Opinion
Case No. 02-16172
September 16, 2003
MEMORANDUM OF OPINION AND ORDER
The Certified Class of Ohio Residential Customers of Level Propane Gases, Inc. ("Certified Class" or "Movant") seeks reconsideration of this Court's Order of July 11, 2003, which allowed the Debtors to reject the prepetition settlement agreement Debtors entered into with the Certified Class. The Court acquires core jurisdiction of this matter pursuant to 28 U.S.C. § 157(a) and(b), 28 U.S.C. § 1334, and General Order No. 84 of this district. Upon a duly noticed hearing, an examination of the parties' pleadings and the record, generally, the following factual findings and conclusions of law are herein made:
This Court previously ruled on the Motion For Limited Relief from the Automatic Stay filed by the Equal Justice Foundation on behalf of the Certified Class, and a Motion to Reject a Prepetition Settlement filed by Level Propane Gases, Inc. (Debtors). In an Order, dated July 11, 2003, this Court granted Debtors' motion to reject the prepetition settlement. Therein, it was determined that the prepetition settlement between the Debtors and the Certified Class constituted a contract, that the contract was executory because material performance obligations remained on both sides, that this executory contract was subject to rejection under § 365 of the Bankruptcy Code, and that the Debtors had exercised sound business judgment in seeking rejection of the settlement.
The Certified Class contends that there are five bases for this Court to reconsider its Order. Those bases are as follows: 1) Steven Sues was not qualified to testify for the Debtors regarding the rejection of the settlement; 2) the time for determining whether or not an agreement is deemed executory is not always at the time the bankruptcy is filed; 3) the Debtors failed to exercise sound business judgment in making the decision to reject the settlement; 4) Debtors failed to disclose potential conflicts in this matter until the matter was concluded; and 5) the Certified Class was prejudiced by the Debtors' continuing obligation to produce discovery.
The Debtor contends that the motion for reconsideration be denied because the Certified Class has failed to present any newly discovered evidence that was not available at the time of the trial or point to evidence in the record that clearly establishes a manifest error of law or fact.
Motions for reconsideration are brought under Bankruptcy Rule 9023. Bankruptcy Rule 9023 provides for the application of Rule 59 of the Federal Rules of Civil Procedure to bankruptcy proceedings. Although a motion for reconsideration is not mentioned in the Federal Rules of Civil Procedure, it is often treated as a motion made under Rule 59(e).McDowell v. Dynamics Corp. of America, 931 F.2d 380 (6th Cir. 1991). The purpose of a motion to alter or amend judgment under Rule 59(e) is to have the court reconsider matters "properly encompassed in a decision on the merits." Generally, "[m]otions to alter or amend judgment may be granted if there is a clear error of law, newly discovered evidence, an intervening change in the controlling law, or to prevent manifest injustice." GenCorp., Inc. v. American Intern. Underwriters, 178 F, 3d 804, 834 (6th Cir. 1999) (citations omitted). A motion for reconsideration is not designed to give a dissatisfied litigant an opportunity to relitigate matters already decided, nor is it a substitute for appeal. Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998) (explaining that "[a] motion under Rule 59(e) is not an opportunity to re-argue a case").
Herein, none of the required elements of Fed.R.Civ.P. 59(e) has been demonstrated persuasively. Specifically, the Movant has failed to demonstrate that there is any new evidence for this Court to consider. Nor has it demonstrated that this Court made a manifest error of law upon which the motion for reconsideration could be granted. Rather, the primary focus of Movant's argument is to present, once again, the issues and evidence that this Court has considered and decided.
As the first basis for reconsideration, the Movant repeats its objection to Steven Sues testimony, however, this Court made its ruling on that objection at the July 1, 2003 hearing and this Court's Order has issued. This Court's determination that the Debtors exercised sound business judgment in rejecting the settlement agreement was based on the record in its entirety and not on Mr. Sues testimony alone.
The second basis the Movant offers for reconsideration is case law regarding the time at which a contract is to be deemed executory. The Movant cites to case law to which this Court is neither bound nor persuaded by to change its previous order. This Court still finds that the time for determining the executory nature of a contract is the date on which the bankruptcy petition is filed. The case law presented by the Movant does not constitute new law and does not establish a manifest error by this Court.
Movant, in its third basis for reconsideration, once again, challenges the soundness of Debtor's decision to reject the settlement agreement. The Movant offers no new evidence on this point and only restates evidence that was previously presented or could have been presented at the prior hearing. This Court found in its previous Order that the business judgment of the Debtor in rejecting the settlement agreement was sound, and the basis for this finding was the entire record.
The Certified Class next contends that reconsideration is needed in light of Debtors' counsel's disclosure that it "`has represented, currently represents and most likely will represent' the Ohio Attorney General." Movant's Reconsideration Motion, p. 6 (quoting Second Supplemental Verified Statement, ¶ 20, p. 7). There has been no showing by the Certified Class that the matters in which Debtors' counsel represents the Ohio Attorney General pose an actual or potential conflict with matters before this Court.
No other basis has been demonstrated, persuasively, to warrant further consideration of this Court's Order entered on July 11, 2003.
Accordingly, the motion for reconsideration is hereby denied. Each party is to bear its respective costs
IT IS SO ORDERED.
JUDGMENT
A Memorandum Of Opinion And Order having been rendered by the Court in this matter,
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Motion of the Certified Class of Ohio Residential Customers of Level Propane Gases, Inc. For Reconsideration of the Court's Order of July 11, 2003 Allowing Debtors to Reject Prepetition Settlement Agreement Between Certified Class of Ohio Residential Customers of Level Propane Gas, Inc. and Level Propane Gases, Inc. is hereby denied. Each party is to bear its respective costs.
IT IS SO ORDERED.