)
07-01-2014
In re: FLETCHER INTERNATIONAL, LTD., Debtor.
LUSKIN, STERN & EISLER LLP Counsel for Richard Davis, FILB Chapter 11 Trustee By: Michael Luskin, Esq. Lucia T. Chapman, Esq. Stephan E. Hornung, Esq. STEWART TURNER Former Director and Treasurer of the Debtor, Pro Se HOLLAND & KNIGHT LLP Counsel for Fletcher Fixed Income Alpha Fund, Ltd. And Massachusetts Bay Transportation Bay Retirement Fund By: John J. Monaghan, Esq. JONES DAY Counsel for Soundview Trustee, Corinne Ball By: Veerle Roovers, Esq. Corinne Ball, Esq., Trustee WILLIAM K. HARRINGTON United States Trustee, Region 2 By: Richard C. Morrissey, Esq.
Chapter 11
DECISION AND ORDER ON MOTION FOR
RECONSIDERATION
APPEARANCES: LUSKIN, STERN & EISLER LLP
Counsel for Richard Davis, FILB Chapter 11 Trustee
By: Michael Luskin, Esq.
Lucia T. Chapman, Esq.
Stephan E. Hornung, Esq.
STEWART TURNER
Former Director and Treasurer of the Debtor, Pro Se
HOLLAND & KNIGHT LLP
Counsel for Fletcher Fixed Income Alpha Fund, Ltd. And Massachusetts Bay
Transportation Bay Retirement Fund
By: John J. Monaghan, Esq.
JONES DAY
Counsel for Soundview Trustee, Corinne Ball
By: Veerle Roovers, Esq.
Corinne Ball, Esq., Trustee
WILLIAM K. HARRINGTON
United States Trustee, Region 2
By: Richard C. Morrissey, Esq.
ROBERT E. GERBER
UNITED STATES BANKRUPTCY JUDGE:
Deeming the attached Request for Reconsideration to be a motion for reargument under Fed. R. Bankr. P. 9023, Fed.R.Civ.P. 59, and Local Bankruptcy Rule 9023-1, the motion is denied.
Fed.R.Bankr.P. 9023, as it will provide until December 1, 2014, states:
Except as provided in this rule and Rule 3008, Rule 59 F.R.Civ.P. applies in cases under the Code. A motion for a new trial or to alter or amend a judgment shall be filed, and a court may on its own order a new trial, no later than 14 days after entry of judgment.
Fed.R.Civ.P. 59 provides, in relevant part:
(1) Grounds for New Trial. The court may, on motion, grant a new trial on all or some of the issues—and to any party—as follows:
(A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court; or(2) Further Action After a Nonjury Trial. After a nonjury trial, the court may, on motion for a new trial, open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new ones, and direct the entry of a new judgment.
(B) after a nonjury trial, for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court.
Rule 9023-1 of the Local Rules of this Court provides, in relevant part:
(a) A motion for reargument of a court order determining a motion shall be served within 14 days after the entry of the Court's order determining the original motion, or in the case of a court order resulting in a judgment, within 14 days after the entry of the judgment, and, unless the Court orders otherwise, shall be made returnable within the same
amount of time as required for the original motion. The motion shall set forth concisely the matters or controlling decisions which counsel believes the Court has not considered. No oral argument shall be heard unless the Court grants the motion and specifically orders that the matter re-argued orally.
Emphasis added.
Here the motion fails to identify any matters or controlling decisions that the Court has not considered. Rather, the motion is in substance an effort to reassert arguments that were made, and rejected, when the Court first considered the motion; to make new arguments that could have been made at that time; or to say that because the Movant now "apologize[s]" for things he did, subordination of his claims should not be imposed. None provide an appropriate basis for the entry of Bankruptcy Rule 9023 or Local Rule 9023-1 relief.
One such argument, which must be rejected in any event, is the contention that there were no fraudulent transfers incident to the April 22 Transactions "as FILB was solvent in April 2012." (Motion at 2). This new argument, like the related one previously rejected by this Court, see 2014 Bankr. LEXIS 2558 at *8-10, 2014 WL 2619690 at *3-4 (in which Mr. Turner contended that that there were no fraudulent transfers incident to the April 22 Transactions because reasonably equivalent value was obtained), must be rejected for the same reason. Solvency, like reasonably equivalent value, applies only to constructive fraudulent transfers. Where, as here, one has the actual intent to hinder, delay or defraud, solvency is irrelevant.
Motion at 8.
To be entitled to reargument, the moving party "must demonstrate that the court overlooked controlling decisions or factual matters 'that might materially have influenced its earlier decision.'" Likewise, as Judge Garrity of this Court observed in In re Jamesway Corp.:
In re Adelphia Business Solutions, Inc., 2002 Bankr. LEXIS 1604, *2, 2002 WL 31557665, *1 (Bankr. S.D.N.Y. 2002) (Gerber, J.) (internal quotation marks omitted), quoting Stylesite Marketing, Inc., 2001 Bankr. LEXIS 2299, *3, 2001 WL 13212, *1 (Bankr. S.D.N.Y. 2001) (Bernstein, C.J.) (in turn quoting Anglo-American Ins. Group, P.L.C. v. Calfed, Inc., 940 F.Supp. 554, 557 (S.D.N.Y. 1996)). See also Reifler v. Glaser, Weil, Finks, Jacobs, Howard & Shapiro (In re Pali Holdings, Inc.), 2011 Bankr. LEXIS 1503, *1-2, 2011 WL 1558422, *1 (Bankr. S.D.N.Y. 2011) (Gerber J.) (to same effect).
203 B.R. 543 (Bankr. S.D.N.Y. 1996).
The only proper ground on which a party may move to reargue an unambiguous order is that the court overlooked 'matters or controlling decisions' which, had they been considered, might reasonably have altered the result reached by the court.
Id. at 546 (internal quotation marks omitted).
Judge Garrity continued that:
This rule is calculated to "insure the finality of decisions and to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters."And as Chief Judge Bernstein noted in Stylesite Marketing:
The rule permitting reargument must be narrowly construed to avoid repetitive arguments on issues that the court has already fully considered. Further, the parties cannot advance new facts or arguments, and may not submit affidavits or new material.
Id. (quoting Carolco Pictures Inc. v. Sirota, 700 F.Supp. 169, 170 (S.D.N.Y. 1988) (Sweet, J.)).
2001 Bankr. LEXIS 2299 at *3, 2001 WL 13212 at *1 (citation omitted).
Here, in apparent ignorance of the requirements of Local Rule 9023-1, Mr. Turner has failed to identify any factual matter or controlling decisions that the Court overlooked. His motion amounts in substance to an effort to relitigate the matter based on a new, improved, factual record—forbidden under Stylesite Marketing, Jamesway, Adelphia Business Solutions and Pali Holdings—and to request that the Court revisit issues which the Court has fully considered.
While this Court has also held that a court can grant 9023-1 relief where there is "the need to correct a clear error or prevent manifest injustice," or to "show that newly discovered evidence has been unearthed," Mr. Turner's motion falls far short of making any such showing either. Motions of this character are not appropriate to obtain a "second bite at the apple."
See Fox v. Stein (In re Perry H. Koplik & Sons, Inc.), 2007 Bankr. LEXIS 5040, *12, 2007 WL 3076921, *4 (Bankr. S.D.N.Y. 2007) (Gerber, J.).
--------
The Court's decision stands.
SO ORDERED. Dated: New York, New York
Robert E. Gerber
United States Bankruptcy Judge