Corwin, et al v. Gorilla Companies LLC, et al

Filing 89

ORDER Appellant's motion for expedited review 85 and emergency motion for leave to file motion for rehearing 86 are granted. The Clerk is directed to file the lodged proposed motion for rehearing 87 . Gorilla shall have until 7/15/11 to file a response to the motion for rehearing. Appellants shall file a reply by 7/22/11. Signed by Judge David G Campbell on 7/1/11.(TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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In re Gorilla Companies LLC, et al.,

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Debtors.

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Robb M. Corwin; Jillian C. Corwin; and 13
Holdings, LLC,

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No. CV-10-01029-PHX-DGC
No. AP-09-00266-RJH
No. BK-09-02898-RJH
No. BK-09-02901-CGC
No. BK-09-02903-GBN
No. BK-09-02905-CGC
ORDER

Appellants,

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vs.

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Gorilla Companies LLC,

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Appellee.

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On March 22, 2010, the bankruptcy court entered final judgment in favor of

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Gorilla Companies LLC on the claims against it and on its own claims for breach of

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contract, breach of the covenant of good faith and fair dealing, negligent

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misrepresentation, fraud, and unjust enrichment. Doc. 1 at 17-21; Appellants’ Excerpt of

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Record Exhibit (“ER”) 112. Gorilla was awarded more than $4.7 million in damages

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(including prejudgment interest) and nearly $1.8 million in attorneys’ fees. Id. Robb

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and Jillian Corwin and 13 Holdings, LLC appealed to this Court. Doc. 1 at 12-16. In an
order dated March 11, 2011, the Court affirmed in part and reversed in part. Doc. 75.

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Appellants have filed an emergency motion for leave to file a motion for rehearing
(Doc. 86) and a motion for expedited review of the emergency motion (Doc. 85).
Appellants also have lodged a proposed motion for rehearing (Doc. 87), arguing that an
intervening change in the law requires the Court to reconsider its October 14, 2010 order
(Doc. 30) affirming the bankruptcy court’s resolution of the core/noncore issue (Doc.
23-1).
A motion for rehearing under Rule 8015 of the Federal Rules of Bankruptcy
Procedure must state with particularity each point of law or fact that the movant believes
the court has overlooked or misapprehended. See In re Fowler, 394 F.3d 1208, 1214 (9th
Cir. 2005); In re Hessco Indus., Inc., 295 B.R. 372, 375 (B.A.P. 9th Cir. 2003); Fed. R.
App. P. 40(a)(2). If the court “finds that it has not considered an important aspect of the
case, then a rehearing is warranted.” McMullen v. Schultz, 443 B.R. 236, 241 (D. Mass.
2011). The Court finds that the purported change in the law, that is, the Supreme Court’s
recent decision in Stern v. Marshall, --- S. Ct. ----, 2011 WL 2472792 (June 23, 2011),
is sufficient to allow Appellants to file the proposed motion for rehearing (Doc. 87). The
Clerk will be directed to file the lodged motion for rehearing. The Court will deem the
motion as being timely filed, which will toll the deadline for filing a notice of appeal.
See Fed. R. Bankr. P. 8015.
IT IS ORDERED:
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Appellants’ motion for expedited review (Doc. 85) and emergency motion

for leave to file motion for rehearing (Doc. 86) are granted.
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The Clerk is directed to file the lodged proposed motion for rehearing

(Doc. 87).

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3.

Gorilla shall have until July 15, 2011 to file a response to the motion for

rehearing. The response shall not exceed ten pages. Appellants shall file a reply, of no
more than five pages, by July 22, 2011.
Dated this 1st day of July, 2011.

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