DZ Bank AG Deutsche Zentral-Genossenschaft Bank, Frankfurt AM Main, New York Branch v. Meyer et al

Filing 11

ORDER denying 5 Meyers' Motion to Dismiss or limit appeal by Judge James L. Robart.(MD)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 In re: CASE NO. C14-0869JLR 11 LOUIS PHILLIPUS MEYER and LYNN MEYER, Bankruptcy No. 14-S009 Adversary Case No. 13-1036-KAO 12 Debtors. 13 14 15 DZ BANK AG DEUTSCHE ZENTRALGENOSSENSCHAFTBANK, FRANKFURT AM MAIN, NEW YORK BRANCH, ORDER DENYING MOTION TO DISMISS OR LIMIT APPEAL 16 Appellant, 17 v. 18 19 LOUIS PHILLIPUS MEYER and LYNN MEYER, Appellees. 20 21 Before the court is Defendants/Appellees Louis and Lynn Meyer’s motion to 22 dismiss or limit this bankruptcy appeal. (Mot. (Dkt. # 5).) In the motion, the Meyers ask ORDER - 1 1 the court to dismiss this appeal or substantially limit its scope because Plaintiff/Appellant 2 DZ Bank AG Deutsche Zentral-Genossenschaftbank, Frankfurt AM Main, New York 3 Branch (“DZ Bank”) filed an untimely notice of appeal. (See id.) 4 Under Federal Rule of Bankruptcy Procedure 8002, a notice of appeal must be 5 filed within 14 days after entry of judgment. Fed. R. Bankr. P. 8002(a). However, “[i]f 6 any party makes a timely motion” to alter or amend the judgment, for a new trial, or for 7 other relief from a judgment or order, this 14 day period runs anew from “the entry of the 8 order disposing of the last such motion outstanding.” Fed. R. Bankr. P. 8002(b). In other 9 words, a party may await the conclusion of post-judgment motion practice before filing a 10 notice of appeal. See id. Once all timely post-judgment motions are decided, either party 11 has 14 days to file a notice of appeal. See id. 12 In this case, DZ Bank filed two post-judgment motions before filing its notice of 13 appeal. The bankruptcy judge entered judgment on February 28, 2014. (Stern Decl. 14 (Dkt. # 5-1) at 4.) On March 14, 2014, 14 days later, DZ Bank filed a timely motion for 15 reconsideration and the Meyers filed a motion for relief from judgment. (Id. at 5, 6.) 16 Nearly two months later, on May 9, 2014, the bankruptcy judge entered orders on the two 17 post-judgment motions, granting the Meyers’ motion, denying DZ Bank’s motion, and 18 entering amended findings of fact and conclusions of law and an amended judgment. (Id. 19 at 7-10.) Thus, on May 9, 2014, the 14-day appeals clock began to run again pursuant to 20 Rule 8002(b). See Fed. R. Bankr. P. 8002(b). After 14 days passed, on May 23, 2014, 21 DZ Bank filed not a notice of appeal but a second motion for reconsideration. (Id. at 11.) 22 This motion for reconsideration requested relief from the amended judgment. (Id.) The ORDER - 2 1 bankruptcy judge denied DZ Bank’s motion seven days later on May 30, 2014, and DZ 2 Bank filed a notice of appeal 14 days after that on June 13, 2014. (Id. at 12-13.) 3 The court must now decide whether the notice of appeal was timely. The Meyers 4 argue that it was not because it was filed more than 14 days after the bankruptcy judge 5 ruled on DZ Bank’s first motion for reconsideration; they assert that DZ Bank’s second 6 motion for reconsideration did not toll the 14-day appeals clock. (See Mot. at 2-3.) DZ 7 Bank argues that its second motion for reconsideration tolled the appeals clock and that 8 therefore its notice of appeal was timely. (Resp. (Dkt. # 8) at 4-6.) 9 This issue is governed by settled law. As a general matter, a party may not use 10 Rule 8002(b) to indefinitely toll the appeals clock by filing post-judgment motion after 11 post-judgment motion. Wages v. I.R.S., 915 F.2d 1230, 1234 n.3 (9th Cir. 1990); In re 12 Brewster, 243 B.R. 51, 56 (9th Cir. BAP 1999) (citing Aybar v. Crispin-Reyes, 118 F.3d 13 10, 14 (1st Cir. 1997)).1 As such, a second motion for relief from or reconsideration of 14 the same judgment will not reset the appeals clock. Brewster, 243 B.R. at 56; see also In 15 re Stangel, 68 F.3d 857, 859 (5th Cir. 1995). However, the situation is different if the 16 court amends the underlying judgment. Wages, 915 F.2d at 1234 n.3; Herrington v. Cnty. 17 of Sonoma, 706 F.2d 938, 939 (9th Cir. 1983); United States v. Geophysical Corp. of 18 Alaska, 732 F.2d 693, 701 (9th Cir. 1984). If the judgment is amended, a second post19 judgment motion will toll the appeals clock if the change in the amended judgment was 20 1 In applying Federal Bankruptcy Rule 8002(b), the Ninth Circuit has held that courts should look to cases interpreting the Rule’s counterpart in the Federal Rules of Appellate Procedure, Rule 4(a)(4). In re Sweet Transfer & Storage, Inc., 896 F.2d 1189, 1192 (1990). The 22 court will therefore rely on Rule 4(a)(4) cases here without further comment. 21 ORDER - 3 1 “material” as opposed to merely the correction of a “true clerical error.” Geophysical 2 Corp., 732 F.2d at 701. 3 Here, the second post-judgment motion tolled the appeals clock. See id. A change 4 to a judgment is “material” if it affects the rights of the parties or the decision to appeal. 5 Id. A change is not material if it merely corrects a clerical error, such as a mistakenly6 entered date or other clerical error. Id. (citing Cnty. of Imperial v. United States, 348 7 F.2d 904, 905 (9th Cir. 1965)). In this case, the amended judgment substantially affected 8 the rights of the parties and may have impacted DZ Bank’s decision to appeal. Most 9 notably, the amended judgment reduced the amount of the judgment against the Meyers 10 by more than half, from $385,000.00 to $123,200.00. (See 5/9/14 Bankr. Order (Dkt. 11 # 1) at 43-51.) The court also corrected an erroneous conclusion of law, concluding that 12 it had committed manifest error the first time around. (Id.) In short, the court corrected 13 its reasoning and arrived at a different damages amount. (See id.) These are material 14 changes that affect the rights of the parties and could affect the decision to appeal. See 15 Geophysical Corp., 732 F.2d at 701. Neither of them could fairly be classified as 16 corrections of “clerical errors.” See id. As such, DZ Bank’s motion for reconsideration 17 of the amended judgment tolled the appeals clock, which began to run anew after the 18 motion was resolved. See id.; Wages, 915 F.2d at 1234 n.3; Herrington, 706 F.2d at 939. 19 // 20 // 21 // 22 // ORDER - 4 1 For these reasons, DZ Bank’s notice of appeal was timely. The Meyers’ motion to 2 dismiss or limit this appeal is DENIED. 3 Dated this 28th day of August, 2014. 4 6 A 7 JAMES L. ROBART United States District Judge 5 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ORDER - 5

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