Opinion

1 IN THE UNITED STATES BANKRUPTCY COURT FOR

THE DISTRICT OF PUERTO RICO

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4 IN RE: CASE NO. 14-06368

Chapter 11

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ROBERTO SEBELEN MEDINA

6 BETSIE MARIE CORUJO

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Debtor (s)

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ROBERTO SEBELEN MEDINA Adversary No. 14-00194

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BETSIE MARIE CORUJO

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Plaintiff (s)

11 vs.

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BANCO POPULAR DE PUERTO RICO

13 ADSUAR MUNIZ GOYCO SEDA

PEREZ-OCHOA, PSC

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15 Defendant (s) FILED & ENTERED ON 10/02/2015

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OPINION AND ORDER

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Before the court is a Motion to Alter or Amend Judgment Under Rule 9023 of the Federal

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Rules of Bankruptcy Procedure and/or for Reconsideration filed by Debtor/Plaintiffs (Dkt. No.

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21 72) Roberto Sebelen Medina and Betsie Marie Corujo Martinez (hereinafter “Plaintiffs”) and

22 Adsuar Muniz Goyco Seda Perez-Ochoa’s (hereinafter “Defendant”), Motion for

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Reconsideration (Dkt. No. 73), followed by Defendant and Banco Popular de Puerto Rico’s (

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hereinafter “BPPR”) oppositions to Plaintiffs’ motion (Dkt. No’s. 75 and 76, respectively) and

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Plaintiffs’ replies to Defendant and Banco Popular de Puerto Rico’s oppositions (Dkt. No’s 78

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1 and 80, respectively). For the reasons set forth below, Plaintiffs’ motion for reconsideration and

2 Defendant’s motion for reconsideration are both DENIED.

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I. Parties’ arguments for reconsideration

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Plaintiffs allege that the adversary proceeding is predominantly “core” as to the whole

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complaint, therefore, the court has jurisdiction and venue over the matter, having a possibility to

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7 obtain a complete resolution of the issues. Plaintiffs also pray leave to amend the fraud pleadings

8 within reasonable terms. On the other hand, Defendant alleges that the reconsideration of the

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ruling is appropriate because the court did not assert Defendant’s jurisdictional arguments,

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statute of limitations defense, and immunity as legal counsel. Defendant also alleges that

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Plaintiffs’ claim against Defendant is a “non-core” matter, therefore, Defendant does not consent

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13 to such judgment. Defendant further recommends that the court should dismiss the complaint

14 against Defendant with prejudice, in order to prevent the litigation of a claim that has already

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been dismissed for failure to comply with Fed. R. Civ. P. 9(b). BPPR opposes Plaintiffs’ claims,

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alleging that Plaintiffs’ motion does not satisfy the requisites under Fed. R. Civ. P. 59(e) for a

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18 reconsideration of the matter.

19 II. Standard of Review

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“A ‘motion to reconsider’ is not among the motions recognized by the Federal Rules of Civil

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Procedure.” Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir.1991). The federal courts

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have consistently stated that a motion so denominated which challenges the prior judgment on the

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merits will be treated as either a motion ‘to alter or amend’ under Fed. R. Civ. P. 59, or a motion for

25 ‘relief from judgment’ under Rule 60.

In conformity with Fed. R. Civ. P. 59, a party seeking reconsideration “must either

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1 clearly establish a manifest error of law or must present newly discovered evidence.” Marie v.

2 Allied Home Mortgage Corp., 402 F. 3rd 1, 7 n. 2 (1st Cir. 2005) quoting Pomerleau v. W.

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Springfield Pub. Sch., 362 F. 3d 143, 146 n. 2 (1st Cir. 2004). In Marie, the First Circuit also

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cited a leading treatise, noting four grounds for granting a motion for reconsideration under Fed.

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R. Civ. P. 59(e). The grounds are “manifest errors of law or fact, newly discovered or previously

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7 unavailable evidence, manifest injustice, and an intervening change in controlling law.” Marie v.

8 Allied Home Mortgage Corp., 402 F 3rd at 7 (citing 11 C. Wright et al., Federal Practice &

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Procedure § 2810.1 (2d ed. 1995)).

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Reconsideration of a judgment under Rule 59 is an extraordinary remedy that is used

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12 sparingly and only when the need for justice outweighs the interests advanced by a final

13 judgment. It is directed at allowing a court to correct its own errors. White v. New Hampshire

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Dept. of Employment Security, 455 U.S. 445, 450 (1982). Moreover, it is well settled that rule

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59(e) does not exist to give parties a second chance to prevail on the merits generally. Rule

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59(e) is not to be used to reassert arguments and theories previously rejected by the Court. Rule

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18 59(e) motions are to be “aimed at reconsideration, not initial consideration.” Harley-Davidson

19 Motor Co., Inc. v. Bank of New England-Old Colony, N.A., 897 F.2d 611, 616 (1st Cir. 1990).

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See also, Nat’l Metal Finishing Co. v. BarclaysAmerican/Commercial, Inc., 899 F. 2d 119, 123

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(1st Cir. 1999) (Rule 59 (e) does not allow the losing party to rehash old arguments, previously

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23 considered and rejected). Thus, parties should not use Rule 59(e) motions to raise arguments

24 which could, and should, have been made before judgment issued. Id. (quoting Federal Deposit

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Ins. Corp. v. Meyer, 781 F.2d 1260, 1268 (7th Cir.1986)). “Motions under rule 59(e) must either

clearly establish a manifest error of law or must present newly discovered evidence . . . [t]hey

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1 || may not be used to argue a new legal theory.” Id.

II. Legal Analysis

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The dismissal of the complaint in its entirety and the sua sponte modification of the sta

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5 further the goal of judicial economy and act in the best interest of justice. In re Concepcion, 49

6 ||B.R. 622, 624 (Bankr. D.P.R. 2013), citing, IBM v. Fernstrom Storage and Van Co., 938 F.2

7 11731, 737 (7th Cir.1991) (“[w]here the stayed non-bankruptcy litigation has reached an advance

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stage, courts have shown a willingness to lift the stay to allow the litigation to proceed.”)

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McDowell v. Stein, 415 B.R. 584 (S.D. Fla. 2009) ([a] bankruptcy court could lift automatic stay su

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11 || Sponte in order to permit appeals in state-court action against debtor to proceed.) Furthermore,

12 ||neither party has adequately addressed the four grounds above-mentioned in order for this Cou

13 || to reconsider its judgment under Fed. R. Civ. P. 59(e). Again, upon either party prevailing i

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state court, there still may be bankruptcy law issues to be decided in front of this Court.

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IV. Conclusion

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17 WHEREFORE, IT IS ORDERED that the motion for reconsideration of judgment filed b

18 || the Plaintiff is hereby DENIED. And, the motion for reconsideration of judgment filed by th

Defendant is hereby DENIED. The adversary proceeding remains dismissed in its entirety.

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SO ORDERED

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39 In San Juan, Puerto Rico, this 2” day of October, 2015.

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25 Brian K. Tester

U.S. Bankruptcy Judge

for the District of Puerto Rico