RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 In re G.A.D., Inc. No. 01-2235 ELECTRONIC CITATION: 2003 FED App. 0285P (6th Cir.)
File Name: 03a0285p.06 _________________ COUNSEL
UNITED STATES COURT OF APPEALS ARGUED: Laurel A. Stuart-Fink, LAUREL STUART-
FOR THE SIXTH CIRCUIT FINK & ASSOCIATES, West Bloomfield, Michigan, for _________________ Appellant. Tony F. Di Ponio, CALHOUN, DI PONIO & GAGGOS, Lathrup Village, Michigan, for Appellee.
In re: G.A.D., X ON BRIEF: Laurel A. Stuart-Fink, LAUREL STUART- INCORPORATED , - FINK & ASSOCIATES, West Bloomfield, Michigan, for Appellant. Tony F. Di Ponio, CALHOUN, DI PONIO & Debtor. - GAGGOS, Lathrup Village, Michigan, for Appellee.
- No. 01-2235
_______________________ -
> _________________ ,
DONNA EGLINTON , - OPINION Plaintiff-Appellant, - _________________ -
v. - BOYCE F. MARTIN, JR., Chief Circuit Judge. Donna - Eglinton appeals the district court’s affirmance of a - bankruptcy court decision to deny reconsideration of a motion HUGH LOYER and GEORGE - to vacate. For reasons stated below, we AFFIRM.
CHAPEL, -
Defendants-Appellees. - In September 1996, Ronald Korte, Eglinton’s boyfriend, - filed a petition for relief under Chapter 11 of the United States - Bankruptcy Code, which was converted later to a Chapter 7 N bankruptcy. On May 7, 1997, while his bankruptcy was Appeal from the United States District Court pending, Korte entered a lease agreement with defendants for the Eastern District of Michigan at Detroit. Loyer and Chapel for nonresidential property in White Lake, No. 00-75251—Denise Page Hood, District Judge. Michigan. The bankruptcy court approved the lease agreement on April 24, 1997. The lease agreement contained Argued: March 27, 2003 a clause stating Korte could not assign, transfer, or sublet without the written consent of Loyer and Chapel.
Decided and Filed: August 13, 2003 Despite the prohibition, on May 12, 1997, Korte purportedly assigned the lease agreement to G.A.D., Inc., a Before: MARTIN, Chief Circuit Judge; KENNEDY and Michigan corporation Eglinton owns, without notice to DAUGHTREY, Circuit Judges. creditors or permission to do so from the bankruptcy court or
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landlords. We will refer to the transfer as an assignment, Eglinton responded to Loyer and Chapel’s attorney on although its actual legal status is indeterminate. August 24 and 25 to the notice of removal and motion for dismissal, respectively, several days after the time for When the landlords learned of the transaction in December response expired. The bankruptcy court conducted a hearing of 1997, they entered into an agreement with the bankruptcy on August 26. Eglinton, who appeared pro se, claims she did trustee that he would be the only entity who could possess the not have notice that the court would hear the motion to premises. Korte objected, but the bankruptcy court approved dismiss in addition to the notice of removal on that day. The the agreement. The district court affirmed the bankruptcy bankruptcy court eventually dismissed Eglinton’s claims with court’s order on appeal. prejudice. Loyer and Chapel thereafter entered into an agreement with the trustee of the G.A.D. bankruptcy to Meanwhile, G.A.D. filed a notice of lis pendens on the purchase G.A.D.’s property. Eglinton subsequently returned premises in Oakland County Circuit Court and a complaint to state court with the suit. The state circuit court dismissed against the landlords. This first lawsuit sought a declaration her claims, and she appealed to the Michigan Court of that the assignment was valid and enforceable, injunctive Appeals. Eventually, the state trial court dismissed her claim relief, and monetary damages. Loyer and Chapel removed on remand. from state court to Korte’s bankruptcy case as an adversary proceeding. G.A.D. filed an objection to the notice of On July 24, 2000, almost a year after the hearing in removal, but the bankruptcy court found removal was bankruptcy court, Eglinton filed a motion to vacate the appropriate because the state court action was inextricably bankruptcy court order of dismissal, pursuant to Federal Rule intertwined with the bankruptcy case and related, pursuant to of Civil Procedure 60(b). The bankruptcy court entered an 11 U.S.C. §157(c)(1). The bankruptcy court then granted order on September 8, 2000, denying Eglinton’s motion to Loyer and Chapel’s motion to dismiss with prejudice. vacate. Eglinton filed a motion to reconsider, and the bankruptcy court denied the motion to reconsider. Eglinton On September 22, 1998, G.A.D. filed a petition for Chapter appealed from this last order to the United States District 11 bankruptcy. G.A.D. asserted a leasehold interest in the Court for the Eastern District of Michigan, which denied her property. G.A.D’s bankruptcy case was converted to a appeal and affirmed the order denying her motion to Chapter 7 proceeding, which vested the Chapter 7 trustee with reconsider. She filed a timely notice of appeal from the any interest G.A.D. had in the leasehold. district court’s decision.
On June 13, 1999, Eglinton filed a complaint in her name We review denial of a Rule 60(b) motion for abuse of in Oakland County Circuit Court against Loyer and Chapel, discretion. Smith v. Kincaid, 249 F.2d 243, 245 (6th Cir. making the same claims as the former suit, except the latter 1957). The burden is on the movant to bring herself within alleged fraud and misrepresentation, seeking monetary the provisions of Rule 60(b). Id. We “find an abuse of damages for relief. Loyer and Chapel filed motions to discretion only if we have ‘a definite and firm conviction that remove Eglinton’s suit to the G.A.D. bankruptcy and to the court below committed a clear error of judgment in the dismiss on July 28. Response from Eglinton was due fifteen conclusion it reached upon a weighing of the relevant days later. On August 16, Loyer and Chapel filed a factors.’” Union Oil Co. of Cal. v. Serv. Oil Co. 766 F.2d certification of no response to the dismissal motion. 224, 227 (6th Cir. 1985)(quoting Taylor v. United States Parole Com’n., 734 F.2d 1152, 1155 (6th Cir.1984)). A
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lower court abuses its discretion when it relies on clearly reasons to excuse her from the requirement to file a timely erroneous findings of fact, improperly applies the law, or uses notice of appeal from bankruptcy court to the district court an incorrect legal standard. Romstadt v. Allstate Ins. Co., 59 and the requirement to file a timely motion under Rule 60(b). F.3d 608, 615 (6th Cir. 1985). The Supreme Court has instructed courts to hold pleadings filed by pro se litigants to a less stringent standard than those Federal Rule of Civil Procedure 60(b) provides that a court filed by lawyers, Haines v. Kerner, 404 U.S. 519, 520 (1972), may relieve a party or party’s representative from a final but has“never suggested procedural rules in ordinary civil judgment, an order, or a proceeding under certain litigation should be interpreted so as to excuse mistakes by circumstances. The pertinent circumstances here are those who proceed without counsel.” McNeil v. United “mistake, inadvertence, surprise, or excusable neglect,” Fed. States, 508 U.S. 106, 113 (1993). R. Civ. P. 60(b)(1), and circumstances where “the judgment is void,” Fed. R. Civ. P. 60(b)(4). We hold that the district court did not abuse its discretion when it denied Eglinton’s motion to reconsider based upon Time limitations govern the filing of a Rule 60(b) motion, Rule 60(b)(1). The procedural law and deadlines are but the rule states generally that “[t]he motion shall be made straightforward. Federal Rule of Bankruptcy Procedure 9024 within a reasonable time.” We have held that “reasonable provides that Federal Rule of Civil Procedure 60 applies in time” under 60(b) means that if a reason to set aside the cases under the Bankruptcy Code. Mirroring the federal judgment is known within the time for filing notice of appeal, rules, Local Rule 9024-1 of the Bankruptcy Court for the a motion should be brought under Rule 60(b)(1) during that Eastern District of Michigan states: period. Barrier v. Beaver, 712 F.2d 231, 234-35 (6th Cir. 1983). Regardless of circumstances, no court can consider a Motion to Alter or Amend Order or Judgment or for motion brought under Rule 60(b)(1), (2), or (3) a year after Rehearing or Reconsideration judgment. Fed. R. Civ. P. 60(b); McDowell v. Dynamics (a) Time. A motion to alter or amend an order or Corp. of America, 931 F.2d 380, 384 (6th Cir. 1991). Motions judgment and a motion for rehearing or reconsideration under subsections (4), (5), and (6) may be made within a shall be served not later than 10 days after entry of such “reasonable time,” which we have determined is dependent order or judgment. upon the facts in a case, including length and circumstances of delay in filing, prejudice to opposing party by reason of the Eglinton filed her motion almost a year after the bankruptcy delay, and circumstances warranting equitable relief. Olle v. court entered judgment. By failing to meet deadlines for a Henry & Wright Corp., 910 F.2d 357, 365 (6th Cir. 1990). response to the motion to dismiss and to file a notice of The time for filing a notice of appeal from a judgment of the appeal of the bankruptcy court’s decisions, she did not bankruptcy court to the district court is ten days from entry of comport with procedural rules. the judgment under Bankruptcy Rule 8002.
Eglinton argues that she did not timely respond to the Eglinton’s first claim for relief is based on her assertion that motion to dismiss because she was unaware that the notice of her failure to file a motion to vacate or for reconsideration of removal had no effect on the procedures required with respect the bankruptcy court’s dismissal is a result of excusable to the dismissal motion, essentially assuming no response was neglect under Rule 60(b)(1). She argues that proceeding as a necessary. The notice attached to the motion to dismiss, pro se plaintiff and pursuing the matter in state court are however, states in very plain language that she had fifteen
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days to file a response or the court might decide she did not de novo review of matters to which any party has timely oppose the motion and rule against her. Though she was a objected. Id. Section 157(b)(3) provides that the bankruptcy pro se litigant, procedural rules were available to her as they judge shall determine if a proceeding is core or related either are to all persons appearing before courts, and if unsure of the on any party’s timely motion or on the judge’s own motion. procedural requirements, she could have clarified them with In making the ruling, the court looks at the form and the the clerk’s office. substance of the proceeding. Sanders Confectionary Prods., Inc., v. Heller Fin., Inc., 973 F.2d 474, 483 (6th Cir. 1992)
Though Eglinton asserted in the September 2000 (citing In re Wolverine Radio Co., 930 F.2d 1132, 1144 (6th bankruptcy court hearing, as she does here, that Loyer and Cir. 1991). “A core proceeding either invokes a substantive Chapel did not comply with local rules so that they are being right created by federal bankruptcy law or one which could held to a less stringent application of the rules than she, this not exist outside of the bankruptcy.” Id. allegation does not cure the defects in neglect of the deadlines. Voicing procedural grievances a year after the If the dispute over the lease was not a core proceeding, then occurrence is inappropriate. Rather, the appropriate time to the bankruptcy judge was without power to enter an order to voice that complaint was at the first bankruptcy court hearing dismiss, and the order would be void. Other circuits have in 1999 or in motions properly filed then. determined, as quoted by the Eighth Circuit in Kocher v. Dow Chem. Co., 132 F.3d 1225, 1230 (1997), that a Rule 60(b)(4)
Eglinton’s second claim for relief asserts that the motion will succeed only if the lack of subject matter bankruptcy court had no jurisdiction over the claims against jurisdiction was “so glaring as to constitute ‘a total want of Loyer and Chapel, rendering the court’s judgment dismissing jurisdiction,’ ” (quoting Kansas City S. Ry. v. Great Lakes her claim void. Under Rule 60(b)(4), if the rendering court Carbon Corp., 624 F.2d 822, 825, (8th Cir.)(en banc), cert. lacked subject matter jurisdiction, the underlying judgment is denied, 449 U.S. 955 (1980)), or “‘no arguable basis’ for void, and it is per se an abuse of discretion to deny a jurisdiction existed,” (quoting Nemaizer v Baker, 793 F.2d 58, movant’s motion to vacate. Antoine v. Atlas Turner, Inc., 66 65 (2d Cir. 1986)). F.3d 105, 108 (6th Cir. 1995).
Eglinton’s jurisdictional argument claims that the lease Title 28, chapter 6, governs the jurisdiction and powers of assignment dispute was not a core proceeding in the Chapter bankruptcy courts. Under 28 U.S.C. § 157 (b)(1), bankruptcy 7 bankruptcy proceeding. Nevertheless, we conclude that she judges may hear and determine core proceedings arising has not shown a total want of jurisdiction. In removing the under the bankruptcy code and may enter orders and suit filed by G.A.D. from state court to the Korte bankruptcy, judgments in those proceedings. Core proceedings are the bankruptcy court found that resolving the dispute over the defined in a non-exclusive list at section 157(b)(2). The leasehold would require examining the purported assignment significance of whether a proceeding is core or non-core is and deciding if the transfer was valid, as well as analyzing that the bankruptcy judge may hear non-core proceedings section 365 of the bankruptcy code governing executory related to bankruptcy cases but cannot enter judgments and contracts and unexpired leases. Though not expressly using orders without consent of all parties to the proceeding. See the words “core proceeding,” the bankruptcy court found that § 157(c). Without consent from the parties, a district judge the controversy was inextricably intertwined with the must make final determinations after considering the findings bankruptcy case. In Eglinton’s mirror-image suit, the very and conclusions of the bankruptcy judge and after conducting same leasehold is in dispute; thus, validity of the transfer will
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again require the court to make a determination of the leasehold’s status in the bankrupt estate of G.A.D. Additionally, determination of the fraud and misrepresentation issue Eglinton raises would, as the bankruptcy court found with respect to claims in the first suit, require determination of the validity of the assignment and the right to posses the premises. This goes to the heart of an estate asset.
Even if we were to decide that the dispute was not a core proceeding, procedural flaws would again defeat Eglinton’s claims. A claimant has ten days in which to appeal a decision of the bankruptcy court to the district court. Eglinton chose instead to pursue her suit again in state court. “A party may not use a Rule 60(b)(4) motion as a substitute for a timely appeal.” Id.
In pursuing virtually the same suit in state and federal court, by her corporation and by herself, and in doggedly seeking favorable judgment despite neglect of procedural mechanisms, Eglinton has not had just one bite at the apple but has nearly consumed the entire fruit. Such litigation tactics are disfavored, and we will not relieve her of the consequences of the failure to meet deadlines. The judgment of the district court is AFFIRMED.