United States District Court, D. New Jersey
October 11, 2005.
HARRY A. RICHARDSON, pro se, Appellant,
TREACY, SCHAFFEL, MOORE & MUELLER, et al., Appellees.
The opinion of the court was delivered by: GARRETT BROWN Jr., District Judge
This matter comes before the Court upon pro se appellant
Harry A. Richardson's ("Appellant") motion for reconsideration of
this Court's August 29, 2005 Order denying Appellant's motion for
an extension of time to file his appellate brief and granting
appellee's cross-motion to dismiss the appeal for lack of
standing, and for a stay pending appeal. This Court, having
considered the parties' submissions and decided the motion
without oral argument, pursuant to FED. R. CIV. P. 78, and for
the reasons set forth in this Memorandum Opinion, will deny
Richardson Industrial Contractors, Inc. ("RICI"), filed a
voluntary petition for bankruptcy on May 16, 2003, beginning the
underlying bankruptcy proceeding, In re Richardson Industrial
Contractors, Inc. In a parallel adversary proceeding, Dobin v.
United States of America, Internal Revenue Service, appellees
Salvatore and Deanne Arnone ("Arnones") moved for summary judgment against all named parties on July 12, 2004. The Arnones
requested a judicial finding that two promissory notes upon which
they received judgment in the New Jersey Superior Court
represented secured claims against the RICI estate. Appellant
filed opposition to the Arnones' motion for summary judgment on
September 20, 2004. Andrea Dobin, the estate trustee ("trustee"),
cross-moved for summary judgment against the Arnones on the same
United States Bankruptcy Judge Ferguson held a hearing on
December 20, 2004, during which she granted the Arnones' motion
for summary judgment and denied the trustee's cross-motion. On
February 7, 2005, Judge Ferguson entered a final order granting
the Arnones' motion. The trustee moved to amend this order
pursuant to Federal Rules of Bankruptcy Procedure 9023 and 9024
on February 17, 2005. Although the Arnones opposed the motion to
amend, Appellant did not. Judge Ferguson held a hearing on the
trustee's motion on April 4, 2005, and requested the submission
of a consent order resolving the amendment of the summary
judgment order. Judge Ferguson signed the order on April 13,
2005, over Appellant's objection. The consent order concerned the
disposition of a trust fund set up to protect the interests of
RICI's creditors. The consent order created a trust
administration plan that recognized the Arnones' secured claim
and accounting for the disposition of future claims.
On April 13, 2005, Appellant moved to stay the consent order
pending appeal. Judge Ferguson denied the motion at a May 9, 2005
hearing. Judge Ferguson reasoned that Appellant "did not take a
position on the original Motion, and all the Consent Order did
was resolve a dispute over the terms of the Order. It is
inappropriate for Mr. Richardson to use this Motion as a belated
attempt to take a position on the original Motion." (Tr.,
Bankruptcy Case No. 032-6318 (KCF), May 9, 2005, at 33). While Appellant's request for a stay was pending, Appellant
filed a notice of appeal from Judge Ferguson's approval of the
consent order. Appellant timely moved for an extension of time to
file his appellate brief. The Arnones opposed Appellant's motion
and served a cross-motion to dismiss the appeal due to
Appellant's failure to file a statement of issues on appeal or
for lack of standing. On August 29, 2005, this Court issued an
opinion and order denying Appellant's motion and granting the
Arnones' cross-motion. The Court declined to dismiss the appeal
on the basis of failing to file a statement of issues on appeal.
However, the Court held that Appellant did not have standing to
appeal the consent order because he was not a "person aggrieved"
by Judge Ferguson's decision, see In re Dykes, 10 F.3d 184 (3d
Cir. 1993), and therefore his rights and interests were not
"directly and adversely affected pecuniarily." In re PWS Holding
Corp., 228 F.3d 224, 249 (3d Cir. 2000) (citation omitted).
Appellant filed the instant motion for reconsideration of the
order of dismissal on September 13, 2005. Appellant also seeks a
stay pending appeal.
A. Standard of Review
In the District of New Jersey, Local Rule 7.1(i) governs motion
for reconsideration. The movant has the burden of demonstrating
either: "(1) an intervening change in the controlling law; (2)
the availability of new evidence that was not available when the
court [issued its previous order]; or (3) the need to correct a
clear error of law or fact or to prevent manifest injustice."
Max's Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir.
1999) (citing North River Ins. Co. v. CIGNA Reinsurance Co.,
52 F.3d 1194, 1218 (3d Cir. 1995)). The standard for reconsideration is high and relief under the Rule is to be granted "very
sparingly." See Bowers v. Nat'l Collegiate Athletic Ass'n,
130 F. Supp. 2d 610, 613 (D.N.J. 2001) (citation omitted). The Court
will grant a motion for reconsideration only where its prior
decision has overlooked a factual or legal issue that may alter
the disposition of the matter. See id.; see also L. CIV. R.
7.1(i). "The word `overlooked' is the operative term in the
Rule." Bowers, 130 F. Supp. 2d at 612 (citation omitted).
B. Appellant Has Not Demonstrated That The Court's Prior
Opinion Overlooked Any Factual Or Legal Issues
Appellant argues that he is a "person aggrieved" by the consent
order, under the definition enunciated in In re Dykes.
Appellant fails, however, to identify any particular factual or
legal issues that were not recognized by the Court when first
addressing the case at hand. The standard imposed by Local Civil
Rule 7.1(i) requires more than the mere assertions of fact in
Appellant's brief. The Rule requires the brief to "set forth
concisely the matter or controlling decisions which the party
believes the Judge . . . has overlooked. . . ." L. CIV. R.
7.1(i). Appellant relies primarily on the definition from In re
Dykes cited by this Court in the prior opinion and argues for an
interpretation of "person aggrieved" that would include Appellant
in this scenario.
The Court had previously determined that Appellant "had no
personal financial stake in the future of the Arnones' secured
claim against the assets of his former company," (Mem. Op., Aug.
31, 2005, at 5-6), and was therefore not a "person aggrieved" for
the purposes of appellate standing in the bankruptcy context
because his rights and interests were not "directly and adversely
affected pecuniarily." In re PWS Holding Corp., 228 F.3d at 249
(citation omitted). This standard "is more stringent than the
constitutional test for standing." Id. (citing In re O'Brien Envtl. Energy, Inc., 181 F.3d 527, 530 (3d Cir. 1999)).
To meet the standard, Appellant would have to prove to the court
that his rights and interests were directly and adversely
affected pecuniarily by the Bankruptcy Court's order for the
Court to reconsider the prior holding. Appellant admits that he
is an unsecured creditor of RICI. (Appellant's Br. at 8). As the
Arnones contend, the particular disposition of secured claims,
such as theirs, has no bearing on whether unsecured creditors
will receive their claims (Arnones' Letter Br. at 3).
Consequently, Appellant is not a "person aggrieved" by the
Bankruptcy Court's order.
Appellant's argument does not contain either a matter or
controlling decision overlooked by the Court in issuing the
opinion, nor a cogent argument as to why the disposition of this
matter would be altered based upon his assertions. By virtue of
Appellant not presenting any issues the Court overlooked in
support of meeting the standard necessary to demonstrate that he
is a "person aggrieved" by the Bankruptcy Court's order,
Appellant has not met the high standard necessary for granting a
motion for reconsideration. Therefore, the Court denies
Appellant's motion for reconsideration.
Appellant also asks this Court to grant a stay pending appeal.
To receive a stay, the burden of proof is on Appellant to prove
the elements necessary for a preliminary injunction. See
Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86, 90-91 (3d Cir.
1992). Only in the Conclusion of Appellant's brief does he
quickly attempt to demonstrate some of the elements necessary to
meet that burden. The short arguments are insufficient and this
Court shall deny Appellant's motion for a stay. III. CONCLUSION
For the reasons stated herein, Appellant's motion for
reconsideration of this Court's August 29, 2005 Order is denied.
Appellant's motion for a stay pending appeal is also denied.
© 1992-2005 VersusLaw Inc.