Opinion
Case No. 02-02887 (GAC), Adv. No. 02-0113.
May 31, 2007
DECISION AND ORDER
The debtor filed this adversary proceeding, alleging that the Puerto Rico Highway and Transportation Authority ("PRHTA") breached six construction contracts, by primarily failing to pay for delays, changes and inefficiencies allegedly caused by PRHTA. The debtor sought the sum of $14,588,375.36 in incidental and contract damages.
Trial commenced in November of 2006 at which time the debtor withdrew a sub-contractor claim it was bringing on behalf of Bonneville Construction, S.E. ("Bonneville") related to the Las Cumbres Avenue project. Debtor's counsel indicated that he tried to contact the representatives of Bonneville in preparation for trial and received no response and thus the debtor withdrew the claim from the adversary proceeding. The trial continued in December and March and is scheduled to reconvene in June.
On January 9, 2007, Bonneville filed an urgent motion requesting intervention (dkt. #246). Bonneville indicated that it is owed $234,463.55 related to the Las Cumbres project and argued that allowing it to intervene would not cause an undue delay of the case. Bonneville also argued that the request to intervene was timely, that it has an interest related to the transaction base of this proceeding and that disposition of the proceeding will threaten its ability to protect its interest, which only Bonneville can adequately represent.
The Court heard arguments related to this motion at the trial on March 9, 2007, at which time the Court denied Bonneville's request for intervention. The Court concluded that because of the late stage of the proceedings, it would be highly burdensome for PRHTA to consider this additional claim. The Court indicated that the claim could be raised in another forum, but that it was too late to allow the claim in the adversary proceeding. Bonneville argued that there was plenty of time to conduct discovery and prepare the case. The Court allowed Bonneville ten days to seek reconsideration in writing.
On March 19, 2007, Bonneville filed a motion for reconsideration (dkt. #266). Bonneville suggests that the Court consider how far the proceedings had gone when it sought to intervene, the prejudice which the delay resulting from the intervention may cause to other parties and the reason for the delay. Bonneville claims that PRHTA can not be prejudiced because it was aware of Bonneville's claim up until the time it was withdrawn from the trial. Bonneville again argued that there was sufficient time for discovery and that there was no delay in making the claim since it was previously included in the adversary proceeding.
PRHTA filed a response to Bonneville's motion for reconsideration (dkt. #273). PRHTA contends that Bonneville fails to satisfy the standard for obtaining reconsideration; that Bonneville failed to include the pleading in its request to intervene; that Bonneville's request for intervention was caused by its failure to cooperate with the debtor; that PRHTA will be prejudiced by the introduction of new evidence and witnesses at this stage of the proceedings; and that Bonneville is protected in another forum since it has a claim against the debtor in the bankruptcy case.
DISCUSSION
The Court largely invited Bonneville to seek reconsideration of the Court's initial determination to deny Bonneville's intervention. Nonetheless, the Court expected Bonneville to convincingly explain why the Court's determination should be reconsidered. A motion for reconsideration "must demonstrate the reason why the court should reconsider its prior decision and must set forth facts or law of a strongly convincing nature to induce the court to reverse its earlier decision." Jimenez v. Rodriguez (In re Rodriguez), 233 B.R. 212, 219 (Bankr. D.P.R. 1999), aff'd, 17 Fed. Appx. 5 (1st Cir. 2001). A motion for reconsideration is not used to "repeat old arguments previously considered and rejected . . ." Nat'l Metal Finishing Co. V. BarclaysAmerican/Commercial, Inc., 899 F.2d 119, 123 (1st Cir. 1999).
Bonneville's sub-contractor claim was dismissed by the debtor in November of 2006, after counsel for the debtor received no response to direct inquiries to the representatives of Bonneville. Thereafter, Bonneville waited until January 9, 2007 to seek to intervene as a co-plaintiff. Bonneville did not include a proposed complaint or other pleading. Bonneville conceded that it intended to introduce evidence and witnesses in a trial in which the plaintiff has already concluded its case in chief.
The Court has concluded that Bonneville's request for intervention in the adversary proceeding was untimely. The trial had already commenced. PRHTA would clearly be prejudiced in the reopening of discovery and engaging in the preparation necessary to defend against Bonneville's claim, which Bonneville is also making against the debtor in the bankruptcy case. Bonneville has failed to give any explanation for its tardiness in seeking intervention. Bonneville's intervention would disrupt and further delay these proceedings. Accordingly, the request for reconsideration will be denied.
ORDER
WHEREFORE IT IS ORDERED that the motion for reconsideration (dkt. #266) of the court's order denying Bonneville Construction S.E.'s request to intervene in this adversary proceeding shall be, and it hereby is, DENIED.
SO ORDERED.