J.J. Rissell, Allentown PA, Trust v. Marchelos

Filing 30

ORDER ON MOTION FOR REHEARING. ORDER denying 23 Motion for Rehearing of Courts Order Dismissing Appeal. Signed by Judge Beth Bloom on 1/31/2019. See attached document for full details. (kpe)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 18-cv-61422-BLOOM
J.J. RISSELL, ALLENTOWN PA, TRUST,
Appellant,
v.
SPIRO MARCHELOS,
Appellee.
_____________________________________/
ORDER ON MOTION FOR REHEARING
THIS CAUSE is before the Court upon Appellant John Moffa’s (“Appellant”) Motion
for Rehearing of Court’s Order Dismissing Appeal, ECF No. [23] (“Motion”). Appellee Spiro
Marchelos (“Appellee”) filed his Response, ECF No. [27], to which Appellant filed its Reply,
ECF No. [29]. The Court has carefully considered the Motion, all opposing and supporting
materials, the record in this case and the applicable law, and is otherwise fully advised. For the
reasons set forth below, the Motion is denied.
A detailed recitation of the relevant factual background is set forth in the Court’s Order
Dismissing Appeal, ECF No. [22] (“Order”). For purposes of the instant Motion, the necessary
facts are limited. Appellant filed a notice of appeal of the Bankruptcy Court’s underlying Order
Denying Motion to Represent the J.J. Rissell, Allentown, P.A., Trust, Dated January 11, 2018
(the “Shareholder Trust”), Due to a Change in Circumstances, ECF No. [1] (“Denial Order”).
Thereafter, upon sua sponte review of the record, the Court issued its Order dismissing the
appeal for lack of jurisdiction, finding that the Denial Order is not a final order of the Bankruptcy

Case No. 18-cv-61422-BLOOM
Court. Moreover, interlocutory review would be improper. Appellant now seeks rehearing of the
Court’s Order.
A motion for rehearing “must state with particularity each point of law or fact that the
movant believes the district court . . . has overlooked or misapprehended and must argue in
support of the motion.” Fed. R. Bankr. P. 8022(a)(2). “Bankruptcy Rule 8022 (formerly 8015)
is silent regarding the standard for granting a rehearing motion.” Tucker v. Mukamal, Case No.
13-mc-23425-MARRA, 2015 WL 10986356, at *1 (S.D. Fla. Feb. 11, 2015). However, courts
in the Eleventh Circuit have applied the same standard applicable to motions for reconsideration
under Rule 59(e) of the Federal Rules of Civil Procedure. Id.; see also In re Steffen, 405 B.R.
486, 488 (M.D. Fla. 2009).

A motion for reconsideration requests the Court grant “an

extraordinary remedy to be employed sparingly.” Burger King Corp. v. Ashland Equities, Inc.,
181 F. Supp. 2d 1366, 1370 (S.D. Fla. 2002). A party may not use a motion for reconsideration
to “relitigate old matters, raise argument or present evidence that could have been raised prior to
the entry of judgment.” Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957 (11th Cir. 2009)
(quoting Michael Linet, Inc. v. Village of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005)).
“This prohibition includes new arguments that were ‘previously available, but not pressed.’” Id.
(quoting Stone v. Wall, 135 F.3d 1438, 1442 (11th Cir. 1998) (per curiam)).
Within this framework, however, a court may grant reconsideration when there is (1) an
intervening change in controlling law, (2) the availability of new evidence, or (3) the need to
correct clear error or prevent manifest injustice. Hood v. Perdue, 300 F. App’x. 699, 700 (11th
Cir. 2008). Thus, a motion to reconsider is “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.” Kapila v.

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Case No. 18-cv-61422-BLOOM
Grant Thornton, LLP, No. 14-61194-CIV, 2017 WL 3638199, at *1 (S.D. Fla. Aug. 23, 2017)
(quoting Z.K. Marine Inc. v. M/V Archigetis, 808 F. Supp. 1561, 1563 (S.D. Fla. 1992) (internal
quotation marks omitted). A motion for reconsideration “is not an opportunity for the moving
party . . . to instruct the court on how the court ‘could have done it better’ the first time.” Hood,
300 F. App’x at 700 (citation omitted).
Appellant argues that, contrary to the Court’s determination in its Order, the Denial Order
was final, disputing the Court’s reliance upon Brouwer v. Ancel & Dunlap (In re Firstmark
Corp.), 46 F.3d 653, 658 (7th Cir. 1995). Appellant also disagrees with the Court rejecting the
argument that the Denial Order was final as to the Bankruptcy Court’s striking certain filings
made by counsel that did not have authority to represent the Shareholder Trust. Upon review,
however, the Court determines that Appellant’s arguments for rehearing are improper. Appellant
is merely disagreeing with the Court’s Order, and has failed to indicate a point of law or fact that
the Court misapprehended or overlooked. Despite Appellant’s arguments, he fails to point to
authority in this District or from the Eleventh Circuit in which it was determined that an order
regarding the appointment or disqualification of counsel is a final order of the bankruptcy court.
Accordingly, Appellant’s Motion, ECF No. [23], is DENIED.
DONE AND ORDERED in Chambers at Miami, Florida, this 31st day of January, 2019.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record

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