In Re: SK Foods, LP

Filing 13

ORDER denying Appellant's 9 Motion for Rehearing/Reconsideration, signed by Judge John A. Mendez on 3/11/13. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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In Re:

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SK FOODS, L.P., A CALIFORNIA
PARTNERSHIP,

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Debtor,

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Bankruptcy No. 09-29162-D-11
ORDER DENYING APPELLANT’S MOTION
FOR REHEARING/RECONSIDERATION

NAGELEY, MEREDITH & MILLER,
INC.,
Appellant,

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v.

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Case Nos. 2:12-CV-00940-JAM
2:12-CV-00942-JAM
2:12-CV-00943-JAM

BRADLEY D. SHARP, CHAPTER 11
TRUSTEE,

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Appellee.

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Before the Court is Appellant Nageley, Meredith & Miller,

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Inc.’s (“Appellant”) Motion for Rehearing/Reconsideration (Doc.

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#26) of the Court’s December 21, 2012 order (“Order”).

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Bradley D. Sharp, Chapter 11 Trustee, responded (Doc. #27).

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the reasons set forth below, Appellant’s motion is DENIED.1

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Appellee
For

This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled
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Appellant presents three bases for rehearing or

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reconsideration: (1) The Court did not consider the meet and

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confer requirements of Local Rule 37-251 (“Rule 251”);

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(2) Farella Braun + Martel LLP (“Farella”) opposed Appellee’s

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motion as an interested party at a time in which there was an on-

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going meet and confer duty; and (3) Appellant’s actions were

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reasonable and the Court’s award of sanctions was an abuse of

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discretion.

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I.

OPINION

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A.

Legal Standard

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Federal Rule of Bankruptcy Procedure (“Bankruptcy Rule”)

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8015 provides that “a motion for rehearing may be filed within 14

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days after entry of the judgment of the district court or the

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bankruptcy appellate panel” unless applicable local rules provide

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otherwise.

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not set forth substantive requirements for granting or denying a

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motion for rehearing, nor does it identify procedures the Court

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must follow in making its determination.

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in the Ninth Circuit turn to Federal Rule of Appellate Procedure

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40 (“FRAP 40”), on which Bankruptcy Rule 8015 is modeled, for

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guidance.

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(B.A.P. 9th Cir. 2003) (“Rule 8015 does not set forth standards

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for granting rehearing, but as that rule was derived from FRAP

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40, it is appropriate to look there for guidance.”)

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omitted).

Fed. R. Bankr. P. 8015.

For this reason, courts

See In re Hessco Indus., Inc., 295 B.R. 372, 375

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Bankruptcy Rule 8015 does

for March 6, 2013.
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(citation

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Under FRAP 40, “The petition must state with particularity

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each point of law or fact that the petitioner believes the court

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has overlooked or misapprehended and must argue in support of the

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petition.”

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designed to ensure that the reviewing court properly considered

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all relevant information in rendering its decision.

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U.S. District Court, C.D. Cal., 806 F.2d 1347, 1356 (9th Cir.

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1986).

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to reargue a party’s case.

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Motions for rehearing are

Armster v.

Moreover, a motion for rehearing is not a means by which
Anderson v. Knox, 300 F.2d 296, 297

(9th Cir. 1962).
B.

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Fed. R. App. P. 40(2).

Discussion
1.

Local Rule 251

Appellant contends that the Court overlooked the meet and

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confer requirements set forth in Local Rule 251 (“Rule 251”).

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Mot. for Recons. at 4–5.

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this rule, the meet and confer requirements extended to the date

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of the hearing and by that time, Farella was counsel for the

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interested party.

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requires Appellee’s counsel to set up a conference and issue a

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joint statement.

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should be denied because Appellant raises no new facts or

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arguments.

According to Appellant, pursuant to

In addition, Appellant argues that Rule 251

Appellee contends that the motion for rehearing

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Rule 251 imposes a meet and confer obligation on “all

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interested parties in advance of filing the motion or in advance

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of the hearing of the motion in a good faith effort to resolve

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the differences that are the subject of the motion.”

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The rule directs the moving party’s counsel to arrange the

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conference.

Id.
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L.R. 251.

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In this case, Appellant has done nothing more than point its

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finger at Farella and Appellee.

Appellant’s argument that

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Farella was counsel for “interested parties” at the time of the

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hearing was briefed on appeal and the Court addressed the

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argument and ultimately dismissed it.

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fact that Rule 251 requires Appellee’s counsel to arrange a

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conference makes no difference to the Court’s previous Order

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because the rule imposes the obligation to meet and confer on

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“all interested parties,” regardless of who held the

Order at 9.

Further, the

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responsibility to coordinate such efforts.

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still had an obligation to meet and confer and it has made no

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showing of an attempt to do so.

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argument does not justify or explain its failure to meet and

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confer.

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Therefore, Appellant

Consequently, Appellant’s

Accordingly, even taking into consideration the language of
Rule 251, rehearing of the Court’s Order is unwarranted.
2.

Appellant’s Remaining Bases for the Motion

The two remaining bases for this motion—Farella’s role as

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counsel for the interested party at the time of the hearing and

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the reasonableness of Appellant’s actions—were fully briefed,

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discussed, and dismissed in the Court’s Order.

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Therefore, these arguments are a blatant attempt to reargue the

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case, which is impermissible in a motion for rehearing.

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Anderson, 300 F.2d at 297.

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Order at 8–9.

Accordingly, these bases are not appropriate for a motion
for rehearing.
3.

Motion for Reconsideration

Appellant uses the terms reconsideration and rehearing
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throughout the motion, but does not specify whether it is moving

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for reconsideration in addition to rehearing.

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Appellant is moving for reconsideration of the Court’s Order,

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Appellant has failed to meet the requirements of Local Rule

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230(j).

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forth, in part, “new or different facts or circumstances . . .

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claimed to exist which did not exist or were not shown upon such

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prior motion, or what other grounds exist for the motion,” and

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“why the facts or circumstances were not shown at the time of the

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To the extent that

Rule 230(j) requires an affidavit or brief setting

prior motion.”

L.R. 230(j)(3)–(4).

Because Appellant failed to submit an affidavit or brief

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with the requisite information, the Court denies Appellant’s

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motion for reconsideration.

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II. ORDER
For the reasons stated above, Appellant’s Motion for
Rehearing/Reconsideration is DENIED.
IT IS SO ORDERED.
Dated: March 11, 2013

____________________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE

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