Lyondell Chemical Company et al v. Weisfelner
Filing
18
MEMORANDUM OPINION & ORDER: Having reviewed the January 4 Order, there are no circumstances to warrant granting Curriers motion for leave to appeal an interlocutory order. Accordingly, within the Courts discretion, Curriers February 1, 2016 motion for leave to appeal is denied. (As further set forth in this Order.) (Signed by Judge Denise L. Cote on 3/22/2016) (cf)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------X
:
In Re: LYONDELL CHEMICAL CO., et al.
:
:
Debtors,
:
----------------------------------------:
:
DIANE CURRIER, as Executor of the Estate:
of Richard Floor,
:
:
Appellant,
:
:
-v:
:
EDWARD S. WEISFELNER, as Litigation
:
Trustee of the LB Litigation Trust,
:
:
Appellee.
:
----------------------------------------X
DENISE COTE, District Judge:
16cv737 (DLC)
MEMORANDUM OPINION
& ORDER
Appellant Diane Currier, as executor of the estate of
Richard Floor (“Currier”), brings this motion for leave to
appeal an interlocutory order entered by the United States
Bankruptcy Court for the Southern District of New York in the
above-captioned bankruptcy proceeding.
The order permitted
substitution of the executor of an estate following the death of
defendant Richard Floor (“Floor”).
For the reasons stated
below, the motion for leave to appeal is denied.
The background of this dispute is as follows.
Lyondell
Chemical Corporation (“Lyondell”) filed for relief under Chapter
11 of Title 11 of the United States Code in January 2009.
Edward S. Weisnefell (the “Trustee”) is the trustee of the LB
Litigation Trust, one of two trusts formed to prosecute
Lyondell’s and other debtors’ claims against shareholder
recipients of a $12.5 billion payout issued by Lyondell.
The
Trustee filed his original complaint on July 22, 2009 against
Floor, among other defendants.
Floor died on February 18, 2010,
and counsel representing both Floor and Currier filed a
Suggestion of Death notifying the parties of Floor’s death on
March 8.
Currier was appointed executor of Floor’s estate on
April 9 by order of a Massachusetts Probate Court.
was not docketed publicly until July 23.1
That order
In draft amended
complaints circulated to all parties in July 2010, the Trustee
replaced “Floor” as a defendant with “The Legal Representative
of the Estate of Richard Floor (deceased).”2
The Trustee filed
his final Amended Complaint on July 23, 2010, asserting a total
of 21 claims against, among other defendants, “The Legal
Representative of the Estate of Richard Floor (deceased).”
At
no point during this time period did counsel for Currier inform
The Trustee had a paralegal telephone the Massachusetts Probate
Court at least on July 1 and July 22. The paralegal was
incorrectly informed that Currier had not yet been appointed.
1
A footnote in the later drafts and in the final Amended
Complaint stated: “Upon information and belief, although not yet
formally appointed, Dianne [sic] Currier will be named as the
Executrix of the Estate of Richard Floor. It is the intention
of the LB Litigation Trust to name as defendant the person who
shall be appointed the legal representative of the Estate of
Richard Floor.”
2
2
the Trustee of Currier’s appointment by the Massachusetts
Probate Court.
On September 24, 2010, Currier filed a motion to dismiss
the Amended Complaint in part on the ground that the Trustee had
not timely substituted Currier as a defendant within the 90-day
deadline specified in Fed. R. Civ. P. 25(a).
for substitution had closed on June 7.
This 90-day period
On November 16, the
Trustee filed a motion pursuant to Rule 25(a) to amend the case
caption to substitute Currier or, in the alternative, extend the
time for substitution pursuant to Fed. R. Civ. P. 6(b).
On
January 4, 2016, the Bankruptcy Court denied Currier’s motion to
dismiss and granted the Trustee’s motion to amend the caption
(the “January 4 Order”).
Currier filed a motion for leave to
appeal the January 4 Order pursuant to 28 U.S.C. § 158(a)(3) on
February 1.
Section 158(a)(3) grants a United States District Court
jurisdiction over appeals from interlocutory orders and decrees
“with leave of the court.”
28 U.S.C. § 158(a)(3).
The parties
agree that in determining whether to grant leave to appeal under
§ 158(a)(3), courts apply the standard described in 28 U.S.C.
§ 1292(b), which governs appeals from interlocutory district
court orders to the courts of appeals.
See, e.g., In re Delphi
Corp., No. M-47 (DLC), 2006 WL 1831526, at *1 (S.D.N.Y. July 5,
2006).
3
Under § 1292(b), an interlocutory appeal is permissible
when it involves “a controlling question of law as to which
there is substantial ground for difference of opinion and . . .
an immediate appeal from the order may materially advance the
ultimate termination of the litigation.”
Even if an
interlocutory order “qualifi[es] for certification under 28
U.S.C. § 1292(b), the certification decision is entirely a
matter of discretion for the district court.”
In re Roman
Catholic Diocese of Albany, New York, Inc., 745 F.3d 30, 36 (2d
Cir. 2014).
The Court of Appeals has emphasized that § 1292(b)
certification should be “strictly limited because only
exceptional circumstances will justify a departure from the
basic policy of postponing appellate review until after the
entry of a final judgment.”
Flor v. BOT Fin. Corp., 79 F.3d
281, 284 (2d Cir. 1996) (per curiam) (citation omitted).
Currier seeks a reversal of the Bankruptcy Court’s ruling
on the grounds that a party cannot establish “excusable neglect”
under Fed. R. Bankr. P. 9006(b) based on events occurring after
the 90-day deadline of Rule 25(a).
Rule 25(a)(1) provides that
If a party dies and the claim is not extinguished, the
court may order substitution of the proper party. A
motion for substitution may be made by any party or by
the decedent’s successor or representative. If the
motion is not made within 90 days after service of a
statement noting the death, the action by or against
the decedent must be dismissed.
4
(emphasis added).
Rule 25 “establishes a time limit,” which
starts running at the “time information of the death is provided
by means of a suggestion of death upon the record.”
Unicorn
Tales, Inc. v. Banerjee, 138 F.3d 467, 469 (2d Cir. 1998)
(citation omitted).
Fed. R. Bankr. P. 9006 provides that the “excusable
neglect” standard “governs the enlargement of time for deadlines
in bankruptcy proceedings.”3
In re Harris, 464 F.3d 263, 270 (2d
Cir. 2006) (citation omitted).
The rule “permits some filings
or other acts to be accepted notwithstanding a missed deadline.
It states that, on the motion of the party, the court may, for
cause shown and in its discretion, ‘permit the act to be done
where the failure to act was the result of excusable neglect.’”
Id. at 270 n.5 (quoting Rule 9006).
The “excusable neglect”
standard under Rule 9006 has been developed in Pioneer Inv.
Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395
(1993), and its line of cases.
In re Lynch, 430 F.3d 600, 605
(2d Cir. 2005).
Excusable neglect is a “somewhat elastic concept.”
In re
Enron, 419 F.3d 115, 121 (2d Cir. 2005) (citation omitted).
An
excusable neglect determination is “at bottom an equitable one.”
Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 366 (2d Cir.
Rule 9006(b) is patterned on Fed. R. Civ. P. 6(b). See Fed. R.
Bankr. P. 9006 advisory committee’s note. Rule 9006(b) and Rule
6(b) contain nearly identical language.
3
5
2003) (citation omitted); see also Coleman v. Sys. Dialing LLC,
No. 15cv3868 (DLC), 2015 WL 9275684, at *4 (S.D.N.Y. Dec. 18,
2015) (granting retrospective Rule 6(b) extension to allow
substitution of administrator for a deceased defendant).
Having reviewed the January 4 Order, there are no
circumstances to warrant granting Currier’s motion for leave to
appeal an interlocutory order.
Accordingly, within the Court’s
discretion, Currier’s February 1, 2016 motion for leave to
appeal is denied.
SO ORDERED:
Dated:
New York, New York
March 22, 2016
__________________________________
DENISE COTE
United States District Judge
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