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Bankruptcy | Case Law | Rule 59
RULE 59
In re International Fibercom, Inc., 503 F.3d 933, 944 (9th Cir. 2007)
“Under Rule 59(a), made applicable to bankruptcy proceedings by Federal Rules of
Bankruptcy Procedure 9023, a court has discretion to reopen a judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law, or make new findings and conclusions [citations omitted]. . . .The bankruptcy court did not abuse its diescretion in denying [the] request for a full evidentiary hearing. There was adequate factual basis for the bankruptcy court’s decision.” In re Captain Blythers, Inc., 311 B.R. 530 (9th Cir. B.A.P. 2004), aff’d, 182 Fed. Appx. 708 (2006). The rules do not recognize a motion for reconsideration. Since the motion in question was brought within 10 days of entry of judgment, it is considered a motion to amend findings under Rule 52, or a motion to alter or amend judgment under Rule 59. In re Brewster, 243 B.R. 51 (9th Cir. B.A..P 1999) Rule 59(e) motion for reconsideration tolled time for appeal of order confirming reorganization plan. In re Weisberg, 193 B.R. 916 (9th Cir. B.A.P. 1996), aff’d in part, rev’d in part, 136 F/3d 655 (9th Cir. 1998), cert. denied, Wolkowitz v. Shearson Lehman Bros., Inc., 525 U.S. 826 (1998)“There are three grounds for granting new trials under 59(a)(2):
1. Manifest error of law, 2. Manifest error of fact, and 3. Newly discovered evidence Brown v. Wright, 588 F.2d 708, 710 (9th Cir. 1978) (citing 6A Moore’s Federal Practice at ¶59.07 at 59-94). In re Carolina Triangle Ltd., 166 B.R. 411 (9th Cir. B.A.P. 1994) A postjudgment motion that could have been brought under Rule 59(e) is properly construed as a 59(e) motion if brought within 10 days of the judgment U.S. v. RG & B Contractors, Inc., 21 F.3d 952 (9th Cir. 1994) 10 day rule applies, even the attorney fees not yet awarded In re Levine, 162 B.R. 858 (9th Cir. B.A.P. 1994) Limitations period for reconsideration motion runs from entry of formal written order rather than from entry of minute order. The 9th Cir. treats a timely filed motion for reconsideration as a motion to amend a judgment In re Crystal Sands Properties, 84 B.R. 665, 668 n. 3 (9th Cir. B.A.P. 1988) But see In re Donovan, 871 F. 2d 807 (9th Cir. 1989) School District IJ v. AC and S, Inc. 5 F3d 1255, 1263 (9th Cir. 1993), cert. denied, 512 U.S. 1236 (1994) Court may reconsider its grant of summary judgment under either FRCP 59(e) or 60(b) Reconsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law. See All Hawaii Tours Corp. v. Polynesian Cultural Center, 116 FRD 645, 648 (D. Hawaii 1987) rev’d on other grounds, 855 F.2d 860 (9th Cir. 1988), published at 861 F.2d 536 (withdrawn from bound volume). There may also be other, highly unusual, circumstances warranting reconsideration. The overwhelming weight of authority is that the failure to file documents in an original motion or opposition does not turn the late filed documents into “newly discovered evidence.” See Waltman v. International Paper Co., 875 F.2d 468, 473-74 (9th Cir. Cir 1989) materials available at time of filing opposition to summary judgment would not be considered with motion for reconsideration). Trentacosta v. Frontier Pac Aircraft Indus. Inc., 813 F.2d 1553, 1557 and n.4 (9th Cir. 1987) court did not abuse its discretion in refusing to consider affidavits opposing summary judgment filed late). Frederick S. Wyle Professional Corp. V Texaco, Inc., 764 F.2d 604, 609 (9th Cir. 1985) evidence available to party before it filed its opposition was not “newly discovered evidence” warranting reconsideration of summary judgment ). Jones v. Aero/Chem Corp., 921 F.2d 875 (9th Cir. 1990) Newly discovered evidence does not warrant new trial in absence of showing that outcome would be different Adriana Int’l. Corp. v. Thoeren, 913 F.2d 1406, 1416 (9th Cir. 1990), cert. denied, 498 U.S. 1109 (1991) 10 day time limit applies to motion to reconsider amended judgment Osterneck v. Ernst & Whinney, 489 U.S. 169, 109 S.Ct. (1989)