Henry et al v. Rizzolo et al

Filing 607

ORDER that Kimtran Rizzolos Motion for a New Trial or in the Alternative, to Alter or Amend Judgment 587 is hereby DENIED. A hearing on Plaintiffs Motion for Order to Hold Defendant Kimtran Rizzolo in Civil Contempt 603 is set for Monday, Septem ber 10, 2012, at 3:00 p.m. in Courtroom 7C, in the United States District Court, District of Nevada, located at 333 S. Las Vegas Blvd., Las Vegas, Nevada, 89101. Signed by Judge Philip M. Pro on 6/21/12. (Copies have been distributed pursuant to the NEF - ECS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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KIRK and AMY HENRY,

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Plaintiffs,

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vs.

FREDRICK RIZZOLO aka
RICK RIZZOLO, an individual,
13 LISA RIZZOLO, an individual,
THE RICK AND LISA RIZZOLO
14 FAMILY TRUST,
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Defendants.
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2:08-CV-00635-PMP-GWF
ORDER

Before the Court is Defendant Kimtran Rizzolo’s Motion for a New Trial

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or in the Alternative, to Alter or Amend Judgment (Doc. #587), filed on May 18,

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2012. Plaintiffs filed an Opposition (Doc. #601) on June 4, 2012. Defendant

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Kimtran Rizzolo did not file a reply.

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On April 19, 2012, this Court granted summary judgment in Plaintiffs’

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favor on fraudulent transfer claims against Defendant Kimtran Rizzolo (“Kimtran”),

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and entered Judgment in the amount of $1,052,996.03. (Order (Doc. #583), J. (Doc.

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#584).) Kimtran now moves for a new trial or to amend the judgment under Federal

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Rule of Civil Procedure 59(a)(2). Kimtran argues she was a good faith transferee

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under Nevada Revised Statutes § 112.220(1). Alternatively, Kimtran requests that

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the Judgment be altered to limit it to the amount she actually received from Bart

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Rizzolo less any loans made to Fredrick Rizzolo or any attorney’s fees paid on

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Fredrick Rizzolo’s behalf. Plaintiffs oppose the Motion, arguing it is untimely.
Federal Rule of Civil Procedure 59(a)(2) provides that “[a]fter a nonjury

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trial, the court may, on motion for a new trial, open the judgment if one has been

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entered, take additional testimony, amend findings of fact and conclusions of law or

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make new ones, and direct the entry of a new judgment.” A party must file a motion

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for new trial or a motion to alter or amend judgment under Rule 59 “no later than 28

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days after the entry of judgment.” Fed. R. Civ. P. 59(b), (e). To determine whether

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a Rule 59 motion is timely, the Court excludes the day judgment was entered, counts

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every day thereafter including weekends and holidays, and includes the last day of

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the period unless the last day is a weekend or legal holiday. Fed. R. Civ. P. 6(a)(1).

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The Court cannot extend time to file a motion for new trial or to alter or amend a

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judgment under Rule 59(b) or (e). Fed. R. Civ. P. 6(b)(2). The Court lacks

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jurisdiction to consider an untimely filed Rule 59 motion. Tillman v. Ass’n of

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Apartment Owners of Ewa Apartments, 234 F.3d 1087, 1089 (9th Cir. 2000).

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Judgment was entered on April 19, 2012. Any Rule 59 motion therefore

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was due May 17, 2012. Kimtran did not file her Motion until May 18, 2012. Her

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Motion therefore is untimely, and the Court lacks jurisdiction to consider it.
To the extent Kimtran meant to file her Motion under Rule 60(b), she has

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not established any mistake, inadvertence, surprise, or excusable neglect; newly

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discovered evidence; or fraud or misconduct by Plaintiffs to support her request for

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relief from the Judgment. Fed. R. Civ. P. 60(b)(1)-(3). Kimtran also has not shown

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grounds for voiding the Judgment or that the Judgment has been satisfied. Fed. R.

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Civ. P. 60(b)(4)-(5).

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Finally, Kimtran has not shown the Court should grant her relief from the

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Judgment for “any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6).

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Although Kimtran argues Plaintiffs failed to show at summary judgment that she did

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not receive the fraudulently transferred funds in good faith, it was Kimtran’s burden

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to establish a genuine issue of fact regarding this affirmative defense. Herup v. First

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Boston Fin., LLC, 162 P.3d 870, 876 (Nev. 2007) (holding that “to establish a good

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faith defense to a fraudulent transfer claim, the transferee must show objectively that

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he or she did not know or had no reason to know of the transferor’s fraudulent

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purpose to delay, hinder, or defraud the transferor’s creditors.”). Kimtran presented

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no evidence and made no argument in response to Plaintiffs’ summary judgment

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motion that she was a good faith transferee. Her present Motion likewise lacks any

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evidentiary support for her claim that she is a good faith transferee.

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Further, to the extent Kimtran seeks to amend the Judgment to offset loans

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Bart Rizzolo purportedly made to Rick Rizzolo, she cites no legal authority

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supporting her position. Similar to her response to Plaintiffs’ summary judgment

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motion, Kimtran provides no evidence to establish any such loans were even made,

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when any such loans were made, in what amount, and the remaining balance at the

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time of the fraudulent transfers. (See Order (Doc. #583) at 10.) The Court therefore

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has no evidentiary basis to offset the Judgment even if such an offset were

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warranted.

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However, pursuant to Rule 62.1(a)(3), the Court hereby indicates that it

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would clarify the Judgment pursuant to Rule 60(a) were an appeal not presently

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pending which precludes the Court from clarifying the Judgment. See Fed. R. Civ.

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P. 60(a) (permitting district court to correct mistakes in a judgment unless an appeal

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has been docketed and is pending, in which case “such a mistake may be corrected

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only with the appellate court’s leave”). Specifically, the Court would clarify that as
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the recipient of fraudulently transferred funds, Kimtran must disgorge only so much

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of the Judgment as she actually received from Bart Rizzolo.

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IT IS THEREFORE ORDERED that Kimtran Rizzolo’s Motion for a New

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Trial or in the Alternative, to Alter or Amend Judgment (Doc. #587) is hereby

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DENIED.

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IT IS FURTHER ORDERED that a hearing on Plaintiffs’ Motion for

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Order to Hold Defendant Kimtran Rizzolo in Civil Contempt (Doc. #603) is set for

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Monday, September 10, 2012, at 3:00 p.m. in Courtroom 7C, in the United States

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District Court, District of Nevada, located at 333 S. Las Vegas Blvd., Las Vegas,

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Nevada, 89101.

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DATED: June 21, 2012

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PHILIP M. PRO
United States District Judge

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