Alpert et al v. Riley et al
Filing
553
MEMORANDUM AND OPINION entered DENYING 552 MOTION for Reconsideration of 549 Order on Motion to Appoint. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4)
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ROBERT ALPERT, et. al.,
Plaintiffs,
VS.
MARK R. RILEY, et. al.,
Defendants.
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September 14, 2018
David J. Bradley, Clerk
CIVIL ACTION NO. H-04-3774
MEMORANDUM AND OPINION
I.
Background
On September 6, 2013, the court appointed Christopher Gillet as receiver over certain assets
of defendant-debtor Mark Riley. (Docket Entry No. 541). On March 16, 2018, the judgment
creditors moved to substitute the receiver. (Docket Entry No. 548). The court granted the motion
and appointed Robert Berleth as receiver on March 28, 2018. (Docket Entry No. 549). On August
13, 2018, Riley moved for reconsideration of the March 28 order. (Docket Entry No. 552). He asks
the court to vacate the order and deny the judgment creditors’ March 18 motion. (Id. at 2).
II.
Legal Standard
The Federal Rules of Civil Procedure do not formally recognize a motion for reconsideration.
See St. Paul Mercury Ins. Co. v. Fair Grounds Corp., 123 F.3d 336, 339 (5th Cir. 1997) (“[T]he
Federal Rules of Civil Procedure do not recognize a general motion for reconsideration.”). Motions
for reconsideration are treated as motions to alter or amend a judgment under Federal Rule of Civil
Procedure 59(e), or motions for relief from judgment under Rule 60(b), depending on when the
motion is filed. Demahy v. Schwarz Pharm. Inc., No. 11-31073, 2012 WL 5261492, at *2 n.2 (5th
Cir. Oct. 25, 2012) (citing Tex. A & M Research Found. v. Magna Transp., Inc., 338 F.3d 394, 400
(5th Cir. 2003)). A motion for reconsideration is considered under Rule 59(e) if it is filed within 28
days of the court’s ruling, and under Rule 60(b) if it is filed after that. Demahy, 2012 WL 5261492,
at *2 n.2 (citing Tex. A&M, 338 F.3d at 400). This motion is considered under Rule 60(b) because
it was filed more than 28 days after the court’s March 28, 2018 order.
Rule 60(b) of the Federal Rules of Civil Procedure sets out five bases for relief from a final
judgment: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence;
(3) fraud, misrepresentation, or misconduct of an adverse party; (4) the judgment is void; and (5)
satisfaction, discharge, or release of the judgment. FED. R. CIV. P. 60(b) (1)–(5). Rule 60(b)(6) also
allows a court to relieve a party from a final judgment for “any other reason justifying relief from
the operation of the judgment.” FED. R. CIV. P. 60(b)(6). Relief under Rule 60(b)(6) is only granted
when it is not covered by the five enumerated grounds and when “extraordinary circumstances” are
present. Batts v. Tow-Motor Forklift Co., 66 F.3d 743, 747 (5th Cir.1995) (citations omitted). “The
district court enjoys considerable discretion when determining whether the movant has satisfied any
of these Rule 60(b) standards.” Teal v. Eagle Fleet, Inc., 933 F.2d 341, 347 (5th Cir.1991).
Rule 60(b) allows the trial court to “correct obvious errors or injustices.” Fackelman v. Bell,
564 F.2d 734, 736 (5th Cir.1977). A party moving under Rule 60(b) must show “unusual or unique
circumstances.” Pryor v. U.S. Postal Serv., 769 F.2d 281, 286 (5th Cir.1985). A motion to
reconsider may not be used to relitigate matters, raise arguments, or submit evidence that could have
been presented before the judgment or order was entered. 11 WRIGHT & MILLER § 2810.1 at 127–28
(footnotes omitted). “A party seeking reconsideration must show more than disagreement with the
court’s decision and recapitulation of the same cases and arguments already considered by the
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court.” Texaco Exploration & Prod., Inc. v. Smackco, Ltd., No. Civ. A. 98–2293, 1999 WL 539548,
at *1 (E.D. La. July 26, 1999) (citing Plaskon Elec. Materials, Inc. v. Allied-Signal, Inc., 904 F.
Supp. 644, 669 (N.D. Ohio 1995)). A motion for relief under Rule 60(b) is “not a substitute for the
ordinary method of redressing judicial error—appeal.” Chick Kam Choo v. Exxon Corp., 699 F.2d
693, 696 (5th Cir.1983).
III.
Analysis
Riley claims that the judgment creditors “failed to serve [the March 28 motion to substitute
the receiver] on [him] and Christopher Gillet, the [c]ourt appointed receiver, in accordance with Fed.
R. Civ. P. 5 and Local Rule 5.5.” (Docket Entry No. 552 at 2). Riley also claims that the judgment
creditors notified him “of the motion . . . by email on the afternoon of March 27, 2018,” the day
before the court entered the order granting the motion. (Id.). Lastly, Riley observes that although
the court required the first receiver to post a bond in the amount of $1,000, the March 28 order
required a bond of only $100. (Docket Entry Nos. 540, 549).
Riley alleges improprieties and identifies a lowered bond amount, but he does not explain
why he is entitled to relief under Rule 60(b). Nor does he show prejudice, “obvious errors, or
injustice[.]” Bell, 564 F.2d at 736. Riley’s motion for reconsideration, (Docket Entry No. 552),
is denied because he fails to make an argument and appears to only “disagree[] with the court’s
decision.” Texaco Exploration, 1999 WL 539548, at *1.
SIGNED on September 14, 2018, at Houston, Texas.
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Lee H. Rosenthal
Chief United States District Judge
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