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In re Soundview Elite Ltd.

United States District Court, S.D. New York

April 13, 2015

In re SOUNDVIEW ELITE LTD., et al., Debtors,
CORINNE BALL, as Chapter 11 Trustee of SOUNDVIEW ELITE LTD., Appellee. ALPHONSE FLETCHER, JR., Appellant, Bankruptcy No. 13-13098(REG)


J. PAUL OETKEN, District Judge.

Alphonse Fletcher, Jr., asks the Court to reconsider its Opinion and Order dated December 12, 2014 (Dkt. No. 20) (the "Opinion"), with which the Court assumes familiarity. For the reasons that follow, Fletcher's motion is denied.

I. Legal Standard

"When a district court is acting as an appellate court in a bankruptcy case, " Federal Rule of Bankruptcy Procedure 8022[1] "provides the sole mechanism for filing a motion for rehearing." In re Motors Liquidation Co., No. 09 Civ. 7794 (RWS), 2010 WL 3565494, at *1 (S.D.N.Y. Sept. 10, 2010) (internal quotation marks omitted). The standard for granting such a motion, derived from Rule 40 of the Federal Rules of Appellate Procedure, requires the movant "to state with particularity each point of law or fact that the movant believes the district court or BAP has overlooked or misapprehended." Fed.R.Bankr.P. 8022(a)(2); see also In re Heath Global, Inc., No. 12 Civ. 8966 (RA), 2013 WL 6722773, at *1 (S.D.N.Y. Oct. 9, 2013). This standard is "strict." In re CBI Holding Co., No. 01 Civ. 0131 (KMW), 2010 WL 2287013, at *1 (S.D.N.Y. June 7, 2010). The purpose is not "to allow the movant to reargue his case." In re Motors Liquidation Co., 2010 WL 3565494, at *1 (internal brackets and quotation marks omitted). Rather, "[t]he sole purpose of rehearing is to direct the court's attention to a material matter of law or fact which it has overlooked in deciding the case, and which, had it been given consideration, would probably have brought about a different result." In re CBI Holding Co., 2010 WL 2287013, at *1 (internal quotation marks omitted). In addition, "neither new evidence nor new arguments are considered valid bases" for a motion for rehearing. In re Spiegel, Inc., No. 06 Civ. 13477 (CM), 2007 WL 2609966, at *2 (S.D.N.Y. Aug. 22, 2007); see also Freedom Holdings, Inc. v. Spitzer, 363 F.3d 149, 151 (2d Cir. 2004) (holding that courts do not usually address arguments made for the first time in a petition for rehearing pursuant to Federal Appellate Rule 40).

II. Discussion

Fletcher makes four arguments in support of his motion for rehearing. None of them warrants reconsideration of the Opinion.

First, Fletcher asserts that the Opinion "failed to follow applicable law as (a) the Court may not allow a fiduciary to serve while burdened with a conflict resulting from representation of an adversary of the estate and (b) a fiduciary's failure to disclose such conflicts is fraud." (Dkt. No. 21 ("Reconsideration Motion") at 14 (capitalization altered).) But the Court did not "fail[] to follow" this principle. Rather, the Court did not reach the issue of whether to remove a Chapter 11 trustee who has an undisclosed conflict of interest, as it held that Fletcher had not made an adequate showing that Trustee Corinne Ball in fact has a conflict of interest. ( See Opinion at 7-8 & n.6.)

Second, Fletcher argues that the Court erred in holding that he had not made a sufficient showing that Trustee Ball has a conflict of interest. In support of this argument, Fletcher points to the same vague connections between Ball and various allegedly interested parties that he highlighted for the Court in his initial brief on appeal. ( See Reconsideration Motion at 12-13, 16-20.) In fact, much of Fletcher's motion for reconsideration quotes passages-and even pages-from his brief. The Court has already considered these allegations and determined that they are insufficient to establish clear error on the part of the Bankruptcy Court in refusing to remove Trustee Ball. (Opinion at 7-8.)[2]

Third, Fletcher contends that the Court "misunderstood the record in part due to the misleading letter submitted by the Trustee." (Reconsideration Motion at 7 (capitalization altered).) Fletcher catalogues various ways in which he believes that the Court misunderstood the record, none of which is persuasive. Of particular note, Fletcher interprets the Bankruptcy Court's oral order too narrowly when he argues that it rejected only Gerti Muho's motion for removal of Trustee Ball on the ground that it was barred by laches, and not Fletcher's "joinder motion" for the same.[3] The Bankruptcy Court's decision on this point was stated generally, without reference to Muho's or Fletcher's motion in particular: "Then we turn to laches which is probably the strongest reason for... denial of the motion to dismiss the trustee because this case has gone on for months." ( See In re Soundview Elite, No. 13-13098 (REG) (Bankr. S.D.N.Y.), Dkt. No. 307, at 18-19.) Accordingly, the Court finds no reason to reconsider its decision to affirm the Bankruptcy Court's rejection of Fletcher's "joinder" in part because it was barred by the doctrine of laches.[4]

Finally, Fletcher takes issue with the Court's determination that he failed to file and serve his brief in a timely manner. ( See Opinion at 6.) Although he concedes that his brief was late, he argues that reconsideration is warranted because "[n]o party... was prejudiced" by the delay. (Reconsideration Motion at 15.) The Court's decision as to Fletcher, however, did not rely on the untimeliness of his filing; the Court also held that Fletcher's appeal fails on the merits. ( See Opinion at 6-8.) Accordingly, reconsideration of the Court's decision that Fletcher's brief was untimely would not change the result.

In sum, Fletcher has failed to establish any material point of law or fact that the Court overlooked or misapprehended in its Opinion and which probably would have brought about a different result.[5]

III. Conclusion

For the foregoing reasons, Fletcher's motion for rehearing is DENIED. The Clerk of Court is directed to close the ...

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