Soler

Filing 18

ORDER denying 17 Appellant's Motion for Reconsideration. Please see Order for details. Signed by Judge Robin S. Rosenbaum on 4/28/2014. (ssk)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 13-22168-CIV-ROSENBAUM
JESUS ROBERTO SOLER,
Appellant,
v.
MARIA M. YIP,
Appellee.
______________________________________/
ORDER DENYING APPELLANT’S MOTION FOR RECONSIDERATION
This case is before the Court upon Appellant Jesus Roberto Soler’s Motion for
Reconsideration of the Court’s Order declining review of Soler’s bankruptcy appeal [ECF No. 17].
The Court has reviewed Soler’s Motion, the response, and the record in this case, and for the reasons
set forth below, denies the Motion for Reconsideration.
I. Background
The instant action stems from a bankruptcy proceeding currently pending in the United States
Bankruptcy Court for the Southern District of Florida (“Bankruptcy Court”). In the underlying
bankruptcy action, the Chapter 7 Trustee, Appellee Maria M. Yip, commenced an adversary
proceeding against Appellant-Debtor Jesus Roberto Soler, objecting to his discharge pursuant to
several subsections of 11 U.S.C. § 727. The deadline to object to the discharge had been extended
by the Bankruptcy Court twice, with the final deadline set for August 8, 2012. Due to a clerical
error, the Trustee filed her Complaint one day beyond the deadline, on August 9, 2012. Soler
subsequently filed a motion seeking dismissal of the Adversary Complaint because of its untimely
filing. While the Bankruptcy Court acknowledged that it did not have discretion to extend a deadline

established by Bankruptcy Rule, it determined that it did have discretion to retroactively extend this
deadline because the deadline was court-imposed. Finding that the Trustee’s late filing constituted
“excusable neglect” under Rule 9006(b)(1), Fed. R. Bankr. P., the Bankruptcy Court denied Soler’s
motion and retroactively extended the deadline to file the discharge complaint to August 9, 2012.
The Bankruptcy Court also partially denied Soler’s motion for reconsideration. Soler appealed both
Orders to this Court.
On September 30, 2013, the Court declined to exercise jurisdiction over Soler’s appeal on
the grounds that (1) the Bankruptcy Court Orders were not final orders granting Soler an appeal as
a matter of right, and (2) Soler had not met his burden of establishing that interlocutory appeal of the
Orders was proper. Soler now moves for reconsideration of this determination, arguing that (1) the
Order denying Soler’s motion to dismiss is final for purposes of appeal because it is jurisdictional
in nature, and (2) the Order denying Soler’s motion for reconsideration is a final order.
II. Legal Standard
“[R]econsideration of a previous order is an extraordinary remedy to be employed sparingly.”
Burger King Corp. v. Ashland Equities, Inc., 181 F. Supp. 2d 1366, 1370 (S.D. Fla. 2002) (citing
Mannings v. Sch. Bd. of Hillsborough County, 149 F.R.D. 235, 235 (M.D. Fla. 1993)). “The
‘purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present
newly discovered evidence.’” Id. at 1369 (quoting Z.K. Marine Inc. v. M/V Archigetis, 808 F. Supp.
1561, 1563 (S.D. Fla. 1992)). Only three major grounds generally justify reconsideration: “(1) an
intervening change in the controlling law; (2) the availability of new evidence; and (3) the need to
correct clear error or prevent manifest injustice.” Id. (citing Offices Togolais Des Phosphates v.
Mulberry Phosphates, Inc., 62 F. Supp. 2d 1316, 1331 (M.D. Fla. 1999); Sussman, 153 F.R.D. at
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694).
III. Discussion
Soler’s primary argument is that the Orders denying dismissal in this case are jurisdictional,
so they are immediately appealable. In particular, Soler emphasizes that the deadlines imposed by
Rule 4004(a), Fed. R. Bankr. P.—which governs the timing to file a complaint objecting to a
debtor’s discharge—are “strict,” and the Rule provides that a complaint must be filed “no later than
sixty days after the first date set for the meeting of creditors under § 341(a).” A party requesting
extension of the deadline must do so before the deadline expires; otherwise, the Bankruptcy Court
is without authority to extend the deadline. See Fed. R. Bankr. P. 4004(b); Byrd v. Alton (In re
Alton), 837 F.2d 457, 459 (11th Cir. 1988). According to Soler, because the Trustee’s complaint was
untimely and the Rule does not permit the Bankruptcy Court to retroactively extend the deadline to
file, the Bankruptcy Court lacks jurisdiction over the adversary proceeding. Because the issue is
jurisdictional, Soler suggests, immediate review is permitted as a matter of right. The Court
respectfully disagrees.
First, the Supreme Court has already conclusively held that Rule 4004(a) is not jurisdictional.
See Kontrick v. Ryan, 540 U.S. 443, 447 (2004) (“We agree that Rule 4004 is not “jurisdictional”);
id. at 455 (“Rules 4004 and 9006(b)(3) are not properly labeled ‘jurisdictional’ in the sense of
describing a court’s subject matter jurisdiction . . . .”); see also In re Berman-Smith, 737 F.3d 997,
1000 (5th Cir. 2013) (“In [Kontrick], the Court unanimously held that, because procedural rules are
adopted by courts rather than by Congress, deadlines contained in rules are not jurisdictional. . . .
Federal Rule of Bankruptcy Procedure 4004(a), which sets the time within which a party must file
an objection to a debtor’s discharge, is not jurisdictional.”). Accordingly, reconsideration is not
warranted on this basis.

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Second, even if the Orders were properly characterized as jurisdictional, such a conclusion
would not necessarily entitle Soler to immediate appellate relief. See Catlin v. United States, 324
U.S. 229, 237 (1945) (“[D]enial of a motion to dismiss, even when the motion is based upon
jurisdictional grounds, is not immediately reviewable.”). Soler’s general contention that the issue
raised on appeal is jurisdictional is therefore insufficient.
Finally, the Court disagrees with Soler’s assertion that the Bankruptcy Court’s denial of his
motion for reconsideration is a final order. In support of Soler’s position, Soler cites to a Sixth
Circuit opinion, which states simply that “an order denying a motion for reconsideration is a final
order.” In re J & M Salupo Dev. Co., 388 B.R. 795, 800 (6th Cir. 2008). Significantly, however,
the order denying reconsideration in that case was appealed along with a previous, related order
granting judgment on the pleadings, which is itself a final, appealable order. The Court does not
disagree that an order denying reconsideration is appealable where the underlying order is appealable
as well. But where, as here, the underlying order is not a final order subject to immediate review,
an order denying reconsideration cannot independently meet the criteria required to invoke this
Court’s appellate jurisdiction. As the Court has already determined that the Order denying the
motion to dismiss is a non-final, interlocutory order, the order denying reconsideration is
interlocutory as well.
IV. Conclusion
For the foregoing reasons, it is ORDERED and ADJUDGED that Appellant’s Motion for
Reconsideration [ECF No. 17] is DENIED.
DONE and ORDERED at Fort Lauderdale, Florida, this 28th day of April 2014.
__________________________________
ROBIN S. ROSENBAUM
UNITED STATES DISTRICT JUDGE

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Copies to:
Counsel of record

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