Sciortino v. Gwinnett County Department of Water Resources (In re Sciortino)

561 B.R. 245
CourtUnited States Bankruptcy Court, N.D. Georgia
DecidedSeptember 6, 2016
DocketCASE NO. 14-71765-BEM; ADVERSARY PROCEEDING NO. 15-5356-BEM
StatusPublished
Cited by3 cases

This text of 561 B.R. 245 (Sciortino v. Gwinnett County Department of Water Resources (In re Sciortino)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sciortino v. Gwinnett County Department of Water Resources (In re Sciortino), 561 B.R. 245 (Ga. 2016).

Opinion

ORDER OVERRULING OBJECTION AND DENYING MOTION FOR RECONSIDERATION

Barbara Ellis-Monro, U.S. Bankruptcy Court Judge

This matter is before the Court on pro se Plaintiffs “Objection To Order Dismissing Niel (sic) C. Gordon, et al. Defendants in March 08, 2016 Oral Rendering of Order; Objection To Order Dismissing Plaintiffs Other Claims as Ordered; Motion for Re Hearing Based Upon the Existing Appearance of Judicial Oversight; New Evidence Showing Disability of Petitioner, New Evidence Showing Petitioner Eligible for Full Protection of Stay in Case No. 14-71765-BEM;” (the “Objection”) filed March 21, 2016 [AP Doc. 83]1 and “Motion for Reconsideration of March 17, 2016 Order; Motion for Reconsideration of March 18, 2016 Judgment” (the “Motion” and with the Objection, the “Pleadings”) filed April 4, 2016. [AP Doc. 86].

In the Pleadings, Plaintiff asks the Court to reconsider its oral ruling and the order memorializing the same which dismissed Neil C. Gordon (the “Trustee”) from the proceeding, granted the County Defendants’2 motion to dismiss as to all claims not related to the November Invoice,3 and dismissed the Individual County Defendants4 from the proceeding (the “Order”). [AP Doc. 79]. The remaining Defendants are the Gwinnett County Department of Water Resources (the “Water Department”) and Gwinnett County (the “County” and with the Water Department, the “Defendants”). Plaintiff also asks the Court to reconsider the judgment accompanying the Order, entered on March 18, 2016 (the “Judgment”). [AP Doc. 80].

In the Pleadings, Plaintiff outlines four bases for reconsideration:

i.) Petitioner does not understand the order, ii.) The Order appears wrong as a matter of fact and according to law. iii.) [249]*249Petitioner hereby objects to portions of the order that dismiss The Gwinnett County Defendants’s [sic] as well as Neil C. Gordon on the basis of pending OBJECTIONS filed, as well as Motion for Reconsideration filed, as well as all other pleadings filed, iv.) the dismissal of “other claims” based upon the apparent wrongful application of treating this case as if the automatic stay does not apply after 30 days.

[AP Doc. 86 at p. 2-3; AP Doc. 83 at p. 3]. In the Objection, Plaintiff argues that the Court should reconsider its oral ruling and hold a subsequent hearing on the motions to dismiss. Thus the Court construes the Objection as a motion to alter or amend its oral ruling. Because the oral ruling was memorialized in the Order entered March 18 and the Pleadings largely contain the same arguments, the Court will address both the Objection and the Motion in this order.

I. Standard for Reconsideration

The oral ruling was made on March 3, 2016 and the Objection filed on March 21, 2016. The Order and Judgment were entered on March 18, 20165 and Plaintiff filed the Motion on April 4, 2016. Both Pleadings were filed 18 days after the events Plaintiff seeks to alter or amend. Under Fed. R. Bankr. P. 9023, a motion to alter or amend a judgment must be filed “no later than 14 days after entry of judgment.” Plaintiff argues his Objection is timely because it was deposited “with the proper agents” on March 17, 2016 and that the Motion is timely because it was mailed to the Court on April 1, 2016. [Doc. 83 at p. 12 ¶ 34; Doc. 86 at p. 16 ¶ 16]. In so arguing, Plaintiff relies on United States Supreme Court Rule 29.2 and what appears to be Federal Rule of Civil Procedure 5(b)(2)(F). [Doc. 83 at p. 12 n.10; Doc. 86 at p. 16 n.8]

Supreme Court Rule 29.2 provides that a “document is timely filed ... if it is sent to the Clerk through the United States Postal service by first-class mail ... and bears a postmark ... showing that the document was mailed on or before the last day for filing .... ” Sup. Ct. R. 29.2. However, the Supreme Court Rules do not govern filings in the bankruptcy court. In contrast, Fed. R. Civ. P. 5 (“Rule 5”) is applicable in adversary proceedings pursuant to Fed. R. Bankr. P. 7005. Rule 5(d)(2) provides that a paper filed after the complaint that is required to be served “is filed by delivering it: (A) to the clerk; or (B) to a judge who agrees to accept it for filing, and who must then note the filing date on the paper and promptly send it to the clerk.” Fed. R. Civ. P. 5(d)(2) (emphasis added); see Cao v. Garner (In re Garner), No. 13-44563, AP No. 15-4019, 2015 WL 3825979, *4, 2015 Bankr. LEXIS 1984 (Bankr. N.D. Tex. June 18, 2015); see also Rosas v. Berry Plastics, No. 15-2048, 649 Fed.Appx. 3, 2016 WL 2848669, at *1, 2016 U.S. App. LEXIS 8888 (2d Cir. May 16, 2016). The provision of Rule 5 referenced by Plaintiff, 5(b)(2)(F), explains how service may be made—“delivering it by any other means that the person consented to in writing—in which event service is complete when the person making service delivers it to the agency designated to make delivery” rather than explaining how a document is filed with the Court.-

The Objection and Motion were filed when they were delivered to the Clerk on Monday, March 21, 2016, and Monday, April 4, 2016, respectively. Thus, both were filed more than 14 days after the rulings they address. Because more [250]*250than 14 days elapsed, the Pleadings are not timely motions to alter or amend a judgment pursuant to Fed. R. Bankr. P. 9023 and Fed. R. Civ. P. 59. Nevertheless, Plaintiff has two other possible avenues of relief: Fed. R. Civ. P. 60(b), which provides for relief from final judgments in certain circumstances, and Fed. R. Civ. P. 54(b), which allows a court to revise an order in a case involving multiple claims or parties at any time before the order becomes final.

Here, the oral ruling was not final since no written order had been docketed. The Order and Judgment were not final because they resolved fewer than all the claims, and the Court did not expressly determine that there was no just reason for delay. Thus, the Order and Judgment are non-final orders which, in appropriate circumstances, could be revised in accordance with Rule 54.

Under Fed. R. Civ. P. 54(b) and Fed. R. Bankr. P. 7054(a):

When an action presents more than one claim for relief ...

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Bluebook (online)
561 B.R. 245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sciortino-v-gwinnett-county-department-of-water-resources-in-re-ganb-2016.