Gould v. Furr
Filing
13
OPINION AND ORDER denying 7 Petitoner's Rule 9024 Motion for Relief From This Court's Order. Signed by Judge Beth Bloom on 04/08/2015. (yar)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 15-CIV-60213-BLOOM
THEODORE B. GOULD,
Appellant,
v.
ROBERT C. FURR,
Appellee.
_______________________________________/
In re:
JAMES P. DRISCOLL,
Case No. 06-12420-BKC-JKO
Chapter 7
Debtor,
PATRICK POWER CORPORATION,
Case No. 06-12423-BKC-JKO
Chapter 7
Debtor.
_______________________________________/
OPINION AND ORDER
This matter is before the Court upon Appellant Theodore B. Gould’s Rule 9024 Motion
for Relief from this Court’s Order, ECF No. [7] (“Motion”). On February 3, 2015, the Court
received a Motion for Mandatory Withdrawal of the Reference, ECF No. [1] (“Motion for
Mandatory Withdrawal”), in which Appellant Theodore B. Gould (“Gould”), individually and as
former general partner of the Miami Center Limited Partnership (“MCLP”), proceeding pro se,
sought to withdraw the reference of two bankruptcy proceedings, In re Patrick Power Corp.,
Case No. 06-12423-BKC-JKO (S.D Fla.) (the “Patrick Power Bankruptcy”) and In re Driscoll,
Case No. 06-12420-BKC-JKO (S.D. Fla.) (the “Driscoll Bankruptcy”), based upon
“incompetence, pervasive fraud, breach of fiduciary duty, negligence, and [] [violations of] the
1
administration of bankruptcy law.” Id. at ¶ 2. The Motion for Mandatory Withdrawal was filed
in the United States Bankruptcy Court for the Southern District of Florida (the “Bankruptcy
Court”) on December 30, 2014. In re James P. Driscoll, No. 0:06-br-12420, ECF No. [1006]
(S.D. Fla. Dec. 30, 2014). On January 13, 2015, Appellee Robert C. Furr filed his response. See
id. at ECF No. [1010] (S.D. Fla. Jan. 13, 2015). Pursuant to S.D. Fla. L. Br. R. 5011-1(B)(2), a
reply was then required within fourteen (14) days. When no reply was filed within the required
time period, the United States Bankruptcy Court for the Southern District of Florida transmitted
the matter to the District Court. See S.D. Fla. L. Br. R. 5011-1(C)(1) (“When the record is
complete for purposes of transmittal, and after the time for filing a response or reply has expired,
the clerk of this court shall promptly transmit to the clerk of the district court the motion to
withdraw, all timely filed responses and memoranda, and the portions of the record
designated.”). Accordingly, the Court determined that the Motion for Mandatory Withdrawal
was ripe for adjudication and reviewed the same.
For purposes of clarity, the Court now briefly reiterates the relevant statutory provisions.
A district court has original and exclusive jurisdiction of all cases brought under Title 11. See 28
U.S.C. § 1334(a). Title 28, Section 157 of the United States Code vests in the district court the
authority to refer “any or all cases under title 11 and any or all proceedings arising under title 11
or arising in or related to a case under title 11” to the bankruptcy judges for the district. See 28
U.S.C. § 157(a). The jurisdiction of the bankruptcy court exists by virtue of this referral.
Accordingly, a district court may withdraw, in whole or in part, any case proceeding under the
referral:
The district court may withdraw, in whole or in part, any case or
proceeding referred under this section, on its own motion or on
timely motion of any party, for cause shown. The district court
shall, on timely motion of a party, so withdraw a proceeding if the
2
court determines that resolution of the proceeding requires
consideration of both title 11 and other laws of the United States
regulating organizations or activities affecting interstate
commerce.
28 U.S.C. § 157(d). Thus, the statute provides for two forms of withdrawal, permissive and
mandatory, permitting a district court to withdraw when the movant has demonstrated “cause,”
and mandating withdrawal “if the court determines that resolution of the proceeding requires
consideration of both title 11 and other laws of the United States regulating organizations or
activities affecting interstate commerce.” Id.
After a thorough review of Gould’s submission, the Court found the Motion for
Mandatory Withdrawal to be without merit for a variety of reasons. See Opinion and Order, ECF
No. [5]. First, the Court found that the motion was untimely. The bankruptcy proceedings at
issue were commenced on June 6, 2006, see Docket Sheet, ECF No. [2-2] at 1, and the
Bankruptcy Court’s final substantive action had occurred, at a minimum, six months prior to
Gould’s motion. See Opinion and Order, ECF No. [5] at 3-4. Furthermore, no adversary
proceedings were ongoing, no motions were outstanding, and all other proceedings had
essentially been completed. Id. Therefore, “Gould should have been aware of any issues
involving non-bankruptcy federal laws long ago,” and the motion was untimely.
Id. Second,
accepting the motion as timely and examining the merits further revealed that the motion
warranted denial. See id. at 4-5. Even considering the motion under the lenient standards
afforded to pro se litigants, the Court found the motion to be “borderline incomprehensible,”
failing to set forth even a semblance of proper and applicable argument pertaining to either
permissive or mandatory withdrawal. Id. Specifically, the Court found that Gould had “failed to
articulate how or why ‘resolution of the proceeding requires consideration of both title 11 and
other laws of the United States regulating organizations or activities affecting interstate
3
commerce,” 28 U.S.C. § 157(d), and, moreover, did not address elements generally considered to
demonstrate cause under the standard applicable for permissive withdrawal. See Opinion and
Order, ECF No. [5] at 4-5. Finally, the Court rejected Gould’s assertion that he could pursue the
motion on behalf of himself “and as the former general partner of the Miami Center Limited
Partnership,” as MCLP is an “artificial entity that can act only through agents[,] cannot appear
pro se, and must be represented by counsel.” Id. at 5-6 (citing Palazzo v. Gulf Oil Corp.,764
F.2d 1381, 1385 (11th Cir. 1985); see also United States v. Hagerman, 549 F.3d 536, 537 (7th
Cir. 2008)). Consequently, the Court denied the Motion for Mandatory Withdrawal.
On March 19, 2015, Gould filed the instant Motion, asserting that the Court’s Opinion
and Order dated February 24, 2015, is “void ab initio” under Federal Rule of Bankruptcy
Procedure 9024. See Mot., ECF No. [7]. “Federal Rule of Bankruptcy Procedure 9024, applying
Federal Rule of Civil Procedure 60, allows for reconsideration of an order when there is: (1)
mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud,
misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) a prior
judgment upon which it is based has been reversed or otherwise vacated, or it is no longer
equitable that the judgment should have prospective application; or (6) any other reason
justifying relief from the operation of the judgment.” In re Mohorne, 404 B.R. 571, 575-76
(Bankr. S.D. Fla.) aff’d sub nom. Mohorne v. Beal Bank, S.S.B., 419 B.R. 488 (S.D. Fla. 2009)
(citing Fed. R. Bankr. Pro. 9024; Fed. R. Civ. P. 60(b)). For the reasons stated hereafter, the
Motion is denied.
Gould begins by stating that the Clerk of Court has failed to serve this Court’s February
24th Order upon him. See id. at 2. Yet he seeks relief from the same. This argument need not
be addressed further as it is clearly unfounded.
4
Gould’s first legitimate protest appears to be that he did not receive Appellee Robert C.
Furr’s Response in Opposition to the Motion for Mandatory Withdrawal, ECF No. [2-2], until
February 18, 2015, despite it being filed with the Bankruptcy Court on January 13, 2015.
Appellee Robert C. Furr (“Furr”) does not appear to contest this fact. See Response, ECF No.
[9] at 2-3. However, even after considering the arguments presented in Gould’s Reply,1 the
Court finds that its prior Opinion and Order was nevertheless correct. First, the Reply asserts
that the Driscoll Bankruptcy and the Patrick Power Bankruptcy are not “two distinct
bankruptcies.” See Reply, ECF No. [6] at 1-2. Review of the record of both the Driscoll
Bankruptcy and the Patrick Power Bankruptcy quickly reveals that these two matters involved
two distinct debtors and were separately administered. Next, Gould contends that the Estate of
James P. Driscoll is jointly and severally liable for MCLP’s judgment against Patrick Power
Corp. See Reply, ECF No. [6] at 2. As Furr correctly notes, Gould has not demonstrated that he
has standing to file a claim in the Driscoll Bankruptcy on behalf of the Patrick Power
Corporation debtor.
Next, Gould challenges the Court’s conclusion that he is unable to represent MCLP as the
entity has been dissolved and, therefore, no longer exists. See id. at 5. However, Gould presents
no authority suggesting that the long-standing rule that an “artificial entity that can act only
through agents[,] cannot appear pro se, and must be represented by counsel,” Palazzo,764 F.2d at
1385, does not apply where the entity has been dissolved. The fact that MCLP provided Gould a
dividend to him as partner upon liquidation does not negate this fundamental principle. Indeed,
in Palazzo, the Eleventh Circuit noted that this rule applies even where the corporation has
assigned its claims to a lay individual. See id. at 1385-86 (citations omitted).
1
Gould labels his Reply as a “Response” and repeatedly refers to it as such. However, the filing
is appropriately classified as a reply memorandum.
5
The remainder of Gould’s Reply is as mystifying as his initial Motion for Mandatory
Withdrawal and utterly fails to address any of the remaining arguments presented by Furr’s
Response.
Gould appears to argue that additional discovery will reveal the extent of the
previously alleged, but nonetheless unclear, fraudulent conduct and misrepresentations. See
Reply, ECF No. [6] at 6-7. Moreover, Gould seems to present challenges to a multitude of
orders entered in the Bankruptcy Court and other related proceedings.
See id. at 7-9.
Notwithstanding the lack of clarity, these assertions fail to demonstrate why the Motion for
Mandatory Withdrawal of the reference is timely, or, alternatively, why it should be granted
despite its untimeliness. Accordingly, even considering Gould’s Reply, the Court would have
reached the same conclusion and the February 24th Opinion and Order was nonetheless proper.
Much of Gould’s Rule 9024 Motion presents the same arguments as his previouslydiscussed Reply. For instance, Gould quarrels with his ability to represent MCLP in court. See
Mot., ECF No. [7] at 3-5. As discussed, this argument is without merit. Similarly, Gould’s
argument that the rule requiring artificial entities to be represented by counsel is in conflict with
28 U.S.C. § 1654 is equally unpersuasive. See id. at 5. Title 28, § 1654 allows individuals to
proceed pro se in federal court; however, as noted by the Court in Palazzo, “[c]orporations and
partnerships, by their very nature, are unable to represent themselves and the consistent
interpretation of § 1654 is that the only proper representative of a corporation or a partnership is
a licensed attorney, not an unlicensed layman regardless of how close his association with the
partnership or corporation.” 764 F.3d at 1385 (quoting Turner v. American Bar Ass’n, 407 F.
Supp. 451, 476 (N.D. Ind. 1975), aff’d. sub nom. Taylor v. Montgomery, 539 F.2d 715 (7th Cir.
1976)). Therefore, the Court’s instruction that an artificial entity must be represented by counsel
is not in conflict with 28 U.S.C. § 1654, as the Eleventh Circuit has noted. As a second example
6
of Gould’s repetitiveness, Gould once again expresses discontent with orders not entered by the
Court in the instant matter. See Mot., ECF No. [7] at 10. These matters do not appear to be
reviewable by this Court in the present posture.
After parsing through the remaining hard-to-discern arguments, the Court finds Gould’s
residual assertions to also be without merit.
To the extent Gould challenges the Court’s
determination that the Motion for Mandatory Withdrawal was untimely, he has neither presented
a change in law, new evidence, nor manifest injustice that would warrant reconsideration of the
decision. See Instituto de Prevision Militar v. Lehman Bros., Inc., 485 F. Supp. 2d 1340, 1342
(S.D. Fla. 2007) (“Courts have distilled three major grounds justifying reconsideration: (1) an
intervening change in controlling law; (2) the availability of new evidence; and (3) the need to
correct clear error or manifest injustice.” (quoting Cover v. Wal-Mart Stores, Inc., 148 F.R.D.
294, 295 (M.D. Fla. 1993) (internal quotation marks omitted)); see also Smith v. Ocwen
Financial, 488 F. App’x 426, 428 (11th Cir. 2012) (citing Arthur v. King, 500 F.3d 1335, 1343
(11th Cir. 2007)) (“The only grounds for granting a motion for reconsideration are newlydiscovered evidence or manifest errors of law or fact.”). Courts in this district have emphasized
that a motion for reconsideration should not be used to reiterate arguments previously made:
It is an improper use of the motion to reconsider to ask the Court to
rethink what the Court already thought through—rightly or
wrongly. [However], [t]he motion to reconsider would be
appropriate where, for example, the Court has patently
misunderstood a party, or has made a decision outside the
adversarial issues presented to the Court by the parties, or has
made an error not of reasoning but of apprehension.
Z.K. Marine, Inc. v. M/V Archigetis, 808 F. Supp. 1561, 1563 (S.D. Fla. 1992) (quoting Above
the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)) (internal
formatting omitted).
If a motion for reconsideration merely submits previously rejected
7
arguments, the motion should generally be denied. Sierra Equity Grp., Inc. v. White Oak Equity
Partners, LLC, 687 F. Supp. 2d 1322, 1324 (S.D. Fla. 2009) (quoting Rueter v. Merrill Lynch,
Pierce, Fenner & Smith, Inc., 440 F. Supp. 2d 1256, 1268 (N.D. Ala. 2006) (noting that
“motions to reconsider are not a platform to relitigate arguments previously considered and
rejected”)). Although Gould’s Motion is presented under Rule 9024, in this respect he has
simply requested that the Court reconsider its prior decision dated February 24, 2015. Gould’s
remonstrance of the underlying bankruptcy proceedings is admittedly untimely. See Mot., ECF
No. [7] at 10 (noting that “[a]lmost nine (9) years have elapsed since this proceeding was
commenced,” and “[m]ore than four (4) years elapsed before Tolz’s successor trustee filed a
final report”). Thus, the Court will not reconsider its prior decision.
In short, Gould has not demonstrated mistake, inadvertence, surprise, excusable neglect,
newly discovered evidence, fraud, misrepresentation, other misconduct, or any other reason
justifying relief that relates to this Court’s February 24th Order denying Gould’s Motion for
Mandatory Withdrawal of the Reference. See In re Mohorne, 404 B.R. at 576 (listing the Fed. R.
Civ. P. 60(b) reasons for relief from a court’s order).2
For the foregoing reasons, Appellant Theodore B. Gould’s Rule 9024 Motion for Relief
from this Court’s Order, ECF No. [7], is DENIED.
DONE AND ORDERED in Fort Lauderdale, Florida, this 8th day of April, 2015.
____________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
2
Any arguments not explicitly addressed herein are implicitly rejected.
8
Copies to:
Counsel of Record
Theodore B. Gould
Appellant Pro Se
P.O. Box 5564
Charlottesville, VA 22905
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?